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Washington and Lee Law Review - Print Edition

Note

by 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. Following the Introduction, Part II of this Note gives an overview of federal and state pretrial diversion programs. Part III explores the statutory and doctrinal background of 42 U.S.C. § 1983, including its interaction with another civil rights statute, 28 U.S.C. § 2254, the federal habeas statute. Both statutes are essential to understanding the Heck v. Humphrey doctrine’s purpose and application to pretrial diversion participants. Part III also explores the development and interpretation of the Heck doctrine in four Supreme Court cases. Part IV discusses the circuit split as it currently stands. Part V presents three proposals for resolving the split and analyzes how closely the proposals adhere to the original purpose of § 1983 as well as the potential implications of these proposals on policy concerns. This Note concludes by suggesting that the Court revisit the issue presented by the Heck circuit split and clarify that challenges to allegedly unconstitutional investigatory practices should never be barred by Heck.

Article

by Saurabh Vishnubhakat

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot yet claim broad autonomy to make substantive political judgments. Indeed, the agency until now has wielded its power mostly in disguise. The other difference is that the era of broad Patent Office power is still in relative infancy. Recent years have seen important analytical and empirical studies of the agency’s dramatic changes, but its new and controversial practices are not yet entrenched. Meaningful reform is still possible, and it is desirable. Patent Office power has grown so much so quickly in part because the political valence of that power has been obscured by a blinkered focus on technological expertise. Understanding the agency’s pernicious structural choices—such as commingling separately delegated powers in order to evade judicial review and stacking adjudicatory panels to reach desired outcomes—in terms of politicization reveals significant risks of injury upon the agency’s ability to make credible commitments, and also illuminates potential solutions.

Article

by Elizabeth Thornburg

Fact inferences made by the trial judge are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Non-conscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This Article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different inferences from the same record. It will then review the psychological literature to show ways in which judges are affected by unconscious forces. It concludes by suggesting reforms to judicial education, use of decision mechanisms that promote conscious deliberation, and civil procedure rule changes designed to increase information and decrease the impact of individual judges’ inferences.

Article

by 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. While the concept of patent holdup is familiar to scholars and practitioners—particularly in the context of standard-essential patent (SEP) disputes—the economic details are frequently misunderstood. For example, the popular assumption that switching costs (those required to switch from the infringing technology to an alternative) necessarily contribute to holdup is false in general, and will tend to overstate the potential for extracting excessive royalties. On the other hand, some commentaries mistakenly presume that large fixed costs are an essential ingredient of patent holdup, which understates the scope of the problem.

In this Article, we clarify and distinguish the most basic economic factors that contribute to patent holdup. This casts light on various points of confusion arising in many commentaries on the subject. Path dependence—which can act to inflate the value of a technology simply because it was adopted first—is a useful concept for understanding the problem. In particular, patent holdup can be viewed as opportunistic exploitation of path dependence effects serving to inflate the value of a patented technology (relative to the alternatives) after it is adopted. This clarifies that factors contributing to holdup are not static, but rather consist in changes in economic circumstances over time. By breaking down the problem into its most basic parts, our analysis provides a useful blueprint for applying patent holdup theory in complex cases.

Article

by 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.

Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, civil burdens of proof.

To solve this dilemma, courts should explain reasonable doubt on a relative basis, within the context of the civil burdens of proof. A relative, context-based instruction will allow jurors to compare and contrast the different standards, thus giving them the necessary reference points to appreciate how high the state’s burden actually is.

This approach is rooted in a psychological principle called “contrast effects,” and is now supported by empirical evidence as well. In this Article, I present the results of my controlled experiment where mock jurors read the identical case summary of a criminal trial and were then randomly assigned to two groups, each of which received a different reasonable doubt instruction. The group that received the relative, context-based instruction acquitted at a rate 30 percent higher than the group that received a simple, undefined instruction. This result was significant at p < .05. Further, participants that received this relative, context-based instruction required a higher subjective confidence level in the defendant’s guilt before they were willing to convict.

Drawing on this and other behavioral research, this Article presents a comprehensive jury instruction on the presumption of innocence and burden of proof that is designed to fulfill the Constitution’s promise: to ensure that defendants remain free of conviction “except upon proof beyond a reasonable doubt.”

Article

by 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.Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. Office of Disciplinary Counsel. Furthermore, the Article explores how Justice Clarence Thomas’s concurrence in a third 2018 decision—Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—heightens problems with the compelled-speech doctrine. The Article concludes by proposing multiple criteria for the Court to consider when determining the level of scrutiny to use in compelled-speech cases.

Note

by 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. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is real danger of violating the Free Exercise Clause. This Note seeks to answer the question: Does the government’s role in approving and enforcing trademark rights in intra-church disputes violate the Establishment and Free Exercise Clauses of the First Amendment?

Part II of this Note provides an overview of Supreme Court church property jurisprudence and describes the evolution of the neutral principles approach. This Note primarily focuses on property disputes between hierarchical churches, as their governing structure leaves them most vulnerable to Free Exercise implications. Part III outlines how an entity, secular or religious, registers a trademark with the U.S. Patent and Trademark Office (USPTO). The section details infringement actions and provides examples of registered church trademarks. Part IV concerns the constitutional implications of church trademark adjudication, specifically through the lens of the Establishment Clause and the Free Exercise Clause. Part IV.A concludes that the USPTO’s registering of church trademarks does not violate the Establishment Clause. Part IV.B analyzes Free Exercise implications concerning the adjudication of trademark infringement suits. Because of the neutral principles approach and the inherently ecclesiastical nature of church trademarks, Part IV.B concludes that current court action violates the Free Exercise Clause. Part V suggests that courts should uniformly apply the neutral principles approach to real and intellectual property disputes alike. This section theorizes that such an approach would prevent future Free Exercise violations.

Note

by 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 and called for others to harass you. To make matters worse, you realize that you cannot determine who posted your personal data. You have been doxed. Because you cannot identify the person who posted your information, where can you turn for recourse? The next logical party is the website where your personal information was posted. Unfortunately, under current laws online intermediaries are typically immunized from liability in these situations. This Note argues that this lack of legal recourse is no longer acceptable in the internet-dominated modern world.

Despite growing awareness of doxing’s pernicious consequences, existing laws do not adequately address either the underlying behavior or its consequences. Some signs of progress, however, are emerging. Proposed legislation in the U.S. House of Representatives — the Online Safety Modernization Act of 2017 (Online Safety Act) — would provide for federal criminal and civil liability for doxing. This bill is a step forward, but it does not address the lack of legal recourse for a victim if the person posting the information cannot be identified. This Note aims to explain why it is appropriate, and necessary, to hold online intermediaries secondarily liable when the doxer cannot be identified.

Article

by 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. Increasingly, activists are looking beyond financial performance to demand better corporate performance in such areas as economic inequality, civil rights, human rights, discrimination, and diversity. These efforts take many forms: publicity campaigns, litigation, proxy battles, shareholder resolutions, and negotiations with corporate management. However, a consensus on scope is lacking. Should corporations change their own operations to reflect a specific agenda or use their power to influence society on a much broader scale? Distinctions between private and public become blurred in light of the ubiquitous and inevitable influence corporations wield over third parties. Theoretical absolutes on the individualist-communitarian spectrum may underestimate the complex co-dependent and co-responsible interrelationship between corporations and modern society. Critics may fairly question why corporations, arguably society’s most potent institutions, should sit idle on problems like civil rights.

This essay offers a historical account of a seminal civil rights decision, Belton v. Gebhart, in the Delaware Court of Chancery. The circumstances surrounding the Belton case illuminate the limits and potential of shareholder activism to bolster civil rights in the modern context. Examining a historical civil rights example is instructive for thinking about how shareholder activism might advance the modern civil rights agenda.

Part II of this essay examines Belton v. Gebhart in its contemporary context. Part III examines the key differences between past and present civil rights-related shareholder activism. Part IV concludes that Belton v. Gebhart, along with its surrounding circumstances and events, vividly illustrates that advancing civil rights requires a range of tactics that leverage public, private, and philanthropic resources. Shareholder activism works best as part of a multipronged activist strategy, not as a substitute for other types of activism. Recognizing the complex challenges associated with advancing civil rights, this essay raises key questions about the nascent environmental, social, and governance (ESG) framework with which scholars, practitioners, and other observers must contend.

This article builds upon the author’s remarks at the 2018-2019 Lara D. Gass Annual Symposium: Civil Rights and Shareholder Activism at Washington and Lee University School of Law, February 15, 2019.

Article

by 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. The key to this historic vote was the support of Blackrock, State Street, and Vanguard, which broke with management and cast their votes behind the proposals. The 2018 proxy season saw several more climate-related proposals earn majority support, and in 2018 and 2019 record numbers of proposals were withdrawn after the companies agreed to respond to shareholders’ requests.

The highly visible 2017 proposal illustrates a number of key aspects of shareholder activism today. The first is the mainstreaming of shareholder activism from its origins in the civil rights and socially responsible investment movements to a point where the largest institutional investors are integrating “environmental, social, and governance” (ESG) or “non-financial” factors into their voting and investment policies. Second, the proposal shows how the focus of shareholder activism around ESG matters has broadened beyond the civil rights, labor, and human rights issues that were its major target throughout much of the twentieth century. Climate change risk and corporate environmental impacts are now among the top subjects of shareholder proposals today. Third, as explained below, mainstream investors like Blackrock and Vanguard are supporting ESG-oriented activism for economic reasons, not only or even necessarily because of commitments to a particular ethical or political position. And finally, this proposal is one of many ESG proposals (about 20 percent of all environmental and social proposals in 2018) that seek greater corporate transparency about non-financial risks and impacts, either to better inform investor decision-making or to prompt changes in corporate practice.

This Article focuses on the challenge of achieving corporate transparency for investment purposes and considers whether shareholder activism is the best way to achieve it. Many in the business community appear to think so. For example, in 2016, many corporations and law firms offered comments to the Securities and Exchange Commission (SEC) on the question of whether the agency should develop new ESG-related disclosure rules. Nearly all took the position that shareholder engagement and other forms of shareholder activism were the best way to improve ESG disclosure and that the SEC should leave well enough alone.

This article builds upon the author’s remarks at the 2018-2019 Lara D. Gass Annual Symposium: Civil Rights and Shareholder Activism at Washington and Lee University School of Law, February 15, 2019.

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