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2016

Washington and Lee University School of Law

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Articles 1 - 30 of 129

Full-Text Articles in Law

Prosecutorial Misconduct: The Best Defense Is A Good Defense, Fredrick E. Vars Dec 2016

Prosecutorial Misconduct: The Best Defense Is A Good Defense, Fredrick E. Vars

Washington and Lee Law Review Online

No abstract provided.


Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich Dec 2016

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Washington and Lee Law Review Online

No abstract provided.


Confirm Judge Koh For The Ninth Circuit, Carl Tobias Dec 2016

Confirm Judge Koh For The Ninth Circuit, Carl Tobias

Washington and Lee Law Review Online

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals ...


Beyond Polemics: Poverty, Taxes, And Noncompliance, Michelle Lyon Drumbl Nov 2016

Beyond Polemics: Poverty, Taxes, And Noncompliance, Michelle Lyon Drumbl

Scholarly Articles

The earned income tax credit (EITC) is perhaps the most significant refundable credit in the U.S. tax system. Designed as an anti-poverty program, it is a social benefit administered by the Internal Revenue Service (IRS). Studies show it has a positive impact upon the children whose families receive it. Despite its many positives, however, the EITC is a program that for years has been plagued by taxpayer noncompliance. Though it is believed that the majority of EITC noncompliance may be unintentional, public reports of misconduct and fraud hurt the program’s image and fuel political rhetoric.

This article unpacks ...


Shareholder Proposal Settlements And The Private Ordering Of Public Elections, Sarah C. Haan Nov 2016

Shareholder Proposal Settlements And The Private Ordering Of Public Elections, Sarah C. Haan

Scholarly Articles

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts.

The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately ...


A Few Words Of Caution As The Supreme Court Considers Fry V. Napoleon Community Schools, Kevin Golembiewski Oct 2016

A Few Words Of Caution As The Supreme Court Considers Fry V. Napoleon Community Schools, Kevin Golembiewski

Washington and Lee Law Review Online

This term, the Supreme Court will consider Fry v. Napoleon Community Schools. Fry implicates a circuit split on the proper scope of the exhaustion requirement in 20 U.S.C. § 1415(l) of the Individuals with Disabilities Education Act (IDEA). That section requires parents of students with disabilities to exhaust state administrative remedies “before the filing of a civil action . . . seeking relief that is also available under” the IDEA. Two different approaches to this requirement have emerged among the courts of appeals: an “injury-centered” approach and a “relief-centered” approach. Under the injury-centered approach, exhaustion is required when a child’s ...


Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie Oct 2016

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Scholarly Articles

None available.


Washington And Lee Legal Scholarship, 2nd Edition, The Law Library At Washington And Lee University School Of Law Sep 2016

Washington And Lee Legal Scholarship, 2nd Edition, The Law Library At Washington And Lee University School Of Law

Washington and Lee Legal Scholarship (WaLLS) Newsletter

No abstract provided.


Virginia Prosecutors’ Response To Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Michael R. Doucette Sep 2016

Virginia Prosecutors’ Response To Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Michael R. Doucette

Washington and Lee Law Review Online

No abstract provided.


Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins Sep 2016

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Washington and Lee Law Review Online

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors ...


Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr. Sep 2016

Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr.

Washington and Lee Law Review Online

More than a quarter-century has passed since the Supreme Court decided in Employment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel Levin ...


Racial Profiling In The Era Of Black De-Constitutionalism, Donald F. Tibbs Sep 2016

Racial Profiling In The Era Of Black De-Constitutionalism, Donald F. Tibbs

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


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 ...


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 ...


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 ...


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.


The No-Fly List: The New Redress Procedures, Criminal Treatment, And The Blanket Of “National Security”, Chelsea Creta Sep 2016

The No-Fly List: The New Redress Procedures, Criminal Treatment, And The Blanket Of “National Security”, Chelsea Creta

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


“Lord Forgive Me, But He Tried To Kill Me”*: Proposing Solutions To The United States’ Most Vexing Racial Challenges, André Douglas Pond Cummings Sep 2016

“Lord Forgive Me, But He Tried To Kill Me”*: Proposing Solutions To The United States’ Most Vexing Racial Challenges, André Douglas Pond Cummings

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Can You Hear Me Now? The Reasonableness Of Sending Notice Through Text Messages And Its Potential Impact On Impoverished Communities, Caley Degroote Sep 2016

Can You Hear Me Now? The Reasonableness Of Sending Notice Through Text Messages And Its Potential Impact On Impoverished Communities, Caley Degroote

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Table Of Contents Sep 2016

Table Of Contents

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Defense Support Of Civil Authorities: An Examination Of Trends Impacting Upon Police Militarization, Kevin H. Govern Sep 2016

Defense Support Of Civil Authorities: An Examination Of Trends Impacting Upon Police Militarization, Kevin H. Govern

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Tinker, Taylor, Schoolhouse, Speech: The Impact Of The Internet And Social Media On Public School Administrators’ Authority To Control Student Speech, Olivia Broderick Sep 2016

Tinker, Taylor, Schoolhouse, Speech: The Impact Of The Internet And Social Media On Public School Administrators’ Authority To Control Student Speech, Olivia Broderick

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


When More Is Less—Swat And Procedural Justice, Timothy C. Macdonnell Sep 2016

When More Is Less—Swat And Procedural Justice, Timothy C. Macdonnell

Washington and Lee Journal of Civil Rights and Social Justice

Since the “war on drugs” began in the early 1970s the use of Special Weapons and Tactics units has increased exponentially. These units, originally designed to address unique policing situations like riots or a barricaded gun man, are now deploying approximately 60,000 times a year. Over half of those deployments are for search warrants. Because SWAT units deploy assuming that they are going to a situation with a high likelihood of violence, their tactics reflect that assumption. SWAT means and methods emphasize the decisive use of force to resolve conflicts. These means and methods do not encourage communication between ...


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 ...


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.


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.


United States Courts And Imperialism, David H. Moore Aug 2016

United States Courts And Imperialism, David H. Moore

Washington and Lee Law Review Online

When U.S. Courts adjudicate transnational matters, they risk two forms of judicial imperialism. The first—unilateral imperialism—involves adjudication by a single state at the expense of multilateral forms of resolution or global governance. The second—sovereigntist imperialism—threatens the sovereignty of other states who might wish to resolve the controversy themselves. The risk of imperialism may lead U.S. courts to hesitate to adjudicate transnational claims. In Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism,” Professor Hannah Buxbaum highlights that in addition to facing involuntary adjudication in U.S. courts, foreign states ...


Some Skepticism About Criminal Discovery Empiricism, Miriam H. Baer Aug 2016

Some Skepticism About Criminal Discovery Empiricism, Miriam H. Baer

Washington and Lee Law Review Online

This Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions.

Open-file discovery has quickly become a fertile source of debate among scholars and practitioners. Turner and Redlich have devised a valuable survey to test theoretical claims commonly asserted by open-file discovery’s opponents and supporters. Unsurprisingly, the authors find that disclosure is generally broader in North Carolina (an open-file state) than in Virginia ...


Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman Aug 2016

Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman

Washington and Lee Law Review Online

This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about ...


An Anti-Corruption Bureau’S Inexorable Endeavor: A Study Of Malawi’S Cashgate Scandal, Peter G. Strasser Aug 2016

An Anti-Corruption Bureau’S Inexorable Endeavor: A Study Of Malawi’S Cashgate Scandal, Peter G. Strasser

Washington and Lee Law Review Online

The “Cashgate” scandal has had far-reaching consequences for the southern African nation of Malawi and its people. Western donors suspended budgetary aid—circa $150 million annually—upon learning that civil servants and senior cabinet ministers in former President Joyce Banda’s administration had manipulated the government’s financial management system to embezzle more than $45 million over an eighteen-month period. As a precondition to the resumption of aid, the donors required that the government not only implement financial management reforms but also fully prosecute the perpetrators and recover the stolen assets. The donors’ position solidified when audits of Malawian government ...