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Washington and Lee Law Review

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Full-Text Articles in Law

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka Feb 2019

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka

Washington and Lee Law Review

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.


Sentence For The Damned: Using Atkins To Understand The “Irreparable Corruption” Standard For Juvenile Life Without Parole, Zachary Crawford-Pechukas Feb 2019

Sentence For The Damned: Using Atkins To Understand The “Irreparable Corruption” Standard For Juvenile Life Without Parole, Zachary Crawford-Pechukas

Washington and Lee Law Review

This Note suggests that guidance should be drawn from the Supreme Court’s death penalty jurisprudence regarding the execution of intellectually disabled offenders. Atkins v. Virginia paved the way for the juvenile sentencing cases as the Supreme Court for the first time found that, under the Eighth Amendment, a selected class of offenders—the intellectually disabled — were not eligible for the state’s harshest penalty—the death penalty— because of their diminished culpability. Atkins similarly left the state courts to figure out how to decide whether an individual offender met this amorphous standard, “intellectually disabled.” As state courts grappled with this standard and …


National Security, Immigration And The Muslim Bans, Shoba Sivaprasad Wadhia Nov 2018

National Security, Immigration And The Muslim Bans, Shoba Sivaprasad Wadhia

Washington and Lee Law Review

No abstract provided.


Masthead And Front Matter Nov 2018

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Table Of Contents Nov 2018

Table Of Contents

Washington and Lee Law Review

No abstract provided.


287(G) Agreements In The Trump Era, Huyen Pham Nov 2018

287(G) Agreements In The Trump Era, Huyen Pham

Washington and Lee Law Review

No abstract provided.


Expedited Removal And Due Process: “A Testing Crucible Of Basic Principle” In The Time Of Trump, Daniel Kanstroom Nov 2018

Expedited Removal And Due Process: “A Testing Crucible Of Basic Principle” In The Time Of Trump, Daniel Kanstroom

Washington and Lee Law Review

No abstract provided.


Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen Nov 2018

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Washington and Lee Law Review

My intended focus is on the widespread response—in cities, churches, campuses, and corporations that together comprise “sanctuary networks”1—to the Trump Administration’s Executive Order 13768 Enhancing Public Safety in the Interior of the United States2 as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.


Immigrant Defense Funds For Utopians, César Cuauhtémoc García Hernández Nov 2018

Immigrant Defense Funds For Utopians, César Cuauhtémoc García Hernández

Washington and Lee Law Review

No abstract provided.


Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade Nov 2018

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Washington and Lee Law Review

No abstract provided.


Deconstructing “Sanctuary Cities”: The Legality Of Federal Grant Conditions That Require State And Local Cooperation On Immigration Enforcement, Peter Margulies Nov 2018

Deconstructing “Sanctuary Cities”: The Legality Of Federal Grant Conditions That Require State And Local Cooperation On Immigration Enforcement, Peter Margulies

Washington and Lee Law Review

No abstract provided.


The Authoritarianization Of U.S. Counterterrorism, Sahar F. Aziz Nov 2018

The Authoritarianization Of U.S. Counterterrorism, Sahar F. Aziz

Washington and Lee Law Review

No abstract provided.


Patently Absurd: Critiquing The Uspto’S Disparate Treatment Of Tribal And State Immunity In Inter Partes Review, Maya Ginga Nov 2018

Patently Absurd: Critiquing The Uspto’S Disparate Treatment Of Tribal And State Immunity In Inter Partes Review, Maya Ginga

Washington and Lee Law Review

No abstract provided.


In Defense Of Hearth And [Foster] Home: Determining The Constitutionality Of State Regulation Of Firearm Storage In Foster Homes, Joseph G. Duchane Nov 2018

In Defense Of Hearth And [Foster] Home: Determining The Constitutionality Of State Regulation Of Firearm Storage In Foster Homes, Joseph G. Duchane

Washington and Lee Law Review

No abstract provided.


Administrative Chaos: Responding To Child Refugees—U.S. Immigration Process In Crisis, Lenni B. Benson Nov 2018

Administrative Chaos: Responding To Child Refugees—U.S. Immigration Process In Crisis, Lenni B. Benson

Washington and Lee Law Review

No abstract provided.


A Tribute To Professor Mark H. Grunewald, Samuel W. Calhoun, Robert T. Danforth, Sidney S. Evans, Edward O. Henneman, Andrew W. Mcthenia, Brian C. Murchison, Joan M. Shaughnessy, Barry Sullivan, John W. Vardaman, Mark A. Williams May 2018

A Tribute To Professor Mark H. Grunewald, Samuel W. Calhoun, Robert T. Danforth, Sidney S. Evans, Edward O. Henneman, Andrew W. Mcthenia, Brian C. Murchison, Joan M. Shaughnessy, Barry Sullivan, John W. Vardaman, Mark A. Williams

Washington and Lee Law Review

No abstract provided.


Masthead And Front Matter Apr 2018

Masthead And Front Matter

Washington and Lee Law Review

No abstract provided.


Table Of Contents Apr 2018

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher Apr 2018

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Washington and Lee Law Review

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood of …


The Gatekeepers Of Crowdfunding, Andrew A. Schwartz Apr 2018

The Gatekeepers Of Crowdfunding, Andrew A. Schwartz

Washington and Lee Law Review

Securities crowdfunding is premised on two core policy goals: inclusivity and efficiency. First, crowdfunding is conceived as an inclusive system where all entrepreneurs are given a chance to pitch their idea to the “crowd.” Second, crowdfunding is supposed to be an efficient way to channel funds from public investors to promising startup companies. There is a fundamental tension between these two policy goals, however. A totally inclusive system would ensure that platforms list any and every company that wants to participate. But platforms need to curate and select the companies they list in order to establish a reputation as a …


Cash For Your Conscience: Do Whistleblower Incentives Improve Enforcement Of The Foreign Corrupt Practices Act?, Amy Deen Westbrook Apr 2018

Cash For Your Conscience: Do Whistleblower Incentives Improve Enforcement Of The Foreign Corrupt Practices Act?, Amy Deen Westbrook

Washington and Lee Law Review

No abstract provided.


The Diminishing Duty Of Loyalty, Julian Velasco Apr 2018

The Diminishing Duty Of Loyalty, Julian Velasco

Washington and Lee Law Review

Fiduciary duties comprise an integral part of corporate law. It is generally understood that directors owe the corporation and its shareholders two fiduciary duties: the duty of care and the duty of loyalty. Although both duties are firmly established in corporate law, they are not treated equally. It is generally understood that the duty of loyalty is enforced far more rigorously than the duty of care. The justification for this dichotomy is twofold. First, differential treatment is appropriate because of the relative urgencies of the underlying subject matter: loyalty issues pose greater risks than do care issues. Second, the deference …


In Or Out: How To Treat Foreign Taxes Under The Economic Substance Doctrine, Roland Hartung Apr 2018

In Or Out: How To Treat Foreign Taxes Under The Economic Substance Doctrine, Roland Hartung

Washington and Lee Law Review

No abstract provided.


Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe Apr 2018

Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe

Washington and Lee Law Review

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. …


The Leidos Mixup And The Misunderstood Duty To Disclose In Securities Law, Matthew C. Turk, Karen E. Woody Apr 2018

The Leidos Mixup And The Misunderstood Duty To Disclose In Securities Law, Matthew C. Turk, Karen E. Woody

Washington and Lee Law Review

This Article concerns the recent Supreme Court case, Leidos,Inc. v. Indiana Public Retirement System (Leidos), and examines the broader issues that it raised for securities law. The consensus among scholars and practitioners is that Leidos presented a direct conflict among the circuit courts over a core question of securities law—when a failure to comply with the SEC’s disclosure requirements can constitute fraud under Rule 10b-5. This Article provides a much different interpretation of the case. It begins by demonstrating that the circuit split which is presumed to have brought Leidos to the Supreme Court does not in fact exist. …


A Legal Frankenstein’S Monster: The Complete Bar Order In Securities Fraud Class Action Lawsuits, Jonathan C. Stanley Apr 2018

A Legal Frankenstein’S Monster: The Complete Bar Order In Securities Fraud Class Action Lawsuits, Jonathan C. Stanley

Washington and Lee Law Review

No abstract provided.


The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley Jan 2018

The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley

Washington and Lee Law Review

No abstract provided.


Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd–Frank, Shaun M. Bennett Jan 2018

Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd–Frank, Shaun M. Bennett

Washington and Lee Law Review

This Note addresses a circuit court split arising from a portion of the anti-retaliation provisions in the Dodd–Frank Wall Street Reform and Consumer Protection Act. Subsection 21F’s retaliation prohibitions apply to those employers whose employees make required or protected disclosures under the Sarbanes–Oxley Act of 2002 (SOX) or any other rule or regulation under the SEC’s jurisdiction. SOX provides anti -retaliation protections — similar to those available under Dodd–Frank — for employees of publicly traded companies who report misconduct. However, SOX expressly affords protections to those who provide information to “a Federal regulatory or law enforcement agency; any Member of …


Table Of Contents Jan 2018

Table Of Contents

Washington and Lee Law Review

No abstract provided.


Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs Jan 2018

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Washington and Lee Law Review

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …