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Washington University Law Review

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Full-Text Articles in Law

Faculty List Jan 2018

Faculty List

Washington University Law Review

No abstract provided.


Editorial Board Jan 2018

Editorial Board

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 ...


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 ...


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 ...


Mailing Statement Jan 2018

Mailing Statement

Washington University Law Review

No abstract provided.


Table Of Contents Jan 2018

Table Of Contents

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 ...


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.


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.


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 ...


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 ...