Law Commons^™

Introduction To Property, History & Climate Change In The Former Colonies Symposium Special Issue, Jill M. Fraley

Scholarly Articles

None available.

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Scholarly Articles

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where …

Florida V. Jardines: The Wolf At The Castle Door, Timothy C. Macdonnell

Scholarly Articles

The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Florida v. Jardines decision of the U.S. Supreme Court. The article will begin by examining the cases that make up the Supreme Court's contraband exception and some of the Court's precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court's holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the …

Jurisdictional Sequencing, Alan M. Trammell

Scholarly Articles

Jurisdictional sequencing taps into fundamental questions about the nature and role of subject matter jurisdiction and what, if anything, a court may do before it has established jurisdiction. Because the Supreme Court has not rooted the doctrine in a clear theory, jurisdictional sequencing has engendered confusion among judges and scholars, who have been at a loss to explain it. Although a number of courts have embraced the leeway that the doctrine offers—the ability to dismiss a case on easier grounds before taking up harder jurisdictional questions—most scholars have criticized it as illegitimate or incoherent. This Article is the first to …

Apologies In The Marketplace, Kish Vinayagamoorthy

Scholarly Articles

In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational …

Just Because You Can Doesn’T Mean You Should: Reconciling Attorney Conduct In The Context Of Defamation With The New Professionalism, Heather M. Kolinsky

Scholarly Articles

The Florida Bar has recently proposed enforceable professionalism standards. While many states have professionalism codes they remain aspirational and unenforceable. Florida’s move toward enforceable professionalism standards is laudable, but raises concerns about how moving a “step above” the floor of the rules of professional conduct will affect advocacy and practice.

This paper examines how a shift to enforceable professionalism standards may impact absolute immunity. The paper suggests that as other states consider similar standards or simply how to better policy professionalism, perhaps it is time to also consider how discipline is imposed with respect to defamatory statements that are otherwise …

Equal Protection For Children Of Same-Sex Parents, Catherine E. Smith

Scholarly Articles

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge—a legal claim that is separate and distinct from that of the child’s gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents’ relationship, and laws …

Beyond “Life And Liberty”: The Evolving Right To Counsel, John D. King

Scholarly Articles

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The …

Those Who Know, Those Who Don't, And Those Who Know Better: Balancing Complexity, Sophistication, And Accuracy On Tax Returns, Michelle Lyon Drumbl

Scholarly Articles

Refundable credits, particularly the earned income tax credit (EITC) and the child tax credit, serve an important anti-poverty measure for low-income taxpayers. Annually, millions of taxpayers who do not owe any federal income tax must file a tax return in order to claim these credits that are in the nature of social benefits. The eligibility requirements for refundable credits are complex, and these returns are particularly prone to audit: EITC audits comprise one-third of all individual income tax audits. Because of the large dollar amounts at stake, a taxpayer’s mistaken understanding of the eligibility requirements for these refundable credits can …

Is The Corporate Director's Duty Of Care A 'Fiduciary' Duty? Does It Matter?, Christopher M. Bruner

Scholarly Articles

While reference to "fiduciary duties" (plural) is routinely employed in the United States as a convenient short-hand for a corporate director's duties of care and loyalty, other common-law countries generally treat loyalty as the sole "fiduciary duty." This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware's convoluted and problematic framework for evaluating disinterested board conduct been facilitated by styling care a "fiduciary" duty? If so, then how should Delaware lawmakers and judges respond moving forward?

In …

Process For The Dispossessed: Procedural Rights From Magna Carta To Modern International Law, Mark A. Drumbl

Scholarly Articles

Due process matters greatly to distinguished philosopher Larry May, who advocates for a vigourous assertion of procedural rights as constituting an international rule of law. He undertakes this ambitious, a la fois aspirational, task in Global Justice and Due Process.

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Scholarly Articles

None available.

Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner

Scholarly Articles

American "populism" has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose - the aims toward which society expects corporate decision-making to be directed. This article assesses the impact of American populism upon prevailing conceptions of corporate purpose - contrasting its unique expression in the context of financial firms with that arising in other contexts - and then examines its impact upon corporate governance reforms enacted in the wake of the financial …

Anonymous Speech On The Internet, In Amateur Media: Social, Cultural And Legal Perspectives (Dan Hunter Et Al. Eds., 2013), Brian C. Murchison

Books and Chapters

The U.S. legal community is engaged in a serious but inconclusive dialogue on issues relating to anonymous speech on the Internet. To be sure, several basic questions relevant to Internet speech have been settled: in a 1997 case; the Supreme Court determined that strict scrutiny applies to Internet content regulation, and in a 1995 case, the Court recognized a First Amendment right of anonymous speech. Yet the 1995 case did not arise in an Internet setting, and the scope of expressive freedom in certain Internet scenarios remains disputed. Over the past ten years, courts and commentators have grappled with anonymous …

Transcending Victimhood: Child Soldiers And Restorative Justice, In Victims Of International Crimes: An Interdisciplinary Discourse (Thorsten Bonacker & Christoph Safferling Eds., 2013), Mark A. Drumbl

Books and Chapters

The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This chapter, which takes a second look at these efforts, aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. As a starting point, this chapter proposes that the dominant language used to characterise child soldiers—that of passive victimhood—be revisited so as to better recognise the potentiality of child soldiers to participate in and lead post-conflict reconstructive efforts. This chapter suggests a variety of …

¿Y Si No Me Quiero Separar Así? Flexibilizando El Derecho De Separación, Fernando Loayza Jordán

Scholarly Articles

El autor realiza una crítica pormenorizada al artículo 200 de la Ley General de Sociedades, críticaen la cual, propone el cambio de la categoría imperativa de la norma por una de categoría dispositiva. Establece supuestos que beneficien a la separación a favor de los inversionistas y accionistas minoritarios. Propone una regulación atractiva para hacer que las transferencias de acciones sean más dinámicas y atractivas. Todo lo anterior, con el fin de beneficiar los intereses tanto de la sociedad como de los accionistas, tutelando sus derechos de manera más efectiva.

Information Privacy And Data Control In Cloud Computing: Consumers, Privacy Preferences, And Market Efficiency, Jay P. Kesan, Carol M. Hayes, Masooda N. Bashir

Washington and Lee Law Review

So many of our daily activities now take place “in the cloud,” where we use our devices to tap into massive networks that span the globe. Virtually every time that we plug into a new service, the service requires us to click the seemingly ubiquitous box indicating that we have read and agreed to the provider’s terms of service (TOS) and privacy policy. If a user does not click on this box, he is denied access to the service, but agreeing to these terms without reading them can negatively impact the user’s legal rights. As part of this work, we …

Invisible Histories & The Failure Of Protected Classes, Jill M. Fraley

Scholarly Articles

Our legal history suggests that the evolution of our discrimination law has been and likely should be the continuing enumeration of protected classes. There is, however, a counter-intuitive problem: protecting specific groups suggests to the public that everyone else is fair game, providing implicit legitimacy to other harmful stereotypes. To illustrate this problem this article constructs the legal history of stereotypes and prejudicial acts against Appalachians, a marginalized group that does not fit neatly in the protected categories. Considering then how our courts have treated the relationship between stereotypes and discrimination, along with recent sociological evidence, this article suggests that …

Is Hedge Fund Adviser Registration Necessary To Accomplish The Goals Of The Dodd–Frank Act’S Title Iv?, Luther R. Ashworth Ii

Washington and Lee Law Review

No abstract provided.

The Public Pension Crisis , Jack M. Beermann

Washington and Lee Law Review

Unfunded employee pension obligations will present a serious fiscal problem to state and local governments in the not-toodistant future. This Article takes a look at the causes and potential cures for the public pension mess, mainly through the lens of legal doctrines that limit public employers’ ability to avoid obligations. As far as the causes are concerned, this Article examines the political environment within which public pension promises are made and funded, as an attempt to understand how this occurred. The Article then turns to ask if states could implement meaningful reforms without violating either state or federal law. In …

Why Strickland Is The Wrong Test For Violations Of The Right To Testify, Daniel J. Capra, Joseph Tartakovsky

Washington and Lee Law Review

A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important “personal” rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant’s right to testify. This Article proposes a new test to better secure and enforce …

When Certainty Dissolves Into Probability: A Legal Vision Of Toxic Causation For The Post-Genomic Era, Steve C. Gold

Washington and Lee Law Review

Proof of causation in toxic torts has presented persistent problems for the legal system, because the probabilities that science can know fit poorly with the demands for particularistic proof imposed by the law’s deterministic model of causation. Some scholars have hoped that genomic and molecular information will at last provide scientific certainty—definitive, individualized proof of toxic causation. This Article argues that the opposite is true. Scientific research will increasingly elucidate the ways in which environmental exposures and human genes interact to produce disease, but this deeper knowledge will extend rather than resolve the problem of causal indeterminacy in toxic torts. …

Docket Dividends: Growth In Shareholder Litigation Leads To Refinements In Chancery Procedures, Donald F. Parsons Jr., Jason S. Tyler

Washington and Lee Law Review

No abstract provided.

Risk-Based Student Loans , Michael Simkovic

Washington and Lee Law Review

No abstract provided.

Sheltering Psychiatric Patients From The Deshaney Storm: A Proposed Analysis For Determining Affirmative Duties To Voluntary Patients, Claire Marie Hagan

Washington and Lee Law Review

No abstract provided.

Joshua’S Children: Constitutional Responsibility For Institutionalized Persons After Deshaney V. Winnebago County, Susan Stefan

Washington and Lee Law Review

No abstract provided.

Proceedings Of The Seventh International Humanitarian Law Dialogs, Recent Developments In International Criminal Law: 2012–2013, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl’s keynote address on August 27, 2013 at the Seventh International Humanitarian Law Dialogs held in Chautauqua, New York.

Why Register Hedge Fund Advisers—A Comment, Lyman P.Q. Johnson

Washington and Lee Law Review

No abstract provided.

Vertical Boilerplate, James Gibson

Washington and Lee Law Review

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the …

Review: Is Hedge Fund Registration Necessary? , J. W. Verret

Washington and Lee Law Review

No abstract provided.