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Washington and Lee Law Review

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Full-Text Articles in Law

The Practice And Tax Consequences Of Nonqualified Deferred Compensation, David I. Walker Feb 2019

The Practice And Tax Consequences Of Nonqualified Deferred Compensation, David I. Walker

Washington and Lee Law Review

Although nonqualified deferred compensation plans lack explicit tax preferences afforded to qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after-tax return on deferred sums than employees could achieve on their own. But the joint tax advantage depends critically on how plans are operated; chiefly how plan sponsors use or invest deferred compensation dollars. This is the first Article to systematically investigate nonqualified deferred compensation practices. It shows that joint tax minimization historically has taken a backseat to accounting priorities and participant diversification concerns. In recent years, the ...


Sentence For The Damned: Using Atkins To Understand The “Irreparable Corruption” Standard For Juvenile Life Without Parole, Zachary Crawford-Pechukas Feb 2019

Sentence For The Damned: Using Atkins To Understand The “Irreparable Corruption” Standard For Juvenile Life Without Parole, Zachary Crawford-Pechukas

Washington and Lee Law Review

This Note suggests that guidance should be drawn from the Supreme Court’s death penalty jurisprudence regarding the execution of intellectually disabled offenders. Atkins v. Virginia paved the way for the juvenile sentencing cases as the Supreme Court for the first time found that, under the Eighth Amendment, a selected class of offenders—the intellectually disabled — were not eligible for the state’s harshest penalty—the death penalty— because of their diminished culpability. Atkins similarly left the state courts to figure out how to decide whether an individual offender met this amorphous standard, “intellectually disabled.” As state courts grappled with ...


Facing The Inevitable: The Inevitable Disclosure Doctrine And The Defend Trade Secrets Act Of 2016, M. Claire Flowers Feb 2019

Facing The Inevitable: The Inevitable Disclosure Doctrine And The Defend Trade Secrets Act Of 2016, M. Claire Flowers

Washington and Lee Law Review

Multiple federal courts have recognized and applied the inevitable disclosure doctrine in cases brought by employers against former employees under the DTSA. The inevitable disclosure doctrine allows a business to temporarily enjoin the new employment of a former employee by a competitor on the theory that the employee learned confidential information while working for that business which the employee cannot possibly forget or refrain from relying on during her employment with the competitor. The application of this doctrine under the DTSA is controversial for two reasons. First, some states refuse to recognize the inevitable disclosure doctrine due, in part, to ...


Table Of Contents Feb 2019

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka Feb 2019

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka

Washington and Lee Law Review

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.


Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman Feb 2019

Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman

Washington and Lee Law Review

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages ...


Artificial Intelligence And Patent Ownership, W. Michael Schuster Feb 2019

Artificial Intelligence And Patent Ownership, W. Michael Schuster

Washington and Lee Law Review

Invention by artificial intelligence (AI) is the future of innovation. Unfortunately, as discovered through Freedom of Information Act requests, the U.S. patent regime has yet to determine how it will address patents for inventions created solely by AI (AI patents). This Article fills that void by presenting the first comprehensive analysis on the allocation of patent rights arising from invention by AI. To this end, this Article employs Coase Theorem and its corollaries to determine who should be allowed to secure these patents to maximize economic efficiency. The study concludes that letting firms using AI to create new technologies ...


Marriage Equality Comes To The Fourth Circuit, Carl Tobias Feb 2019

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Washington and Lee Law Review

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit ...


Masthead And Front Matter Feb 2019

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Masthead And Front Matter Nov 2018

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Immigrant Defense Funds For Utopians, César Cuauhtémoc García Hernández Nov 2018

Immigrant Defense Funds For Utopians, César Cuauhtémoc García Hernández

Washington and Lee Law Review

No abstract provided.


287(G) Agreements In The Trump Era, Huyen Pham Nov 2018

287(G) Agreements In The Trump Era, Huyen Pham

Washington and Lee Law Review

No abstract provided.


Expedited Removal And Due Process: “A Testing Crucible Of Basic Principle” In The Time Of Trump, Daniel Kanstroom Nov 2018

Expedited Removal And Due Process: “A Testing Crucible Of Basic Principle” In The Time Of Trump, Daniel Kanstroom

Washington and Lee Law Review

No abstract provided.


The Authoritarianization Of U.S. Counterterrorism, Sahar F. Aziz Nov 2018

The Authoritarianization Of U.S. Counterterrorism, Sahar F. Aziz

Washington and Lee Law Review

No abstract provided.


Table Of Contents Nov 2018

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Administrative Chaos: Responding To Child Refugees—U.S. Immigration Process In Crisis, Lenni B. Benson Nov 2018

Administrative Chaos: Responding To Child Refugees—U.S. Immigration Process In Crisis, Lenni B. Benson

Washington and Lee Law Review

No abstract provided.


Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen Nov 2018

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Washington and Lee Law Review

My intended focus is on the widespread response—in cities, churches, campuses, and corporations that together comprise “sanctuary networks”1—to the Trump Administration’s Executive Order 13768 Enhancing Public Safety in the Interior of the United States2 as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.


Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade Nov 2018

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Washington and Lee Law Review

No abstract provided.


National Security, Immigration And The Muslim Bans, Shoba Sivaprasad Wadhia Nov 2018

National Security, Immigration And The Muslim Bans, Shoba Sivaprasad Wadhia

Washington and Lee Law Review

No abstract provided.


Deconstructing “Sanctuary Cities”: The Legality Of Federal Grant Conditions That Require State And Local Cooperation On Immigration Enforcement, Peter Margulies Nov 2018

Deconstructing “Sanctuary Cities”: The Legality Of Federal Grant Conditions That Require State And Local Cooperation On Immigration Enforcement, Peter Margulies

Washington and Lee Law Review

No abstract provided.


In Defense Of Hearth And [Foster] Home: Determining The Constitutionality Of State Regulation Of Firearm Storage In Foster Homes, Joseph G. Duchane Nov 2018

In Defense Of Hearth And [Foster] Home: Determining The Constitutionality Of State Regulation Of Firearm Storage In Foster Homes, Joseph G. Duchane

Washington and Lee Law Review

No abstract provided.


Patently Absurd: Critiquing The Uspto’S Disparate Treatment Of Tribal And State Immunity In Inter Partes Review, Maya Ginga Nov 2018

Patently Absurd: Critiquing The Uspto’S Disparate Treatment Of Tribal And State Immunity In Inter Partes Review, Maya Ginga

Washington and Lee Law Review

No abstract provided.


A Tribute To Professor Mark H. Grunewald, Samuel W. Calhoun, Robert T. Danforth, Sidney S. Evans, Edward O. Henneman, Andrew W. Mcthenia, Brian C. Murchison, Joan M. Shaughnessy, Barry Sullivan, John W. Vardaman, Mark A. Williams May 2018

A Tribute To Professor Mark H. Grunewald, Samuel W. Calhoun, Robert T. Danforth, Sidney S. Evans, Edward O. Henneman, Andrew W. Mcthenia, Brian C. Murchison, Joan M. Shaughnessy, Barry Sullivan, John W. Vardaman, Mark A. Williams

Washington and Lee Law Review

No abstract provided.


Table Of Contents Apr 2018

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher Apr 2018

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Washington and Lee Law Review

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood ...


Masthead And Front Matter Apr 2018

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


The Gatekeepers Of Crowdfunding, Andrew A. Schwartz Apr 2018

The Gatekeepers Of Crowdfunding, Andrew A. Schwartz

Washington and Lee Law Review

Securities crowdfunding is premised on two core policy goals: inclusivity and efficiency. First, crowdfunding is conceived as an inclusive system where all entrepreneurs are given a chance to pitch their idea to the “crowd.” Second, crowdfunding is supposed to be an efficient way to channel funds from public investors to promising startup companies. There is a fundamental tension between these two policy goals, however. A totally inclusive system would ensure that platforms list any and every company that wants to participate. But platforms need to curate and select the companies they list in order to establish a reputation as a ...


In Or Out: How To Treat Foreign Taxes Under The Economic Substance Doctrine, Roland Hartung Apr 2018

In Or Out: How To Treat Foreign Taxes Under The Economic Substance Doctrine, Roland Hartung

Washington and Lee Law Review

No abstract provided.


Cash For Your Conscience: Do Whistleblower Incentives Improve Enforcement Of The Foreign Corrupt Practices Act?, Amy Deen Westbrook Apr 2018

Cash For Your Conscience: Do Whistleblower Incentives Improve Enforcement Of The Foreign Corrupt Practices Act?, Amy Deen Westbrook

Washington and Lee Law Review

No abstract provided.


Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe Apr 2018

Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe

Washington and Lee Law Review

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak ...