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Articles 1 - 30 of 139
Full-Text Articles in Law
When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl
When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl
Scholarly Articles
In this article, Drumbl explores return preparer regulation as a policy matter and questions what would be gained by applying Circular 230 to return preparers.
Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck
Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck
Scholarly Articles
In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.
Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller
Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller
Washington and Lee Law Review Online
The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.
The Role Of The Courts In Time Of War, William C. Banks
The Role Of The Courts In Time Of War, William C. Banks
Washington and Lee Law Review Online
The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding …
The Still-Dwindled Revlon, Lyman P.Q. Johnson, Robert Ricca
The Still-Dwindled Revlon, Lyman P.Q. Johnson, Robert Ricca
Washington and Lee Law Review Online
This is a brief Response to Professor Mohsen Manesh’s extensive response to our original article, The Dwindling of Revlon. Our thesis is that today the iconic Revlon doctrine is, remedially, quite substantially diminished. Although Professor Manesh sets out to establish what he calls “the limits of Johnson’s and Ricca’s thesis,” we here maintain, as before, that there is little remedial clout to Revlon unless directors or others very significantly misbehave. We also criticize Delaware’s continuing use of the standard-of-conduct/standard-of-review construct in the fiduciary duty area. This rubric is unhelpful generally and strikingly so in the Revlon setting, as we …
United States V. Erwin And The Folly Of Intertwined Cooperation And Plea Agreements, Kevin Bennardo
United States V. Erwin And The Folly Of Intertwined Cooperation And Plea Agreements, Kevin Bennardo
Washington and Lee Law Review Online
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should …
Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P.Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman
Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P.Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman
Scholarly Articles
In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are “persons” that can “exercise religion,” the Department of Health and Human Services (“HHS”) proposed new rules defining “eligible organizations.” Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and …
Human Dignity, Crime Prevention, And Mass Incarceration: A Meaningful, Practical Comparison Across Borders, Nora V. Demleitner
Human Dignity, Crime Prevention, And Mass Incarceration: A Meaningful, Practical Comparison Across Borders, Nora V. Demleitner
Scholarly Articles
Not available.
Outsourcing Corporate Accountability, Kishanthi Parella
Outsourcing Corporate Accountability, Kishanthi Parella
Scholarly Articles
This Article addresses the problem of preventing human rights violations abroad that result from the globalization of business. It specifically explores the challenge of improving labor standards in global value chains. The modern business has changed dramatically and has “gone global” in order to court foreign markets and secure resources, including labor. Familiar household names, such as Nike and Apple, have “outsourced” many of their functions to suppliers overseas. As multinational buyers, they dominate one end of the global value chain. At the opposite end of the value chain are the local managers and owners of the factories and workhouses …
Nearing 30, Is Revlon Showing Its Age?, Mohsen Manesh
Nearing 30, Is Revlon Showing Its Age?, Mohsen Manesh
Washington and Lee Law Review Online
Nearly thirty years ago, in Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court famously dictated that in certain transactions involving a “sale or change in control,” the fiduciary obligation of a corporation’s board of directors is simply to “get[] the best price for the stockholders.” Applying a novel remedial perspective to this iconic doctrine, in The Dwindling of Revlon, Professor Lyman Johnson and Robert Ricca argue that Revlon is today of diminishing significance. In the three decades since, the coauthors observe, corporate law has evolved around Revlon, dramatically limiting the remedial clout of …
Brief Of Professors At Law And Business Schools As Amici Curiae In Support Of Respondents: Omnicare, Inc., Et Al. V. Laborers District Council Construction Industry Pension Fund, Et Al., Celia Taylor, Lyman P.Q. Johnson, J. Robert Brown, Joan Macleod Heminway
Brief Of Professors At Law And Business Schools As Amici Curiae In Support Of Respondents: Omnicare, Inc., Et Al. V. Laborers District Council Construction Industry Pension Fund, Et Al., Celia Taylor, Lyman P.Q. Johnson, J. Robert Brown, Joan Macleod Heminway
Scholarly Articles
None available.
Blurred Lines: Analyzing An Attorney’S Duties To A Fiduciary-Client’S Beneficiaries, Daniel R. Nappier
Blurred Lines: Analyzing An Attorney’S Duties To A Fiduciary-Client’S Beneficiaries, Daniel R. Nappier
Washington and Lee Law Review
No abstract provided.
Dynamic Common Law And Technological Change: The Classification Of Bitcoin, Shawn Bayern
Dynamic Common Law And Technological Change: The Classification Of Bitcoin, Shawn Bayern
Washington and Lee Law Review Online
Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.
Did New York State Just Anoint Virtual Currencies By Proposing To Regulate Them, Or Will Regulation Spoil Them For Some?, Sarah Jane Hughes
Did New York State Just Anoint Virtual Currencies By Proposing To Regulate Them, Or Will Regulation Spoil Them For Some?, Sarah Jane Hughes
Washington and Lee Law Review Online
This Essay previews issues raised by the general subject of regulating virtual currencies and the specific efforts of New York State’s Department of Financial Services’ proposed Virtual Currency Regulatory Framework (the BitLicense) in particular. It focuses on five topics in the proposal and their interplay with the current regulation of “money services” and “money transmission” in other states, using the Commonwealth of Virginia and the State of Washington approaches on a few common topics for comparison purposes. It also asks whether regulation of virtual currencies is likely to cause more widespread adoption of virtual currencies or to frustrate the proponents …
Combatting Cyber-Attacks Through National Interest Diplomacy: A Trilateral Treaty With Teeth, Lawrence L. Muir Jr.
Combatting Cyber-Attacks Through National Interest Diplomacy: A Trilateral Treaty With Teeth, Lawrence L. Muir Jr.
Washington and Lee Law Review Online
In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: State-controlled cyberunits can act with impunity under the present mix of international and domestic law. No laws govern conduct between nation-states, and, thus, neither victims nor nation-states have recourse against violators. This Article suggests that the United States should pursue national interest diplomacy to triangulate …
Calling Foul: Deficiencies In Approaches To Environmental Whistleblowers And Suggested Reforms, Emily Becker
Calling Foul: Deficiencies In Approaches To Environmental Whistleblowers And Suggested Reforms, Emily Becker
Washington and Lee Journal of Energy, Climate, and the Environment
Whistleblowers could facilitate the regulation of the environmental sector at little to no cost to the taxpayer. Often, potential whistleblowers have timely access to information that would enable them to avert or minimize environmental damage and to protect our communities. However, existing federal and state regulations fail to adequately protect environmental whistleblowers and to incentivize potential environmental whistleblowers. These failures unjustly penalize whistleblowers and discourage potential whistleblowers. This article uses research findings and a case study to illuminate these failings and to argue for reforms that would better protect and incentivize whistleblowers
Digital Value Transfer Systems, Edward Castronova
Digital Value Transfer Systems, Edward Castronova
Washington and Lee Law Review Online
A “digital value transfer system” (DVT) is a computer program that moves purchasing power from one person to another by exchanging different forms of virtual currency. In this Essay, I will give examples of DVTs and explain how they work. Then I will use the economic theory of budgets to explain how DVTs increase the liquidity and reach of all forms of virtual money. In effect, DVTs make all forms of currency, from dollars to frequent-flyer miles, essentially equivalent in terms of purchasing power. I conclude with a brief discussion of the possible implications of DVTs for the economy and …
Smart Contracts, Bitcoin Bots, And Consumer Protection, Joshua A.T. Fairfield
Smart Contracts, Bitcoin Bots, And Consumer Protection, Joshua A.T. Fairfield
Washington and Lee Law Review Online
Trustless public ledgers (“TPLs”)—the technology underneath Bitcoin—do more than just create online money. The technology permits people to directly exchange money for what they want, with no intermediaries, such as credit card companies. Contract law is the law of bargained-for exchange, so a technology that enables direct exchange online will change the reality of online contracting. The current problem with consumer contracting online is that courts and companies have collaborated to create an online system in which consumers cannot bargain. Under the current regime, consumers have no choice but to click the “I Accept” button. Online, contract law is not …
Proportionality, Pretrial Confidentiality, And Discovery Sharing, Dustin B. Benham
Proportionality, Pretrial Confidentiality, And Discovery Sharing, Dustin B. Benham
Washington and Lee Law Review
No abstract provided.
Mad Money: Rethinking Private Placements, Abraham J.B. Cable
Mad Money: Rethinking Private Placements, Abraham J.B. Cable
Washington and Lee Law Review
Currently, regulations try to limit unregistered sales of stock (private placements) to the “smart money,” either by informing investors through disclosure or excluding unsophisticated investors from the market. In theory, these smart-money approaches promote the dual goals of capital formation and investor protection. But in practice, regulators have struggled to craft effective disclosure or screening mechanisms. In light of these failures, this Article advocates for a new approach—investment caps that allow every investor a limited amount of “mad money” to invest in risky private placements. This mad-money approach can protect investors by encouraging basic diversification and liquidity, while advancing capital …
Table Of Contents
Washington and Lee Journal of Energy, Climate, and the Environment
No abstract provided.
Masthead & Front Matter
Washington and Lee Journal of Energy, Climate, and the Environment
Masthead & Front Matter
Billionaires, Birds, And Environmental Brawls: Reconceptualizing Energy Easements, Nadia B. Ahmad
Billionaires, Birds, And Environmental Brawls: Reconceptualizing Energy Easements, Nadia B. Ahmad
Washington and Lee Journal of Energy, Climate, and the Environment
In the substantial power outages associated with Hurricane Sandy and the 2013 Oklahoma tornadoes and Colorado floods, which left millions without power, the United States witnessed the insufficiency of its existing energy infrastructure. The lack of access to reliable energy widens the cleavage between the rich and poor, particularly in times of disaster and crisis. Policymakers and government regulators involved with long distance energy transmission projects have not adequately instituted laws and policies for existing and future energy access. This Article holds that current regulations, practices, and norms for long distance energy transmission may be doomed because of complications with …
Vulnerability And Power In The Age Of The Anthropocene, Angela P. Harris
Vulnerability And Power In The Age Of The Anthropocene, Angela P. Harris
Washington and Lee Journal of Energy, Climate, and the Environment
Feminist legal theorist Martha Fineman has suggested that recognition of universal human “vulnerability” should be the starting point for thinking about the state’s obligations to its citizens. This Article argues that Fineman’s concept of vulnerability is valuable for situating political and legal theory within a concern for the natural world. We live in what some scientists have dubbed the Anthropocene—an age in which our collective behavior has serious implications for the flourishing of all life on earth. The concept of “ecological vulnerability” recognizes that humans are vulnerable not only because they age, become ill, and die, but because their survival …
The Imos Climate Change Challenge: Application Of The Principle Of Common But Differentiated Responsibilities And Respective Capabilities, Stathis N. Palassis
The Imos Climate Change Challenge: Application Of The Principle Of Common But Differentiated Responsibilities And Respective Capabilities, Stathis N. Palassis
Washington and Lee Journal of Energy, Climate, and the Environment
Since 1997 the International Maritime Organization, the United Nations agency responsible for the regulation of the international shipping sector, has been developing rules for the reduction of the sector’s greenhouse gas emissions. Significant difficulties have, however, emerged in the creation of appropriate economic instruments for reducing its greenhouse gas emissions, bringing to the forefront the application of the principle of common but differentiated responsibilities and respective capabilities (“CBBDRC”). A key principle within international climate change law, CBDDRC allows developing States, least developed States and the most environmentally vulnerable to be differentially treated based on their special situation and needs. Developing …
Ferc Anti-Manipulation Enforcement And The Barclays Proceeding: What Factors Should Regulated Entities Consider Before Deciding To Follow Barclays' Path To Federal Court?, Matthew Hale
Washington and Lee Journal of Energy, Climate, and the Environment
Energy regulation is not a new topic, but after the Enron scandal, Congress made significant changes. The changes were embodied in the Energy Policy Act of 2005. One major change was to FERC's ability to hand down penalties for market manipulation. Recently, FERC has been aggressively enforcing its power and anticipates anti-manipulation enforcement will be a point of emphasis in the future. The first entity to challenge FERC's power in federal court is Barclays. The Barclays case, other recent enforcement actions, and the regulations FERC has promulgated provide a guide to regulated entities about how and when they should challenge …
Water You Waiting For? Balancing Private Rights And Public Necessity In The South Atlantic Wetlands, Alison Leary
Water You Waiting For? Balancing Private Rights And Public Necessity In The South Atlantic Wetlands, Alison Leary
Washington and Lee Journal of Energy, Climate, and the Environment
A healthy and robust network of wetlands protects coastal communities from storm damage caused by hurricanes. Unfortunately, development pressures threaten wetlands along the South Atlantic coast, the region most susceptible to an increased risk of climate change induced hurricanes. If these wetlands are not protected from destruction, coastal communities will be left without a buffer against flooding, storm damage, and sea level rise. In addition to putting the public at large in physical danger, significant environmental justice concerns accompany the failure to protect coastal wetlands. In order to protect these ever-diminishing resources, federal and state law makers have enacted regulatory …
Fracking Preemption Litigation, James K. Pickle
Fracking Preemption Litigation, James K. Pickle
Washington and Lee Journal of Energy, Climate, and the Environment
Fracking is not a new technology, but it only recently came to the forefront of energy industry news. Fracking’s recent fame has been both positive and negative. Fracking proponents have lauded the economic and environmental benefits of the process. They cite the process’ ability to extract formerly inaccessible oil and natural gas, which reduces the U.S.’s demand for foreign oil and natural gas and reduces the use of coal. In contrast, fracking opponents state fracking damages the environment by diluting drinking water with harmful chemicals, generating emissions, and creating general nuisances for communities. They believe fracking’s harmful impacts clearly outweigh …
Dr. Carb Or: How I Learned To Stop Worrying About The Feds And Love States’ Rights, Dan Strong
Dr. Carb Or: How I Learned To Stop Worrying About The Feds And Love States’ Rights, Dan Strong
Washington and Lee Journal of Energy, Climate, and the Environment
Climate change is one of the largest environmental problems the world is currently facing. At the forefront of the climate change issue is the problem of carbon emissions. Environmentalists were hopeful that a national regulatory structure would be created with the enactment of the Clean Air Act in the 1970s. Since its enactment, however, it is clear the Clean Air Act was not the solution to the national carbon emissions problem environmentalists were hoping for. With the federal government failing to act, states have taken it upon themselves to regulate carbon emissions. California, with its enactment of the California Low …
Masthead And Front Matter
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.