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Washington and Lee Law Review

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Articles 601 - 630 of 3361

Full-Text Articles in Law

Lamentations, Celebrations, And Innovations: Gideon At 50, John D. King Mar 2013

Lamentations, Celebrations, And Innovations: Gideon At 50, John D. King

Washington and Lee Law Review

No abstract provided.


Validating The Right To Counsel, Brandon L. Garrett Mar 2013

Validating The Right To Counsel, Brandon L. Garrett

Washington and Lee Law Review

No abstract provided.


Gideon Was A Prisoner: On Criminal Defense In A Time Of Mass Incarceration, Abbe Smith Mar 2013

Gideon Was A Prisoner: On Criminal Defense In A Time Of Mass Incarceration, Abbe Smith

Washington and Lee Law Review

No abstract provided.


Information Privacy And Data Control In Cloud Computing: Consumers, Privacy Preferences, And Market Efficiency, Jay P. Kesan, Carol M. Hayes, Masooda N. Bashir Jan 2013

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 …


Is Hedge Fund Adviser Registration Necessary To Accomplish The Goals Of The Dodd–Frank Act’S Title Iv?, Luther R. Ashworth Ii Jan 2013

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 Jan 2013

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 Jan 2013

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 Jan 2013

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 Jan 2013

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 Jan 2013

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 Jan 2013

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 Jan 2013

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

Washington and Lee Law Review

No abstract provided.


Why Register Hedge Fund Advisers—A Comment, Lyman P.Q. Johnson Jan 2013

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

Washington and Lee Law Review

No abstract provided.


Vertical Boilerplate, James Gibson Jan 2013

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 Jan 2013

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

Washington and Lee Law Review

No abstract provided.


Coercion, Consent, Compassion, John D. King Jan 2013

Coercion, Consent, Compassion, John D. King

Washington and Lee Law Review

No abstract provided.


From Plyler V. Doe To Trayvon Martin: Toward Closing The Open Society, Lyle Dennison Sep 2012

From Plyler V. Doe To Trayvon Martin: Toward Closing The Open Society, Lyle Dennison

Washington and Lee Law Review

Lyle Denniston, the longest serving and most experienced journalist covering the United States Supreme Court, takes his theme of an inclusive and open society from the constitutional and cultural vision of the late Justice Lewis F. Powell, Jr. and then offers a detailed argument that America is forfeiting—or at least compromising—that vision in favor of a safer, more secure and more cramped society, at home and abroad. The Article, taken from a memorial lecture in Justice Powell’s honor at Washington and Lee University in April 2012, draws upon a variety of very different societal and legal developments that are found …


Contingent Capital In Executive Compensation, Wulf A. Kaal Sep 2012

Contingent Capital In Executive Compensation, Wulf A. Kaal

Washington and Lee Law Review

Contingent capital has great potential to improve corporate governance in Systemically Important Financial Institutions (SIFIs). Early initiatives by European SIFIs to include contingent convertible bonds in executive compensation packages lack governance-improving designs. This Article suggests the use of contingent convertible bonds with an early conversion trigger in executive compensation. The proposal adds an important element to the literature on inside debt and the creditor-centered approach to executive compensation. Contingent convertible bonds with early triggers could be preferable to other debt instruments because, in addition to lowering income inequality and increasing sustainability, the early trigger design can improve incentives for executives …


Illuminating Innovation: From Patent Racing To Patent War, Lea Shaver Sep 2012

Illuminating Innovation: From Patent Racing To Patent War, Lea Shaver

Washington and Lee Law Review

Patent law assumes that stronger protection promotes innovation, yet empirical evidence to test this “innovation hypothesis” is lacking. This Article argues that historical case studies hold unique promise to provide an empirical foundation for modern patent policy. Specifically, this Article uses the history of patents surrounding the light bulb to examine a recently articulated theory of “patent racing” as a justification for patent protection. Thomas Edison’s experience confirms that Mark Lemley’s racing model has substantial descriptive merit. Yet this case study also reveals the limits of the patent racing model. Looking past the initial finish line of patent filings to …


The Power Of A Suggestion: The Use Of Forum Selection Clauses By Delaware Corporations, Thomas T. Mcclendon Sep 2012

The Power Of A Suggestion: The Use Of Forum Selection Clauses By Delaware Corporations, Thomas T. Mcclendon

Washington and Lee Law Review

No abstract provided.


Limiting The Legislative Privilege: Analyzing The Scope Of The Speech Or Debate Clause, Kelly M. Mcguire Sep 2012

Limiting The Legislative Privilege: Analyzing The Scope Of The Speech Or Debate Clause, Kelly M. Mcguire

Washington and Lee Law Review

No abstract provided.


The Real Error In Citizens United, Joanna M. Meyer Sep 2012

The Real Error In Citizens United, Joanna M. Meyer

Washington and Lee Law Review

No abstract provided.


The Physical Consequences Of Emotional Distress: The Need For A New Test To Determine What Amounts Are Excluded From Gross Income Under § 104(A)(2), C. Anthony Wolfe Iv Sep 2012

The Physical Consequences Of Emotional Distress: The Need For A New Test To Determine What Amounts Are Excluded From Gross Income Under § 104(A)(2), C. Anthony Wolfe Iv

Washington and Lee Law Review

No abstract provided.


The Law School Critique In Historical Perspective, A. Benjamin Spencer Sep 2012

The Law School Critique In Historical Perspective, A. Benjamin Spencer

Washington and Lee Law Review

Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the …


A Case Against The Entire Market Value Rule, Anthony D. Raucci Sep 2012

A Case Against The Entire Market Value Rule, Anthony D. Raucci

Washington and Lee Law Review

No abstract provided.


“Waiving” Goodbye To Arbitration: A Contractual Approach, Paul Bennett Iv Jun 2012

“Waiving” Goodbye To Arbitration: A Contractual Approach, Paul Bennett Iv

Washington and Lee Law Review

No abstract provided.


Justice In The Shadowlands: Pretrial Detention, Punishment, & The Sixth Amendment, Laura I. Appleman Jun 2012

Justice In The Shadowlands: Pretrial Detention, Punishment, & The Sixth Amendment, Laura I. Appleman

Washington and Lee Law Review

In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, lies the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law. This Article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those of convicted offenders in prisons. Due …


Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K. A. Greenawalt Jun 2012

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K. A. Greenawalt

Washington and Lee Law Review

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings. First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …


The Card Act On Campus, Jim Hawkins Jun 2012

The Card Act On Campus, Jim Hawkins

Washington and Lee Law Review

In February 2010, the Credit Card Accountability, Responsibility, and Disclosure (CARD) Act intervened in student credit card markets in a dramatic way, attempting to prevent student over-indebtedness, to end aggressive marketing to college students, and to reveal and change avaricious agreements between credit card issuers and colleges. Yet, two years after it became effective, we still have little measurement of whether the Act has accomplished these goals. This Article offers the first empirical assessment of the rationales for the CARD Act and the Act’s effects. Over the two years since the CARD Act went into effect, I conducted surveys of …


Congress, The Constitution, And Supreme Court Recusal, Louis J. Virelli Iii Jun 2012

Congress, The Constitution, And Supreme Court Recusal, Louis J. Virelli Iii

Washington and Lee Law Review

Recusal is one of the most hotly contested issues facing the Supreme Court. From the wide-ranging debate over Supreme Court recusal, however, a singular theme has emerged: Congress must do more to protect the integrity and legitimacy of the Court by regulating the Justices’ recusal practices. Herein lies the problem. Rather than solve the puzzle of Supreme Court recusal, direct congressional regulation has created an impasse between Congress and the Court that has consequences for the reputation, efficacy, and legitimacy of both Branches. In a precursor to this Article, I recast the issue of Supreme Court recusal as a constitutional …