Law Commons^™

Defending Democracy: Taking Stock Of The Global Fight Against Digital Repression, Disinformation, And Election Insecurity, Scott J. Shackelford, Angie Raymond, Abbey Stemler, Cyanne Loyle

Washington and Lee Law Review

Amidst the regular drumbeat of reports about Russian attempts to undermine U.S. democratic institutions from Twitter bots to cyber-attacks on Congressional candidates, it is easy to forget that the problem of election security is not isolated to the United States and extends far beyond safeguarding insecure voting machines. Consider Australia, which has long been grappling with repeated Chinese attempts to interfere with its political system. Yet Australia has taken a distinct approach in how it has sought to protect its democratic institutions, including reclassifying its political parties as “critical infrastructure,” a step that the U.S. government has yet to take …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Say The Magic Words: Establishing A Historically Informed Standard To Prevent Partisanship From Shielding Racial Gerrymanders From Federal Judicial Review, Emily K. Dalessio

Washington and Lee Law Review

In its 2019 decision in Rucho v. Common Cause, the Supreme Court closed the doors of the federal courts to litigants claiming a violation of their constitutional rights based on partisan gerrymandering. In Rucho, the Court held that partisan gerrymandering presents a political question that falls outside the jurisdiction of the federal courts. However, the Supreme Court did not address an insidious consequence of this ruling: namely, that map-drawers may use partisan rationales to obscure what is otherwise an unconstitutional racial gerrymander. This Note uses North Carolina as an example of a state with a long history of …

Politicians As Fiduciaries: Public Law V. Private Law When Altering The Date Of An Election, Steven J. Cleveland

Washington and Lee Law Review

In the 2019 decision Rucho v. Common Cause, the U.S. Supreme Court concluded that federal challenges to partisan gerrymandering—a practice yielding election results that “reasonably seem unjust”—were non-justiciable. If partisan gerrymandering claims are not federally justiciable, and if that conclusion emboldens politicians, how else might incumbents manipulate election mechanics to preserve their political advantage? This Article explores one possibility that was briefly mentioned by the Rucho majority: the strategic advancement or delay of the date of a federal election. The strategic shift of election day is not simply a theoretical problem. Foreign politicians have strategically altered their election days …

The Digital Samaritans, Eldar Haber

Washington and Lee Law Review

Bystanderism is becoming largely digital. If being subjected to perilous situations was once reserved almost solely for the physical world, individuals now might witness those in peril digitally from afar via online livestreams. New technological developments in the field of artificial intelligence (AI) might also expand bystanderism to new fields, whereby machines—not just humans—are gradually positioned to better compute their surroundings, thus potentially being capable of reaching a high statistical probability that a perilous situation is currently taking place in their vicinity. This current and future expansion of bystanderism into the digital world forms a rather new type of digital …

Real Insider Trading, Michael A. Perino

Washington and Lee Law Review

In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. The debate has, to this point, been based mostly on anecdote and conjecture rather than empirical evidence. This Article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess …

Tribute To Professor Samuel W. Calhoun, Doug Ammar, David Carson, Kelly Faglioni, John Fishwick, Mark Grunewald, Stephen Halpin, Brandon Hasbrouck, Brant Hellwig, Lyman Johnson, Bill Johnston, Rick Kirgis, Brian Murchison, Joan Shaughnessy, Howard Wall

Washington and Lee Law Review

A tribute to Professor Samuel W. Calhoun, who served on the faculty of the Washington and Lee University School of Law from 1978 to 2020. Calhoun became Professor of Law, Emeritus in 2020.

The Independent Board As Shield, Gregory H. Shill

Washington and Lee Law Review

The fiduciary duty of loyalty bars CEOs and other executives from managing companies for personal gain. In the modern public corporation, this restriction is reinforced by a pair of institutions: the independent board of directors and the business judgment rule. In isolation, each structure arguably promotes manager fidelity to shareholder interests—but together, they enable manager prioritization. This marks a particularly striking turn for the independent board. Its origin story and raison d’être lie in protecting shareholders from opportunism by managers, but it functions as a shield for managers instead.

Numerous defects in the design and practice of the independent board …

Federal Magistrate Court Of Appeals: Whether Magistrate Judge Disposition Of Section 2255 Motions Under Consent Jurisdiction Is Statutorily And Constitutionally Permissible, Corey J. Hauser

Washington and Lee Law Review

For decades the Supreme Court has balanced the tension between judicial efficiency and adherence to our constitutional system of separation of powers. As more cases were filed in federal courts, Congress increased the responsibilities and power given to magistrate judges. The result is magistrate judges wielding as much power as district judges. With post-conviction relief under § 2255, magistrate judges take on a whole new role— appellate judge—reviewing and potentially overturning sentences imposed by district judges.

This practice raises two concerns. First, did Congress intend to statutorily give magistrate judges this power? The prevailing interpretation is that § 2255 motions …

Tribute To Professor Mary Z. Natkin, David Carson, Christine Greene, Mark Grunewald, Howard Highland, Brianne Kleinert, Brian C. Murchison, Debbie Price, Sheryl Salm, Joan Shaughnessy

Washington and Lee Law Review

A tribute to Professor Mary Z. Natkin, who served on the faculty of the Washington and Lee University School of Law from 1987 to 2020. Professor Natkin is also an alumna of W&L Law, having graduated with the Class of 1985.

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

No Injury? No Class: Proof Of Injury In Federal Antitrust Class Actions Post-Wal-Mart, Rami Abdallah Elias Rashmawi

Washington and Lee Law Review

Over the past twenty years the Supreme Court of the United States has systematically limited the scope of federal class actions brought under Rule 23 of the Federal Rules of Civil Procedure. Importantly, in two landmark decisions, Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, the Supreme Court cemented a heightened level of inquiry demanded by Rule 23, a stringent, “rigorous analysis.”

This Note analyses the effects of this heightened inquiry on federal antitrust class actions, particularly in situations where the plaintiffs’ method of proving antitrust injury fails to do so for some of the putative class …

Delaware As Deal Arbiter, Christina M. Sautter

Washington and Lee Law Review

Most would agree that the Delaware courts are the leading jurists in the resolution of corporate conflicts, particularly in the Mergers & Acquisitions (M&A) context. Arguably a greater role that Delaware plays is that of a norm setter, both with respect to the expectations of management conduct in the M&A process and with respect to deal terms, particularly deal protection devices. Like in any relationship, there is a “give and take” between practitioners and Delaware. That is, practitioners are “on the front lines,” often innovating with respect to new deal structures and deal terms. After some time, Delaware has the …

Contract Design, Default Rules, And Delaware Corporate Law, Jeffrey Manns, Robert Anderson

Washington and Lee Law Review

Incomplete contract theory recognizes that contracts cannot be comprehensive and that state law necessarily has to fill in gaps when conflicts arise. The more complex the transaction, the more that lawyers face practical constraints that force them to limit the scope of drafting and broadly rely on legal defaults and open-ended terms to plug holes and address contingencies. In theory Delaware law serves as lawyers’ preferred jurisdiction and forum for merger and acquisition (M&A) transactions and other high-end corporate deals because of the state’s superior default rules for corporate law and its judiciary’s expertise in discerning the “hypothetical bargain” of …

Adversarial Failure, Benjamin P. Edwards

Washington and Lee Law Review

Investors, industry firms, and regulators all rely on vital public records to assess risk and evaluate securities industry personnel. Despite the information’s importance, an arbitration-facilitated expungement process now regularly deletes these public records. Often, these arbitrations recommend that public information be deleted without any true adversary ever providing any critical scrutiny to the requests. In essence, poorly informed arbitrators facilitate removing public information out of public databases. Interventions aimed at surfacing information may yield better informed decisions. Although similar problems have emerged in other contexts when adversarial systems break down, the expungement process to purge information about financial professionals provides …

The Lost Lessons Of Shareholder Derivative Suits, Jessica Erickson

Washington and Lee Law Review

Merger litigation has changed dramatically. Today, nearly every announcement of a significant merger sparks litigation, and these cases look quite different from merger cases in the past. These cases are now filed primarily outside of Delaware, they typically settle without shareholders receiving any financial consideration, and corporate boards now have far more ex ante power to shape these cases. Although these changes are often heralded as unprecedented, they are not. Over the past several decades, derivative suits experienced many of the same changes. This Article explores the similarities between the recent changes in merger litigation and the longer history of …

Another Collateral Consequence: Kicking The Victim When She’S Down, Lauren N. Hancock

Washington and Lee Law Review

Every state has a victim compensation fund that provides financial relief to victims of crime who have no other way to pay for medical expenses, funeral costs, crime scene cleanup, or other costs associated with the crime. States impose their own eligibility requirements to determine which victims can receive funding. Six states prohibit victims with certain criminal histories from obtaining compensation. This means that innocent victims of crime are left with nowhere to turn because of something that they already “paid” for. This leaves victims, who are likely already in a financially precarious situation due to their felon status, with …

Extraterritorial Rights In Border Enforcement, Fatma E. Marouf

Washington and Lee Law Review

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small, but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Limited Privacy In “Pings:” Why Law Enforcement’S Use Of Cell-Site Simulators Does Not Categorically Violate The Fourth Amendment, Lara M. Mcmahon

Washington and Lee Law Review

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after …

Kids, Not Commodities: Proposing A More Protective Interpretation Of The Child Sex Trafficking Statute For Victims And Defendants, Kimberly Blasey

Washington and Lee Law Review

This Note addresses how courts should interpret the “reasonable opportunity to observe” standard when assessing evidence. In other words, what quantum of evidence is, and should be, sufficient to prove a defendant had a “reasonable opportunity to observe” a sex trafficking victim? Would a singular brief encounter with an older-appearing prostitute satisfy the standard? If so, would the mere fact that the “prostitute” was actually a minor be the only evidence needed to obtain a conviction? Or would the defendant’s intention and attempt to order services from an adult prostitute shed light on the reasonableness of his observation opportunity? Moreover, …

Taxation Of Electronic Gaming, Bryan T. Camp

Washington and Lee Law Review

At a doctrinal level, the subject of this Article is timely. During this time of the coronavirus pandemic, casinos have been closed and large populations have been subject to stay-home orders from local and state authorities. One can reasonably expect a large increase in electronic gaming and thus an increased need for proper consideration of its taxation. This Article argues for a cash-out rule of taxation.

At a deeper level, the subject of this Article is timeless. Tax law is wickedly complex for a reason. This Article explores that complexity using the example of electronic gaming. It grapples with the …

Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe

Washington and Lee Law Review

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …

Inadequate Protection: Examining The Due Process Rights Of Individuals In Child Abuse And Neglect Registries, Amanda S. Sen, Stephanie K. Glaberson, Aubrey Rose

Washington and Lee Law Review

This Article seeks to advance due process protections for people included in state child abuse and neglect registries. Between states, there are differences in the types of cases included in the state registry and the process required to be placed on or removed from the registry. To obtain judicial due process review, a plaintiff must demonstrate that a protected liberty or property interest is at stake. When federal courts have evaluated the individual liberty interest(s) implicated by placement on state child abuse and neglect registries, they have so far only found such an interest when the plaintiff’s employment opportunities were …

To Protect Freedom Of Expression, Why Not Steal Victory From The Jaws Of Defeat?, Evelyn Mary Aswad

Washington and Lee Law Review

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation.

Those concerns were …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

The Dilemma Of Interstatutory Interpretation, Anuj C. Desai

Washington and Lee Law Review

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court …