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Washington and Lee Law Review

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Full-Text Articles in Law

Table Of Contents Apr 2017

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Masthead And Front Matter Apr 2017

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Examining Rule 11(B)(1)(N) Error: Guilty Pleas, Appellate Waiver, And Dominguez Benitez, Leanna C. Minix Jan 2017

Examining Rule 11(B)(1)(N) Error: Guilty Pleas, Appellate Waiver, And Dominguez Benitez, Leanna C. Minix

Washington and Lee Law Review

No abstract provided.


You Buy It, You Break It: A Comment On Dispersing The Cloud, Aaron Perzanowski Jan 2017

You Buy It, You Break It: A Comment On Dispersing The Cloud, Aaron Perzanowski

Washington and Lee Law Review

No abstract provided.


Dispersing The Cloud: Reaffirming The Right To Destroy In A New Era Of Digital Property, Daniel Martin Jan 2017

Dispersing The Cloud: Reaffirming The Right To Destroy In A New Era Of Digital Property, Daniel Martin

Washington and Lee Law Review

No abstract provided.


Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene Jan 2017

Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene

Washington and Lee Law Review

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly ...


Testation And The Mind, Adam J. Hirsch Jan 2017

Testation And The Mind, Adam J. Hirsch

Washington and Lee Law Review

This Article explores the panoply of state-of-mind rules in inheritance law. In areas of law concerned with wrongdoing, consideration of mental states achieves specific deterrence and moral justice. By comparison, in the inheritance realm, I argue that consideration of mental states can serve to economize on decision costs. The Article looks at state-of-mind rules through this prism and also analyzes the public policy of these rules from the perspective of modern research into psychology. Finally, the Article examines state-of-mind rules comparatively, identifying inconsistencies between them that require justification. The Article closes by observing potential expansions of the model and applications ...


Recasting Vagueness: The Case Of Teen Sex Statutes, Cynthia Godsoe Jan 2017

Recasting Vagueness: The Case Of Teen Sex Statutes, Cynthia Godsoe

Washington and Lee Law Review

When two minors below the age of consent have sex, who is the victim and who is the offender? Statutory rape law makes consensual sex among minors illegal in almost every state. Where half of high school students have had intercourse, the law’s immense scope and inevitable underenforcement allow prosecutors to virtually define the crime by the tiny percentage of cases they choose. Through the lens of peer statutory rape, this Article introduces and critiques “vaguenets”—broad, under-defined laws that punish widespread and largely harmless conduct, and invite selective enforcement. Like problematic police dragnet searches, the immense sweep of ...


Hybrid Transactions And The Internet Of Things: Goods, Services, Or Software?, Stacy-Ann Elvy Jan 2017

Hybrid Transactions And The Internet Of Things: Goods, Services, Or Software?, Stacy-Ann Elvy

Washington and Lee Law Review

The Internet of Things (IOT) has been described by the American Bar Association as “one of the fastest emerging,” potentially most “transformative and disruptive technological developments” in recent years. The security risks posed by the IOT are immense and Article 2 of the UCC should play a central role in determinations regarding liability for vulnerable IOT products. However, the lack of explicit clarity in the UCC on how to evaluate Article 2’s applicability to hybrid transactions that involve the provision of goods, services, and software has led to conflicting case law on this issue, which contradicts the UCC’s ...


Table Of Contents Jan 2017

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Masthead And Front Matter Jan 2017

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield Jan 2017

Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield

Washington and Lee Law Review

No abstract provided.


Commercial Bribery: Choice And Measurement Within A Remedies Smorgasbord, Doug Rendleman Jan 2017

Commercial Bribery: Choice And Measurement Within A Remedies Smorgasbord, Doug Rendleman

Washington and Lee Law Review

Searching for the most suitable money remedy for a simple commercial bribe promptly lands a lawyer, judge, professor, student, or researcher in a remedial smorgasbord. De- emphasizing injunctions, commercial bribery offers a spectrum of monetary remedies.

The plaintiff has two defendants, the briber and the bribee. He has two major remedies, damages and restitution. The overlapping policies consist of compensating the plaintiff, preventing the defendants’ unjust enrichment, deterring the defendants and others, and punishing the defendants. Courts implement these policies with compensatory damages, restitution, and punitive damages. A bribe can be returned as damages or restitution, a significant distinction. Punishment ...


Waivering About The Dirty Business Of Plea Bargains—A Comment, Jonathan Shapiro Jan 2017

Waivering About The Dirty Business Of Plea Bargains—A Comment, Jonathan Shapiro

Washington and Lee Law Review

No abstract provided.


The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo Sep 2016

The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo

Washington and Lee Law Review

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the ...


Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Kristin Johnson, Steven A. Ramirez, Cary Martin Shelby Sep 2016

Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Kristin Johnson, Steven A. Ramirez, Cary Martin Shelby

Washington and Lee Law Review

No abstract provided.


Guns And Alienage: Correcting A Dangerous Contradiction, D. Mcnair Nichols Jr. Sep 2016

Guns And Alienage: Correcting A Dangerous Contradiction, D. Mcnair Nichols Jr.

Washington and Lee Law Review

No abstract provided.


The Rhetoric Of The Fourth Amendment: Toward A More Persuasive Fourth Amendment, Timothy C. Macdonnell Sep 2016

The Rhetoric Of The Fourth Amendment: Toward A More Persuasive Fourth Amendment, Timothy C. Macdonnell

Washington and Lee Law Review

In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a common source for all unpersuasive opinions is not available, common patterns of weak persuasion in particular appeals do exist. Weak appeals to ethos commonly stem from Justices failing to fully confront the doctrine of stare decisis. Weak pathos-based appeals often involve Justices engaging in ...


Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong Sep 2016

Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong

Washington and Lee Law Review

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL ...


Intrapreneurship, Darian M. Ibrahim Sep 2016

Intrapreneurship, Darian M. Ibrahim

Washington and Lee Law Review

This Article on “intrapreneurship” has several goals. First, it points out that while much of the legal literature on innovation is concerned with startups (entrepreneurship), the innovation that takes place inside our largest corporations (intrapreneurship) is substantial, important, and understudied. Second, the Article observes that while large technology corporations that used to be startups may remain intrapreneurial in culture, intrapreneurship is less common in the aggregate than we might expect. Reasons include organizational bureaucracy, laws favoring entrepreneurship, and what Clayton Christensen (Harvard Business School) calls “the innovator’s dilemma.” The innovator’s dilemma is, put simply, that good management causes ...


A Firm Law For Sanctions: Taking A Stance On Whether 28 U.S.C. § 1927 Should Apply To Law Firms, Jessica A. Winn Sep 2016

A Firm Law For Sanctions: Taking A Stance On Whether 28 U.S.C. § 1927 Should Apply To Law Firms, Jessica A. Winn

Washington and Lee Law Review

No abstract provided.


Post-Trial Plea Bargaining In Capital Cases: Using Conditional Clemency To Remove Weak Cases From Death Row, Adam M. Gershowitz Jun 2016

Post-Trial Plea Bargaining In Capital Cases: Using Conditional Clemency To Remove Weak Cases From Death Row, Adam M. Gershowitz

Washington and Lee Law Review

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal ...


Solitary Confinement Until Death By State-Sponsored Homicide: An Eighth Amendment Assessment Of The Modern Execution Process, Robert Johnson Jun 2016

Solitary Confinement Until Death By State-Sponsored Homicide: An Eighth Amendment Assessment Of The Modern Execution Process, Robert Johnson

Washington and Lee Law Review

No abstract provided.


Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett Jun 2016

Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett

Washington and Lee Law Review

No abstract provided.


Lethal Injection: A Horrendous Brutality, Robin C. Konrad Jun 2016

Lethal Injection: A Horrendous Brutality, Robin C. Konrad

Washington and Lee Law Review

No abstract provided.


Masthead And Front Matter Jun 2016

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Table Of Contents Jun 2016

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Rate Me: Risk Assessment Drones And The Resurrection Of Discriminatory Insurance Practices, Lucas M. Barta Jun 2016

Rate Me: Risk Assessment Drones And The Resurrection Of Discriminatory Insurance Practices, Lucas M. Barta

Washington and Lee Law Review

No abstract provided.


Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Phyllis Goldfarb Jun 2016

Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Phyllis Goldfarb

Washington and Lee Law Review

No abstract provided.


Mental Illness, Severe Emotional Distress, And The Death Penalty: Reflections On The Tragic Case Of Joe Giarratano, Richard J. Bonnie Jun 2016

Mental Illness, Severe Emotional Distress, And The Death Penalty: Reflections On The Tragic Case Of Joe Giarratano, Richard J. Bonnie

Washington and Lee Law Review

Joe Giarratano was on death row for twelve years, and remains incarcerated today, because mental illness and severe emotional distress wholly undermined reliable adjudication in his case. Using Giarratano’s remarkable story as a case study, I illustrate some of the ways in which mental illness and acute emotional distress can lead to unreliable findings and judgments and—even worse—can actually propel the criminal justice system toward a death sentence. I cover the unreliability of his confession, his impaired ability to assist counsel, his impaired capacity to make a rational decision regarding whether to initiate or continue post-conviction proceedings ...