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Washington and Lee Law Review - Volume 72:4


by W. Mark C. Weidemaier

Contract theory has long posited that parties can maximize contract value by manipulating the procedural rules that will apply if there is a dispute. Beyond choosing a litigation or arbitration forum, parties can allocate costs and fees, alter pleading standards, adjust evidentiary and discovery rules, and customize nearly every aspect of the adjudication process. In time, this theoretical insight became a matter of faith. The assumption that contracts routinely alter procedural rules spawned debate over the normative implications of allowing parties to dictate procedure. Only recently have a few studies suggested that this debate may lack a firm empirical foundation.

This Article presents a comprehensive picture of dispute resolution practices in commercial contracts, one that corrects for many of the limitations of the existing research and focuses on both binding and non-binding mechanisms. Parties do exercise autonomy in structuring the rules of adjudication, but they do so within a limited domain. Contracts almost always specify the governing law and routinely designate a litigation or arbitration forum, and a substantial minority allocate responsibility for attorney fees. In arbitration, parties go further, frequently allocating costs, imposing expertise requirements, and shaping decision-making dynamics (as by requiring multiple arbitrators). In neither forum, however, do parties expressly modify governing rules of pre-trial, trial, or arbitration procedure. The findings imply that it is premature to debate the normative implications of allowing parties to dictate judicial procedures, for contracts rarely employ the kinds of clauses that have provoked concern. Yet, the findings also call for a more complete account of procedural contracting—one that explains why parties do not more fully exercise their procedural autonomy.


by Gwynne Skinner

The doctrine of limited liability of shareholders often prevents victims harmed by a corporation’s foreign subsidiary’s violation of international human rights norms from obtaining a remedy when that subsidiary operates in a country that has a weak or ineffective judicial system. This is because victims are often unable to obtain a remedy in these countries, and the doctrine almost always prevents victims from seeking a remedy from the parent corporation. Given this problem, in what situations should parent corporations be liable for the tortious activities of their foreign subsidiaries? This Article discusses the circumstances where imposing liability on parent corporations is justified and provides a specific statutory recommendation for such liability. The Article outlines the three primary solutions various authors and practitioners have advocated thus far to address the problem—the enterprise liability approach, the due diligence approach, and the direct parental duty-of-care approach—and addresses the limitations of each of these proposed solutions. The Article then recommends a different, primarily statutory, approach: that Congress or states (or both) should enact legislation disregarding limited liability of parent corporations for claims of customary international human rights violations and serious environmental torts where a parent corporation takes a majority interest or creates a subsidiary as part of unified economic enterprise that operates in a “high-risk host country,” i.e., one that has a weak, ineffective, or corrupt judicial system, and victims cannot obtain an adequate judicial remedy for such harms in the host country. This proposed solution moves away from the current notion that a parent corporation should only be liable where it has some actual control over the subsidiary, toward parent corporate liability where the parent benefits financially from the subsidiary’s actions at the expense of unconsenting, third parties—typically members of the community where the subsidiary operates.


by Margaret Hu

This brief Essay offers a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just a careful inquiry into the legal and constitutional framework that guides the oversight of these programs. A close interrogation also requires a careful inquiry into the big data architecture that guides them. This inquiry includes examining the underlying theories of data science and the rationales of big data-driven policymaking that may drive the expansion of big data cybersurveillance. These technological, theoretical, and policymaking movements are occurring within what has been termed by scholars as the National Surveillance State. Better understanding the manner in which intelligence gathering may be shifting away from small data surveillance methods and toward the adoption of big data cybersurveillance methods—and assessing the efficacy of this shift—can factually ground future debates on how best to constrain comprehensive and ubiquitous surveillance technologies at the dawn of the National Surveillance State.


by Tamar R. Birckhead

Although the Thirteenth Amendment to the Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment of crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended, and workers became further indebted to local planters and merchants. Several decades later in Bailey v. Alabama (1911) and United States v. Reynolds (1914), the Supreme Court invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.

This Article examines the phenomenon of what the Author calls “the new peonage.” It posits that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today. Across the United States, even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already struggling families. Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry. Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When low-income parents face such collateral consequences, the very act of meeting the most basic physical and emotional needs of their children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: Both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment

through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.