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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 misplaced …


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 large corporations …


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 “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 speaker could have …


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.


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) …


“Merchants And Thieves, Hungry For Power”: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin Jun 2016

“Merchants And Thieves, Hungry For Power”: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

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.


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.


Table Of Contents Jun 2016

Table Of Contents

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.


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.


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, his diminished mental …


The Death Penalty And Mental Illness In International Human Rights Law: Toward Abolition, Richard J. Wilson Jun 2016

The Death Penalty And Mental Illness In International Human Rights Law: Toward Abolition, Richard J. Wilson

Washington and Lee Law Review

No abstract provided.


The Commonwealth Of Virginia V. Joseph Michael Giarratano: A Cautionary Tale, Todd C. Peppers Jun 2016

The Commonwealth Of Virginia V. Joseph Michael Giarratano: A Cautionary Tale, Todd C. Peppers

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.


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 …


Masthead And Front Matter Jun 2016

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


The Supreme Court’S Talmudic Debate On The Meanings Of Guilt, Innocence, And Finality, Jonathan D. Colan Jun 2016

The Supreme Court’S Talmudic Debate On The Meanings Of Guilt, Innocence, And Finality, Jonathan D. Colan

Washington and Lee Law Review

No abstract provided.


The Demise Of Capital Clemency, Paul J. Larkin Jr. Jun 2016

The Demise Of Capital Clemency, Paul J. Larkin Jr.

Washington and Lee Law Review

No abstract provided.


Squeezing Public Schools’ Lemons: Theorizing An Adequacy Challenge To Teacher Tenure, Peter M. Szeremeta Jun 2016

Squeezing Public Schools’ Lemons: Theorizing An Adequacy Challenge To Teacher Tenure, Peter M. Szeremeta

Washington and Lee Law Review

No abstract provided.


To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Shah Arora Apr 2016

To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Shah Arora

Washington and Lee Law Review

When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyze such cases, so the law is inconsistent. This Article suggests, first, that the lack of consistency is a …


Taking Patents, Gregory Dolin, Irena D. Manta Apr 2016

Taking Patents, Gregory Dolin, Irena D. Manta

Washington and Lee Law Review

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …


How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck Apr 2016

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.


The Separation Of Corporate Law And Social Welfare, William W. Bratton Apr 2016

The Separation Of Corporate Law And Social Welfare, William W. Bratton

Washington and Lee Law Review

No abstract provided.


Foreign Governments As Plaintiffs In U.S. Courts And The Case Against “Judicial Imperialism”, Hannah L. Buxbaum Apr 2016

Foreign Governments As Plaintiffs In U.S. Courts And The Case Against “Judicial Imperialism”, Hannah L. Buxbaum

Washington and Lee Law Review

One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a …


Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones Apr 2016

Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones

Washington and Lee Law Review

No abstract provided.


Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley Apr 2016

Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley

Washington and Lee Law Review

In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud. Yet, …


Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach Apr 2016

Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach

Washington and Lee Law Review

No abstract provided.