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Washington and Lee Law Review - Volume 74:1


by Doug Rendleman

Searching for the most suitable money remedy for a simple commercial bribe promptly lands a lawyer, judge, professor, student, or researcher in a remedial smorgasbord. De- emphasizing injunctions, commercial bribery offers a spectrum of monetary remedies.

The plaintiff has two defendants, the briber and the bribee. He has two major remedies, damages and restitution. The overlapping policies consist of compensating the plaintiff, preventing the defendants’ unjust enrichment, deterring the defendants and others, and punishing the defendants. Courts implement these policies with compensatory damages, restitution, and punitive damages. A bribe can be returned as damages or restitution, a significant distinction. Punishment points the court’s remedial compass at punitive damages. The law distinguishes between legal restitution and equitable restitution. Equitable restitution distinguishes between constructive trust and accounting-disgorgement; if a defendant has other creditors, the distinction takes center stage. Recovery from the briber adds the possibility of duplication. The possibilities of confusion and excess lurk in the wings.

Bribery is a private law-public law hybrid; commercial bribery is on the private law side. Commercial bribery plays a role in three recent Restatements; Employment, Restitution, and Agency. Courts in the United States cite persuasive authority from other common-law jurisdictions to fill gaps in local positive law. Domestic courts may learn from others about alternative solutions to shared problems. Some differences, for example, in jury trial, statutes, punitive damages and equitable restitution, frustrate complete unification.

Stating the courts’ choice and measurement alternatives proves to be a daunting task. In addition, this Article is generous with advice about the routes lawyers and courts should take. This Article adduces legal theory in an effort to clarify the better choices. Plaintiffs’ lawyers have a wide range of possibilities. The courts’ demanding duty is to align policies, remedies rules, and solutions. The results turn out to be challenging at best, often problematic. The risk of inaccuracy and over-correction is pervasive. The search has not found a substitute for human judgment. Principles of confinement, understanding of alternatives, and careful contextual analysis will improve courts’ decision making.


by Adam J. Hirsch

This Article explores the panoply of state-of-mind rules in inheritance law. In areas of law concerned with wrongdoing, consideration of mental states achieves specific deterrence and moral justice. By comparison, in the inheritance realm, I argue that consideration of mental states can serve to economize on decision costs. The Article looks at state-of-mind rules through this prism and also analyzes the public policy of these rules from the perspective of modern research into psychology. Finally, the Article examines state-of-mind rules comparatively, identifying inconsistencies between them that require justification. The Article closes by observing potential expansions of the model and applications in other areas of law.


by Cynthia Godsoe

When two minors below the age of consent have sex, who is the victim and who is the offender? Statutory rape law makes consensual sex among minors illegal in almost every state. Where half of high school students have had intercourse, the law’s immense scope and inevitable underenforcement allow prosecutors to virtually define the crime by the tiny percentage of cases they choose. Through the lens of peer statutory rape, this Article introduces and critiques “vaguenets”—broad, under-defined laws that punish widespread and largely harmless conduct, and invite selective enforcement. Like problematic police dragnet searches, the immense sweep of these statutes ensnares much innocent conduct in an effort to root out societal undesirables. For sexually active adolescents, this means disproportionately those breaching heterocentric or racialized gender norms.

This Article brings juveniles into an overcriminalization conversation that has largely ignored them. It also takes a fresh look at a potential tool to curb the punitive state—the constitutional vagueness doctrine. While several scholars recognized vagueness’ historic use as cover for judicial consideration of equality and liberty concerns in the vagrancy cases, contemporary overcriminalization scholars have forgotten this potential. This Article charts the doctrine’s past use to halt excessive moralizing via the criminal law and its revitalization by recent Supreme Court cases, and argues that vagueness, in letter or spirit, can serve as a blueprint for much needed criminal justice reform. It concludes with one such reform, recommending the decriminalization of all consensual peer sex under the age of sixteen.


by Stacy-Ann Elvy

The Internet of Things (IOT) has been described by the American Bar Association as one of the fastest emerging, potentially most transformative and disruptive technological developments in recent years. The security risks posed by the IOT are immense and Article 2 of the UCC should play a central role in determinations regarding liability for vulnerable IOT products. However, the lack of explicit clarity in the UCC on how to evaluate Article 2’s applicability to hybrid transactions that involve the provision of goods, services, and software has led to conflicting case law on this issue, which contradicts the UCC’s stated goals of uniformity and simplicity. The Article contends that the existing approaches used to evaluate whether Article 2 applies to a hybrid transaction are inadequate for assessing IOT contracts and that IOT technology will increase the complexity and frequency of existing hybrid transactions. Ultimately, the Article proposes and evaluates four solutions for determining whether Article 2 should apply to IOT transactions to provide uniformity, simplicity, and clarity in this area. The Article argues that a functionality approach is preferable as it effectively considers the unique manner in which services and software are provided in connection with the sale of IOT devices. Under the functionality test, hybrid transactions involving goods, software, and services are subject to Article 2 where the services and software advertised by the manufacturer and retailer are integral to the device’s operations.


by Patricia Sánchez Abril and Nicholas Greene

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly binding them to morality clauses that allow for abrupt separations.

However, morality clauses have largely escaped judicial and academic scrutiny. Perhaps due to the hefty bargaining power of their traditionally famous parties, most courts have generally found these clauses enforceable with fleeting analysis. Outside of the sports and entertainment industries, academic literature on the morality clause is scant.

We ignore morality clauses at our peril. Like non-compete clauses, which suffer from well-documented overuse and overbreadth, morality clauses can be socially harmful. Their unrestricted use allows and invites unpredictability, bad faith, and broad limitations on expression, privacy, and other liberties.

This is especially true when imposed on low-profile agents with little bargaining power.

Unlike the well-trodden area of non-competes, there is no uniform rubric for assessing whether and to what extent morality clauses are enforceable, fairly imposed, and lawfully interpreted. This Article addresses this gap, offering to courts and jurists alike a five-factor test by which to determine the validity of morality clauses in a world where reputation pervades and the line between home and office is blurred.