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Washington and Lee Law Review - Volume 73:2


by Hillel Y. Levin, Allan J. Jacobs & Kavita Shah Arora

When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyze such cases, so the law is inconsistent. This Article suggests, first, that the lack of consistency is a troubling artifact of our political system, and, second, that it raises serious constitutional questions that lie at the intersection of the Free Exercise and Establishment Clauses of the First Amendment.

To resolve these problems, we offer and develop a test to determine whether such a religious practice should be accommodated by legislators, courts, and medical practitioners. Our test is sensitive to the institutional strengths and weaknesses of differently situated decision makers and is designed to be flexible enough to account for these differences. Consequently, it has distinctive applications for legislators, administrative officials, judges, and medical practitioners. Further, although the test was developed specifically to address religious practices that may impose health-related harms to children and third-parties, it also has potential implications in other contexts as well, such as the debate over whether sexual orientation non-discrimination laws should accommodate religious dissent.


by Stavros Gadinis & Colby Mangels

In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud. Yet, as long as gatekeepers maintain deniability, they can accommodate dubious client requests. Instead, anti-money-laundering laws require gatekeepers to report to regulators suspicions of misconduct, even without clear proof of fraud. Because suspicions arise early in the gatekeeper–client relationship, conflicts of interest are not likely to be as strong. Moreover, the task of identifying suspicious cases can be more readily outsourced to compliance departments, lessening dependence on front-line employees whose future might be tied to specific clients. Finally, suspicions may arise even in gatekeepers who only have partial access to clients’ transactions and, thus, cannot come to full knowledge of the fraud.

Inspired by the collaborative relationship between gatekeepers and enforcement authorities in anti-money laundering, we develop a theoretical framework that explains why this approach could operate as a general template for financial regulation. We then investigate the implementation of the collaborative model in practice. Starting from anti-money-laundering laws’ history, we present new evidence from recently released archival materials to illustrate that, rather than fighting proposals for expanding their regulatory obligations, private industry embraced them. Turning to the present, we discuss how the collaborative model has reshaped banking oversight in money laundering: It has leveraged the power of big data, encouraged the creation of dedicated compliance departments, and spearheaded one of the biggest inter-agency collaborations in the United States. Finally, we discuss how the collaborative model could work in the future in two other areas of financial activity: broker-dealer regulation and equity issuance.


by Gregory Dolin & Irena D. Manta

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The changes in the boundaries of the patent grant made it significantly more likely that the patent owner would see his patent invalidated. This new state of affairs has already reduced the value of some patents that were obtained before the AIA became effective, and further declines will likely follow. We show on the basis of constitutional takings jurisprudence that the loss of value that some patent owners have suffered as a result of the new procedures—even if their patents have not been specifically subjected to them—potentially compare with physical takings and definitely fall under the umbrella of regulatory takings. The way to remedy these failings is for the government either to change its procedures or provide just compensation to the patent owners that received patents from the PTO before the enactment of the AIA.


by Hannah L. Buxbaum

One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a result, we typically consider the foreign relations implications of domestic adjudication within a paradigm that is oriented toward constraining the engagement of U.S. courts in matters involving foreign sovereign interests. What this approach ignores, however, is that foreign sovereigns are also plaintiffs in U.S. courts. A full account of the interactions between U.S. courts and foreign sovereigns must address cases in which foreign governments actively seek to engage U.S. judicial resources.

This Article sets out the first systematic analysis of claims filed in U.S. domestic courts by foreign sovereigns, drawing on an examination of almost 300 claims. It establishes a basic typology of such claims, and then uses three case studies to explore and challenge the paradigm outlined above. The final section of the article relies on the results of this examination to analyze developments in one particular context: the extraterritorial application of U.S. law. It argues that the narrative of “judicial imperialism” that has come to frame discussion in that area is neither accurate nor useful.