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Articles 1 - 30 of 31
Full-Text Articles in Law
Prosecutorial Misconduct: The Best Defense Is A Good Defense, Fredrick E. Vars
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
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
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 …
A Few Words Of Caution As The Supreme Court Considers Fry V. Napoleon Community Schools, Kevin Golembiewski
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 …
Virginia Prosecutors’ Response To Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Michael R. Doucette
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
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 pose …
Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr.
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 …
United States Courts And Imperialism, David H. Moore
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 voluntarily sue in U.S. courts as well. The …
Some Skepticism About Criminal Discovery Empiricism, Miriam H. Baer
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. More notable …
Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman
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 the …
An Anti-Corruption Bureau’S Inexorable Endeavor: A Study Of Malawi’S Cashgate Scandal, Peter G. Strasser
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 ledgers from 2009 to …
Federalism And The Disappearing Equal Protection Rights Of Immigrants, Kevin R. Johnson
Federalism And The Disappearing Equal Protection Rights Of Immigrants, Kevin R. Johnson
Washington and Lee Law Review Online
Jenny-Brooke Condon’s article The Preempting of Equal Protection for Immigrants? analyzes important issues surrounding the constitutional rights of immigrants. Professor Condon in essence contends that the current legislative, executive, and scholarly focus on the distribution of immigration power between the state and federal governments has undermined the Equal Protection rights of legal immigrants in the United States. Despite the contentious national debates over immigration reform, immigrants’ rights have generally been of secondary concern in contemporary immigration scholarship, which is now dominated by analysis of immigration federalism.
Professor Condon undoubtedly is correct that we should not lose sight of the rights …
In Defense Of The Harmless Error Rule’S Clear And Convincing Evidence Standard: A Response To Professor Baron, Mark Glover
In Defense Of The Harmless Error Rule’S Clear And Convincing Evidence Standard: A Response To Professor Baron, Mark Glover
Washington and Lee Law Review Online
In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the distribution of property upon death. However, the law’s archetypical testator does not represent the many real testators who are irresolute and irrational, those possessing incoherent and only partially formed thoughts regarding the disposition of their estates.
Based upon the disconnect between the law’s paradigm …
Incomplete Dispositions, Naomi Cahn
Incomplete Dispositions, Naomi Cahn
Washington and Lee Law Review Online
In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also …
How Much Are You Worth?: A Statutory Alternative To The Unconstitutionality Of Experts’ Use Of Minority-Based Statistics, Anne M. Anderson
How Much Are You Worth?: A Statutory Alternative To The Unconstitutionality Of Experts’ Use Of Minority-Based Statistics, Anne M. Anderson
Washington and Lee Law Review Online
No abstract provided.
Sovereign Impunity: Why Double Jeopardy Should Apply In Puerto Rico, Colin Miller
Sovereign Impunity: Why Double Jeopardy Should Apply In Puerto Rico, Colin Miller
Washington and Lee Law Review Online
On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer this question in the affirmative without overturning precedent holding that the U.S. government can unilaterally impose the Federal Death Penalty Act in Puerto Rico. In other words, the Court cannot deprive Puerto Rican citizens of the protection of the Double Jeopardy Clause …
Belmora Llc V. Bayer Consumer Care Ag—The Well-Known Marks Doctrine Reconsidered, Wee Jin Yeo
Belmora Llc V. Bayer Consumer Care Ag—The Well-Known Marks Doctrine Reconsidered, Wee Jin Yeo
Washington and Lee Law Review Online
The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used exclusively overseas, if it has achieved a measure of renown in the United States. However, until now, it remains uncertain whether the doctrine is part of United States federal trademark law, given the split between the Ninth and the Second Circuits on the issue.
On …
Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae C. Quinn
Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae C. Quinn
Washington and Lee Law Review Online
In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead’s …
Evolving The Irb: Building Robust Review For Industry Research, Molly Jackman, Lauri Kanerva
Evolving The Irb: Building Robust Review For Industry Research, Molly Jackman, Lauri Kanerva
Washington and Lee Law Review Online
Increasingly, companies are conducting research so that they can make informed decisions about what products to build and what features to change. These data-driven insights enable companies to make responsible decisions that will improve peoples’ experiences with their products. Importantly, companies must also be responsible in how they conduct research. Existing ethical guidelines for research do not always robustly address the considerations that industry researchers face. For this reason, companies should develop principles and practices around research that are appropriate to the environments in which they operate, taking into account the values set out in law and ethics. This paper …
A Rejoinder To G. Skinner's Rethinking Limited Liability Of Parent Corporations For Foreign Subsidiaries' Violations Of International Human Rights Law, Radu Mares
Washington and Lee Law Review Online
No abstract provided.
Beyond Irbs: Ethical Guidelines For Data Research, Omer Tene, Jules Polonetsky
Beyond Irbs: Ethical Guidelines For Data Research, Omer Tene, Jules Polonetsky
Washington and Lee Law Review Online
No abstract provided.
Clapper Dethroned: Imminent Injury And Standing For Data Breach Lawsuits In Light Of Ashley Madison, Arthur R. Vorbrodt
Clapper Dethroned: Imminent Injury And Standing For Data Breach Lawsuits In Light Of Ashley Madison, Arthur R. Vorbrodt
Washington and Lee Law Review Online
No abstract provided.
Condemning Clothes: The Constitutionality Of Taking Trademarks In The Professional Sports Franchise Context, Mitchell Diles
Condemning Clothes: The Constitutionality Of Taking Trademarks In The Professional Sports Franchise Context, Mitchell Diles
Washington and Lee Law Review Online
The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ vote also potentially implicates the relocation of the San Diego Chargers and the Oakland Raiders. Though applauded by numerous sports commentators, athletes, and fans, the vote reflects the failure of negotiations between the City of St. Louis and the Rams organization. The approval also sets …
The Aia Is Not A Taking: A Response To Dolin & Manta, Camilla A. Hrdy, Ben Picozzi
The Aia Is Not A Taking: A Response To Dolin & Manta, Camilla A. Hrdy, Ben Picozzi
Washington and Lee Law Review Online
No abstract provided.
Elements Of A New Ethical Framework For Big Data Research, Effy Vayena, Urs Gasser, Alexandra Wood, David R. O'Brien, Micah Altman
Elements Of A New Ethical Framework For Big Data Research, Effy Vayena, Urs Gasser, Alexandra Wood, David R. O'Brien, Micah Altman
Washington and Lee Law Review Online
Emerging large-scale data sources hold tremendous potential for new scientific research into human biology, behaviors, and relationships. At the same time, big data research presents privacy and ethical challenges that the current regulatory framework is ill-suited to address. In light of the immense value of large-scale research data, the central question moving forward is not whether such data should be made available for research, but rather how the benefits can be captured in a way that respects fundamental principles of ethics and privacy.
In response, this Essay outlines elements of a new ethical framework for big data research. It argues …
Big Data Sustainability: An Environmental Management Systems Analogy, Dennis D. Hirsch, Jonathan H. King
Big Data Sustainability: An Environmental Management Systems Analogy, Dennis D. Hirsch, Jonathan H. King
Washington and Lee Law Review Online
Today, organizations globally wrestle with how to extract valuable insights from diverse data sets without invading privacy, causing discrimination, harming their brand, or otherwise undermining the sustainability of their big data projects. Leaders in these organizations are thus asking: What management approach should businesses employ sustainably to achieve the tremendous benefits of big data analytics, while minimizing the potential negative externalities?
This Paper argues that leaders can learn from environmental management practices developed to manage the negative externalities of the industrial revolution. First, it shows that, along with its many benefits, big data can create negative externalities that are structurally …
Classification Standards For Health Information: Ethical And Practical Approaches, Craig Konnoth
Classification Standards For Health Information: Ethical And Practical Approaches, Craig Konnoth
Washington and Lee Law Review Online
Secondary health information research requires vast quantities of data in order to make clinical and health delivery breakthroughs. Restrictive policies that limit the use of such information threaten to stymie this research. While the Notice of Proposed Rulemaking (NPRM) for the new Common Rule permits patients to provide broad consent for the use of their information for research, that policy offers insufficient flexibility. This Article suggests a flexible consenting system that allows patients to consent to a range of privacy risks. The details of the system will be fleshed out in future work.
Selected Issues Concerning The Ethical Use Of Big Data Health Analytics, Lieke Jetten, Stephen Sharon
Selected Issues Concerning The Ethical Use Of Big Data Health Analytics, Lieke Jetten, Stephen Sharon
Washington and Lee Law Review Online
No abstract provided.
Sturgeon V. Frost: Alaska’S Wild Lands And Wild Laws Prove The Need For A Mistake-Of-Law Defense, Paul J. Larkin Jr., John-Michael Seibler
Sturgeon V. Frost: Alaska’S Wild Lands And Wild Laws Prove The Need For A Mistake-Of-Law Defense, Paul J. Larkin Jr., John-Michael Seibler
Washington and Lee Law Review Online
No abstract provided.
Electing Justice Roush To The Supreme Court Of Virginia, Carl Tobias
Electing Justice Roush To The Supreme Court Of Virginia, Carl Tobias
Washington and Lee Law Review Online
In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to …