WASHINGTON AND LEE LAW REVIEW

Volume 77, Issue 2

ARTICLES

eBay, Permanent Injunctions, and Trade Secrets

Elizabeth A. Rowe

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 […]

 

To Protect Freedom of Expression, Why Not Steal Victory from the Jaws of Defeat?

Evelyn Mary Aswad

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law.

 

Taxation of Electronic Gaming

Bryan T. Camp

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 […]

 

Extraterritorial Rights in Border Enforcement

Fatma E. Marouf

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 […]

 

Inadequate Protection: Examining the Due Process Rights of Individuals in Child Abuse and Neglect Registries

Amanda S. Sen, Stephanie K. Glaberson, and Aubrey Rose

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 […]

 

NOTES

Not Commodities: Proposing a More Protective Interpretation of the Child Sex Trafficking Statute for Victims and Defendants

Kimberly Blasey

This Note addresses how courts should interpret the “reasonable opportunity to observe” standard when assessing evidence.

 

Limited Privacy in “Pings:” Why Law Enforcement’s Use of Cell-Site Simulators Does Not Categorically Violate the Fourth Amendment

Lara M. McMahon

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.

WASHINGTON AND LEE LAW REVIEW

Volume 77, Issue 1

ARTICLES

(Almost) No Bad Drugs: Near-Total Products Liability Immunity for Pharmaceuticals Explained

Anita Bernstein

This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom.

 

Personal Jurisdiction and National Sovereignty

Ray Worthy Campbell

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance.

 

The Dilemma of Interstatutory Interpretation

Anuj C. Desai

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another.

 

Secret Conviction Programs

Meghan J. Ryan

Judges and juries across the country are convicting criminal defendants based on secret evidence.

 

Supreme Court Journalism: From Law to Spectacle?

Barry Sullivan & Cristina Carmody Tilley

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws.

 

NOTES

Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit

Ryan E. Johnson

This Note analyzes two intra-Second Circuit splits that make it nearly impossible for prisoners to recover against supervisors under § 1983.

 

Reinvesting in RICO with Cryptocurrencies: Using Cryptocurrency Networks to Prove RICO’s Enterprise Requirement

Andrew Robert Klimek

This Note argues that the Racketeer Influenced and Corrupt Organizations Act (RICO) may be suited to cryptocurrency prosecutions.

WASHINGTON AND LEE LAW REVIEW

Volume 76, Issue 4

ARTICLES

Wither Zauderer, Blossom Heightened Scrutiny? How the Supreme Court’s 2018 Rulings in Becerra and Janus Exacerbate Problems with Compelled-Speech Jurisprudence

Clay Calvert

This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine.

Reasonable Doubt and Relativity

Michael D. Cicchini

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.

Demystifying Patent Holdup

Thomas F. Cotter, Erik Hovenkamp, and Norman Siebrasse

Patent holdup can arise when circumstances enable a patent owner to extract a larger royalty ex post than it could have obtained in an arms length transaction ex ante.

(Un)Conscious Judging

Elizabeth Thornburg

Fact inferences made by the trial judge are the lynchpin of civil litigation.

Disguised Patent Policymaking

Saurabh Vishnubhakat

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways.

NOTES

Collateral Consequences of Pretrial Diversion Programs Under the Heck Doctrine

Bonnie Gill

Circuit courts disagree on whether participation in a pretrial diversion program counts as a favorable termination of the conviction or sentence such that a § 1983 action challenging the conviction can proceed.

Flip It and Reverse It: Examining Reverse Gender Discrimination Claims Brought Under Title IX

Courtney Joy McMullan

This Note examines if, and to what degree, courts should consider the pressure put on universities to address sexual misconduct on campus as support for an accused student’s Title IX claim of gender discrimination during university disciplinary proceedings.

WASHINGTON AND LEE LAW REVIEW

Volume 76, Issue 3

Articles

Social Activism Through Shareholder Activism

Lisa M. Fairfax

In 1952, the SEC altered the shareholder proposal rule to exclude proposals made “primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes.”

Civil Rights and Shareholder Activism: SEC v. Medical Committee for Human Rights

Sarah C. Haan

What does “corporate democracy” mean? How far does federal law go to guarantee public company investors a say in a firm’s policies on important social, environmental, or political issues?

From Public Policy to Materiality: Non-Financial Reporting, Shareholder Engagement, and Rule 14a-8’s Ordinary Business Exception

Virginia Harper Ho

In 2017, shareholder proposals urging corporate boards to report on their climate-related risk made headlines when they earned majority support from investors at ExxonMobil, Occidental Petroleum, and PPL.

Chancery’s Greatest Decision: Historical Insights on Civil Rights and the Future of Shareholder Activism

Omari Scott Simmons

Shareholder activism—using an equity stake in a corporation to influence management—has become a popular tool to effectuate social change in the twenty-first century.

Notes

Left with No Name: How Government Action in Intra-Church Trademark Disputes Violates the Free Exercise Clause of the First Amendment

Mary Kate Nicholson

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment.

Reaching Through the “Ghost Doxer:” An Argument for Imposing Secondary Liability on Online Intermediaries

Natalia Homchick

Imagine you have decided to run for office, to speak out publicly against an injustice, to enter the job market, or even to join a new online forum. Now, imagine after starting your chosen endeavor, you go online to discover that someone who disagrees with your position posted your personal information on the internet.

WASHINGTON AND LEE LAW REVIEW

Volume 76, Issue 2

ARTICLES

The Future of Physicians’ First Amendment Freedom: Professional Speech in an Era of Radically Expanded Prenatal Genetic Testing

Wynter K. Miller & Benjamin E. Berkman

Under the First Amendment, state intervention in conversations between physicians and prospective parents about prenatal whole genome sequencing (PWGS) should trigger at least heightened scrutiny.

Categorical Confusion in Personal Jurisdiction Law

Todd David Peterson

This Article posits that two significant problems in the Supreme Court’s personal jurisdiction case law have led to incoherent and irreconcilable results in cases involving individual and corporate defendants.

A Commercial Law for Software Contracting

Michael L. Rustad & Elif Kavusturan

Software licensing and software-as-a-service contracts are innovative in their streamlining of products, as well as in their contracting practices, done in both a legislative and common law void. The dearth of case law and the legislative void leaves both software providers and customers with no guidance on contract law issues on software licensing and cloud computing.

Adopting Civil Damages: Wrongful Family Separation in Adoption

Malinda L. Seymore

The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. This Article explores possible tort causes of action available to birth parents, including a proposed new tort of wrongful family separation, with the long-term objective of changing adoption agency behavior, potentially transforming adoption practice.

Masterpiece of Misdirection?

Mark Strasser

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the United States Supreme Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple. The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry. Yet, the opinion, along with the accompanying concurrences and dissent, may well destabilize various settled areas of constitutional law and, in any event, likely represents shots across the bow with respect to a number of issues that will make their way before the Court.

NOTES

This Land is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability Under CERCLA

Kiersten E. Holms

This Note argues that the recent court decisions rejecting the government’s bare legal title defense are consistent with CERCLA. Courts should not treat the federal government any differently than a private entity and, therefore, courts should hold the federal government liable as an owner under CERCLA for its role as legal titleholder to public lands.

Text Messages Are Property: Why You Don’t Own Your Text Messages, but It’d Be a Lot Cooler if You Did

Spence Howden

Courts do not treat text messages as intangible personal property. Authors and recipients of text messages have limited recourse against cell phone manufacturers or service providers when they “accidentally” delete their users’ text messages.