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Washington University Law Review

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Case Refusal: A Right For The Public Defender But Not A Remedy For The Defendant, John P. Gross Jan 2017

Case Refusal: A Right For The Public Defender But Not A Remedy For The Defendant, John P. Gross

Washington University Law Review

Various arguments have been made to explain why public defenders continue to handle excessive caseloads: a lack of independence, organizational culture, or ethical blindness among them. All of these arguments are based on the idea that a public defender elects to labor under an excessive caseload either because they do not see it as excessive or because they realize it is but believe a refusal will lead to adverse consequences for themselves. In this essay, I argue that the decision to maintain an excessive caseload may not always be attributable to self- interest on the part of the public defender ...


Return Of The De Minimis Exception In Digital Music Sampling: The Ninth Circuit's Recent Holding In Vmg Salsoul Improves Upon The Sixth Circuit's Holding In Bridgeport, But Raises Questions Of Its Own, Francesco Di Cosmo Jan 2017

Return Of The De Minimis Exception In Digital Music Sampling: The Ninth Circuit's Recent Holding In Vmg Salsoul Improves Upon The Sixth Circuit's Holding In Bridgeport, But Raises Questions Of Its Own, Francesco Di Cosmo

Washington University Law Review

Sampling is a musical production practice that has become increasingly common since the 1980s. A producer samples by copying a section of a sound recording and inserting it into the piece of music she is producing. The type of sound recording sampled by producers can vary vastly from piece to piece. Numerous pop and hip hop songs sample from songs of various genres (rock, classical music, or other pop songs, for example). Audio from a film, commercial, or speech may also be inserted into a song. Typically, the purpose of these samples is either to make use of the musical ...


Drawing The Line On Legislative Privilege: Interpreting State Speech Or Debate Clauses In Redistricting Litigation, J. Pierce Lamberson Jan 2017

Drawing The Line On Legislative Privilege: Interpreting State Speech Or Debate Clauses In Redistricting Litigation, J. Pierce Lamberson

Washington University Law Review

The United States Constitution and forty-three state constitutions include a Speech or Debate Clause granting legislators a legal privilege for their legislative work.1 Although there is a well-developed body of federal Speech or Debate Clause law granting an absolute privilege to legislators, case law interpreting many state Speech or Debate Clauses is undeveloped.2 One context in which state Speech or Debate Clauses are tested is redistricting litigation.3 State courts provide a desirable forum for challengers seeking to expose partisan gerrymandering in redistricting plans.4 Because the potential for exposing partisan gerrymandering increases if state legislators’ statements and ...


Consumer Financial Protection In Health Care, Erin C. Fuse Brown Jan 2017

Consumer Financial Protection In Health Care, Erin C. Fuse Brown

Washington University Law Review

There are inadequate consumer protections from harmful medical billing practices that result in unavoidable, unexpected, and often financially devastating medical bills. The problem stems from the increasing costs shifting to patients in American health care and the inordinate complexity that makes health care transactions nearly impossible for consumers to navigate. A particularly outrageous example is the phenomenon of surprise medical bills, which refers to unanticipated and involuntary out-of-network bills in emergencies or from out-of- network providers at in-network facilities. Other damaging medical billing practices include the opaque and à la carte nature of medical bills, epitomized by added “facility fees ...


Mailing Statement Jan 2017

Mailing Statement

Washington University Law Review

No abstract provided.


Faculty List Jan 2017

Faculty List

Washington University Law Review

No abstract provided.


Editorial Board Jan 2017

Editorial Board

Washington University Law Review

No abstract provided.


Table Of Contents Jan 2017

Table Of Contents

Washington University Law Review

No abstract provided.


Time Is Money: An Empirical Assessment Of Non-Economic Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson Jan 2017

Time Is Money: An Empirical Assessment Of Non-Economic Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson

Washington University Law Review

Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of fifty-one U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (per diem) or demand a specific amount (lump sum). Either sort of large number could exploit an irrational anchoring effect.

We performed a realistic, online, video-based experiment with 732 human subjects. We replicated prior work showing that large lump sum demands drive larger jury verdicts, but surprisingly found no effect of similarly-sized per diem anchors. We did find per diem effects on binary liability outcomes, and ...


Editorial Board Jan 2017

Editorial Board

Washington University Law Review

No abstract provided.


Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele Gilman, Karen Levy, Alice Marwick Jan 2017

Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele Gilman, Karen Levy, Alice Marwick

Washington University Law Review

This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions ...


Constitutional Concerns In Section 8 Housing: Transfer Voucher Terminations And The Impact On Participant Families, Amanda R. Engel Jan 2017

Constitutional Concerns In Section 8 Housing: Transfer Voucher Terminations And The Impact On Participant Families, Amanda R. Engel

Washington University Law Review

Currently, there is a procedural due process void in the existing Section 8 housing regulations, which is having immediate, harmful effects on program participants. When a Section 8 Housing Assistance Program participant wishes to move, he receives a transfer voucher from the local Public Housing Agency (PHA). The PHA then has the discretion to choose not to extend the term of this transfer voucher, effectively terminating the family’s participation in the program. Despite the ramifications of the local PHA’s decision, the participant family has no right to a pre-termination hearing, where they can present their case and appeal ...


Averting Educational Crisis: Funding Cuts, Teacher Shortages, And The Dwindling Commitment To Public Education, Derek W. Black Jan 2017

Averting Educational Crisis: Funding Cuts, Teacher Shortages, And The Dwindling Commitment To Public Education, Derek W. Black

Washington University Law Review

Recent data shows that two-thirds of states are funding education at lower levels than in 2008. Some states are 20% or more below levels of just a few years earlier. The effect on schools has been devastating. States are only exacerbating the problem by reducing teachers’ rights and benefits. These attacks, combined with funding decreases, have scared many prospective teachers away from the profession. The net result is an extreme shortage of teachers nationwide. When the school year began in 2015, a large number of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and ...


Crossed Wires: Outdated Perceptions Of Electronic Communications In The Nlrb's Purple Communications Decision, Harrison C. Kuntz Jan 2017

Crossed Wires: Outdated Perceptions Of Electronic Communications In The Nlrb's Purple Communications Decision, Harrison C. Kuntz

Washington University Law Review

The National Labor Relations Board (the NLRB or the Board) has recently emphasized the need to adjust to the rapid pace of change in modern society.1 The recognition of employees’ right to use employer-owned email systems for protected activities in its December 2014 Purple Communications decision purported to establish a central pillar of this effort.2 Purple Communications reversed the NLRB’s 2007 Register Guard holding that employees do not have the right to use employer-owned electronic resources for protected activities.3 However, the Board’s rationale in Purple Communications reflected an understanding of electronic resources that was more ...


Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu Jan 2017

Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu

Washington University Law Review

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that “tarnish” a trademark. Copyright owners also articulate fears of tarnishing uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of works will find the tarnished works less valuable afterwards. This Article presents two novel experimental tests of the tarnishment hypothesis, focusing on unauthorized ...


Faculty List Jan 2017

Faculty List

Washington University Law Review

No abstract provided.


Activist Hedge Funds And The Corporation, Martijn Cremers, Saura Masconale, Simone M. Sepe Jan 2017

Activist Hedge Funds And The Corporation, Martijn Cremers, Saura Masconale, Simone M. Sepe

Washington University Law Review

The long-term effects of hedge fund activism are controversial. Some empirical studies document that activism is associated with increased long-term firm value, suggesting that activists can better discipline management. Other studies, however, challenge these results, arguing that the incorporation of possible selection effects exposes activism as detrimental to long-term firm value.

This Article contributes to this ongoing debate, producing novel empirical evidence on the relationship between activist campaigns, the financial value of firms, key governance arrangements, and corporate legal rules. We first document qualitative evidence that untargeted “control” firms sharing similar characteristics to targeted firms perform better in the long ...


Table Of Contents Jan 2017

Table Of Contents

Washington University Law Review

No abstract provided.


Editorial Board Jan 2017

Editorial Board

Washington University Law Review

No abstract provided.


Mailing Statement Jan 2017

Mailing Statement

Washington University Law Review

No abstract provided.


Innovation Snowballing And Climate Law, Zachary Liscow, Quentin Karpilow Jan 2017

Innovation Snowballing And Climate Law, Zachary Liscow, Quentin Karpilow

Washington University Law Review

Findings at the frontier of economics suggest startling implications of an under-appreciated fact about technological development: innovation builds on itself, developing path dependencies in which past innovations attract similar, but more advanced, innovations. Innovation snowballs. The world economy needs to undergo a dramatic transformation to avoid the risk of catastrophic effects from climate change. Policy to encourage this transformation should be sensitive to innovation snowballing.

The conventional policy view has long been that, to address a social harm like pollution, the right response is simply to tax the behavior causing the harm, leading to a variety of responses including induced ...


Advisory Nonpreemption, Sarah E. Light Jan 2017

Advisory Nonpreemption, Sarah E. Light

Washington University Law Review

We are living in an era of dramatic and unpredictable technological and business innovation. Federal agencies have been at the forefront of updating substantive legal rules to meet new challenges not originally contemplated by Congress. Yet some innovations—for example, autonomous vehicles—also upset longstanding allocations of authority between the federal and state governments. Significant uncertainty about whether local or national concerns will predominate as innovations develop requires temporary flexibility in allocations of regulatory authority. This Article identifies a new method that federal agencies can use to promote such flexibility before the initiation of a rulemaking or before Congress acts ...


Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader Jan 2017

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Washington University Law Review

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep- seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars in federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability—as ...


Judging Aggregate Settlement, David M. Jaros, Adam S. Zimmerman Jan 2017

Judging Aggregate Settlement, David M. Jaros, Adam S. Zimmerman

Washington University Law Review

While courts historically have taken a hands-off approach to settlement, judges across the legal spectrum have begun to intervene actively in “aggregate settlements”—repeated settlements between the same parties or institutions that resolve large groups of claims in a lockstep manner. In large-scale litigation, for example, courts have invented, without express authority, new “quasi-class action” doctrines to review the adequacy of massive settlements brokered by similar groups of attorneys. In recent and prominent agency settlements, including ones involving the SEC and EPA, courts have scrutinized the underlying merits to ensure settlements adequately reflect the interests of victims and the public ...


Who Owns Human Capital?, Lily Kahng Jan 2017

Who Owns Human Capital?, Lily Kahng

Washington University Law Review

This Article analyzes the tax law’s capital income preference through the lens of intellectual capital, an increasingly important driver of economic productivity whose value derives primarily from workers’ knowledge, experience and skills. The Article discusses how business owners increasingly are able to “propertize” labor into intellectual capital—to capture the returns on their workers’ labor by embedding it in intellectual property and to restrict workers’ ability to employ their skills and knowledge elsewhere. The Article then shows how the tax law provides significant subsidies to the process of propertization and thereby contributes to the inequitable distribution of returns between ...


Determining Ownership And Control Of Ipv4 Addresses, Benjamin Shantz Jan 2017

Determining Ownership And Control Of Ipv4 Addresses, Benjamin Shantz

Washington University Law Review

The creation of the Internet ushered in an era of unprecedented legal challenges as jurists and legislators struggled to keep up with rapidly evolving technology.1 Chief among these issues is whether certain types of intangible data, specifically Internet Protocol addresses2 (IP addresses), can be owned and treated as intangible property. The world has nearly exhausted its supply of unique IPv4 addresses and the property rights of individuals utilizing IPv4 addresses are poorly defined. This area of law has not been subject to robust examination by the US court system. A few recent bankruptcy cases have tangentially reached the issue ...


Dying For Leave: How Societal Views On End-Of-Life Care Pushed Ballard To Expand The Meaning Of Care Under The Family And Medical Leave Act, Katherine Vaky Jan 2017

Dying For Leave: How Societal Views On End-Of-Life Care Pushed Ballard To Expand The Meaning Of Care Under The Family And Medical Leave Act, Katherine Vaky

Washington University Law Review

The Seventh Circuit’s recent decision in Ballard v. Chicago Park District shook employers and employment law attorneys to their core, forcing reevaluation of what it means to care for a family member with a serious medical condition under the Family and Medical Leave Act (FMLA). Ballard, a former employee of the Chicago Park District, requested FMLA leave to take her terminally-ill mother on vacation to Las Vegas as part of her mother’s end-of-life plan, constructed by her mother and her mother’s hospice team. The Seventh Circuit agreed with Ballard that her employer should have granted FMLA leave ...


Bitproperty And Commercial Credit, Christopher K. Odinet Jan 2017

Bitproperty And Commercial Credit, Christopher K. Odinet

Washington University Law Review

In the past several years, the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets, ranging from Twitter and Facebook to YouTube and virtual world accounts, is nearly absolute. Indeed, by one account, Americans check social media over seventeen times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six- and seven-figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws ...


Fissures In The Valley: Searching For A Remedy For U.S. Tech Workers Indirectly Displaced By H-1b Visa Outsourcing Firms, Kenneth M. Geisler Ii Jan 2017

Fissures In The Valley: Searching For A Remedy For U.S. Tech Workers Indirectly Displaced By H-1b Visa Outsourcing Firms, Kenneth M. Geisler Ii

Washington University Law Review

No abstract provided.


How Lambis And Csli Litigation Mandate Warrants For Cell-Site Simulator Usage In New York, Cindy D. Ham Jan 2017

How Lambis And Csli Litigation Mandate Warrants For Cell-Site Simulator Usage In New York, Cindy D. Ham

Washington University Law Review

No abstract provided.