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Washington University Law Review

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Full-Text Articles in Law

Income-Dependent Punitive Damages, Ronen Perry, Elena Kantorowicz-Reznichenko Jan 2018

Income-Dependent Punitive Damages, Ronen Perry, Elena Kantorowicz-Reznichenko

Washington University Law Review

The Article unfolds in six parts. Part I outlines the development of the law governing punitive damages. Part II analyzes the possible rationales for this unique “middle-ground” doctrine, focusing on deterrence and retribution. Part III considers whether the defendant’s wealth should be considered in assessing punitive damages in light of their underlying goals. Part IV demonstrates how the defendant’s wealth can be integrated into the calculation. It extracts the foundations from European criminal justice systems and adapts the model to American civil law. Part V defends the proposed model from the relevant theoretical perspectives. Lastly, Part VI discusses ...


Editorial Board Jan 2018

Editorial Board

Washington University Law Review

No abstract provided.


Table Of Contents Jan 2018

Table Of Contents

Washington University Law Review

No abstract provided.


Mailing Statement Jan 2018

Mailing Statement

Washington University Law Review

No abstract provided.


Faculty List Jan 2018

Faculty List

Washington University Law Review

No abstract provided.


The Corporate Governance Of National Security, Andrew Verstein Jan 2018

The Corporate Governance Of National Security, Andrew Verstein

Washington University Law Review

At hundreds of companies, the government installs former spies and military officers to run the business without shareholder oversight, putting security before profits in order to protect vital projects from potentially treasonous influences. Through procedures I call “National Security Corporate Governance,” corporate boardrooms have quietly become instruments of national defense, marrying the efficiency norms of corporate law and the protective ambitions of national security. How is this achieved, and how successfully? Using a variety of research approaches – including Freedom of Information Act (FOIA) requests, archival searches, telephone interviews, and in-person conversations with industry insiders – this Article illuminates a secretive government ...


Algorithmic Entities, Lynn M. Lopucki Jan 2018

Algorithmic Entities, Lynn M. Lopucki

Washington University Law Review

In a 2014 article, Professor Shawn Bayern demonstrated that anyone can confer legal personhood on an autonomous computer algorithm by putting it in control of a limited liability company. Bayern’s demonstration coincided with the development of “autonomous” online businesses that operate independently of their human owners—accepting payments in online currencies and contracting with human agents to perform the off-line aspects of their businesses. About the same time, leading technologists Elon Musk, Bill Gates, and Stephen Hawking said that they regard human-level artificial intelligence as an existential threat to the human race.

This Article argues that algorithmic entities—legal ...


Decentralized Public Ledger Systems And Securities Law: New Applications Of Blockchain Technology And The Revitalization Of Sections 11 And 12(A)(2) Of The Securities Act Of 1933, Kelsey Bolin Jan 2018

Decentralized Public Ledger Systems And Securities Law: New Applications Of Blockchain Technology And The Revitalization Of Sections 11 And 12(A)(2) Of The Securities Act Of 1933, Kelsey Bolin

Washington University Law Review

When Bitcoin launched in 2009, it was the first virtual cryptocurrency to gain popularity and attain widespread use. Much attention has been paid to Bitcoin’s well-publicized advances and setbacks as the world’s foremost virtual currency. Less attention has been paid, however, to the decentralized public ledger technology that enables Bitcoin to function. That technology is just as innovative as Bitcoin itself. Decentralized public ledgers are a revolution in digital data storage and have the “potential to fundamentally shift the way in which society operates.”

This Note will examine one such societal shift—a change in how shareholders access ...


Shielding Children From Pornography By Incentivizing Private Choice, Karen Hinkley Jan 2018

Shielding Children From Pornography By Incentivizing Private Choice, Karen Hinkley

Washington University Law Review

In March of 2016, Playboy stopped publishing images of naked women in their magazines. According to the company’s chief executive, Scott Flanders, “[the] battle has been fought and won . . . . You’re now one click away from every sex act imaginable for free. And so it’s just passé at this juncture.” In stark contrast to the world of past generations, “[n]ow every teenage boy has an Internet-connected phone . . . . Pornographic magazines, even those as storied as Playboy, have lost their shock value, their commercial value and their cultural relevance.”

One consequence of modern technological advancements is that online pornography ...


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 ...


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.


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 ...


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 ...


Editorial Board Jan 2017

Editorial Board

Washington University Law Review

No abstract provided.


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 ...


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 ...


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 ...


Faculty List Jan 2017

Faculty List

Washington University Law Review

No abstract provided.


Mailing Statement Jan 2017

Mailing Statement

Washington University Law Review

No abstract provided.


Editorial Board Jan 2017

Editorial Board

Washington University Law Review

No abstract provided.


The Supreme Court Acknowledges Congress’ Authority To Confer Informational Standing In Spokeo, Inc. V. Robins, Bradford C. Mank Jan 2017

The Supreme Court Acknowledges Congress’ Authority To Confer Informational Standing In Spokeo, Inc. V. Robins, Bradford C. Mank

Washington University Law Review

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III standing beyond what was considered an injury under the American or English common law. Some commentators had thought Spokeo might overrule the Court’s prior decisions in Akins and Public Citizen, which both held that a plaintiff may have ...


Table Of Contents Jan 2017

Table Of Contents

Washington University Law Review

No abstract provided.


Table Of Contents Jan 2017

Table Of Contents

Washington University Law Review

No abstract provided.


Faculty List Jan 2017

Faculty List

Washington University Law Review

No abstract provided.


Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew Hall Jan 2017

Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew Hall

Washington University Law Review

Two provisions of the U.S. Constitution that have received comparatively little public attention over the past 227 years are suddenly all over the news, having provided the basis for three pending lawsuits against the president of the United States. The Foreign and Domestic Emoluments Clauses arose out of the Founders’ concern with corruption – in particular with the corrupting effects of gifts, payments, or benefits conferred on federal office holders either by foreign governments or their agents, or by any of the states constituting the United States. The founders viewed the risk of corruption stemming from such payments as so ...


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.


Closing The Financial Privacy Loophole: Defining “Access” In The Right To Financial Privacy Act, W. F. Mcelroy Jan 2017

Closing The Financial Privacy Loophole: Defining “Access” In The Right To Financial Privacy Act, W. F. Mcelroy

Washington University Law Review

Part I of this Note will discuss the Miller decision and the hole it left in the Fourth Amendment’s protection of financial information left in the hands of trusted third parties. Part II will discuss Congress’s response to Miller in the RFPA. Part III will discuss the cramped interpretation of the RFPA affirmed by the Sixth Circuit, its misapplication of the statute, and policy problems arising from the acceptance of the court’s interpretation. Part IV will discuss statutory injuries and how the ambiguous outcome of the Spokeo case could threaten financial privacy protections generally and those specifically ...