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Washington and Lee Law Review - Issue 2

Article

eBay, Permanent Injunctions, and Trade Secrets

by 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 in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm even where the loss has been compensated monetarily. Moreover, where injunctions are requested but denied, the lack of irreparable harm seemed to have been the factor most often articulated as the reason for the denial.

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Article

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

by Evelyn Mary Aswad

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation.

Those concerns were linked to a recent scholarly call for updates to the UN’s international legal regime regarding freedom of expression, particularly with respect to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination.

This Article examines the scholarly call’s analysis to assess whether its conclusions are correct, which would make this body of law less useful for platforms to adopt in content moderation. This Article finds that the state of international law on freedom of expression is more protective of speech (and more coherent) than the scholars assessed and proposes ways to achieve their laudable goal of promoting broad protections for freedom of expression in international law. The Article concludes that the existing international legal regime on freedom of expression remains a useful resource for content moderation by global platforms.

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Article

Taxation of Electronic Gaming

by 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 its taxation. This Article argues for a cash-out rule of taxation.

At a deeper level, the subject of this Article is timeless. Tax law is wickedly complex for a reason. This Article explores that complexity using the example of electronic gaming. It grapples with the source of that complexity: an inherent and unresolvable tension between economic theories of income and the practical needs of administering a system of taxation to a large population in a democracy. That tension led some scholars to argue for a standards-based approach to taxation. This Article considers and rejects that argument. Legal rules are necessary to mediate between theory and practice. Hence, this Article demonstrates the continued relevance and importance of doctrinal analysis in legal scholarship.

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Article

Extraterritorial Rights in Border Enforcement

by 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 legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small, but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in at least two circuit splits. Specifically, the Article explores differences in courts’ selection and application of the Supreme Court’s main extraterritoriality tests; various ways of conceptualizing the interaction between the Court’s extraterritoriality jurisprudence and the plenary power doctrine, which one appellate court described as “competing” constitutional fields; and contrasting approaches to the role of separation of powers as a limiting structural principle, given the ambiguity of the Constitution’s text regarding its geographic scope. The separation of powers analysis reflects particular concern about the Executive Branch’s manipulation of the border as a legal construct, as well as its manipulation of national security as an illusory threat, in order to evade accountability. The Article concludes that extending constitutional protections, preserving judicial review, and critically examining demands for deference are crucial in this context in order to avoid creating a law-free zone just beyond our southern border.

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Article

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

by 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 demonstrate that a protected liberty or property interest is at stake. When federal courts have evaluated the individual liberty interest(s) implicated by placement on state child abuse and neglect registries, they have so far only found such an interest when the plaintiff’s employment opportunities were clearly affected. We identify a more principled method by which courts should evaluate challenges to state child abuse and neglect registries. Our proposed method would root the analysis in the core constitutional right of family integrity. We then go on to identify ways in which states could structure their child abuse and neglect registries to better comport with due process requirements.

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Note

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

by Kimberly Blasey

This Note addresses how courts should interpret the “reasonable opportunity to observe” standard when assessing evidence. In other words, what quantum of evidence is, and should be, sufficient to prove a defendant had a “reasonable opportunity to observe” a sex trafficking victim? Would a singular brief encounter with an older-appearing prostitute satisfy the standard? If so, would the mere fact that the “prostitute” was actually a minor be the only evidence needed to obtain a conviction? Or would the defendant’s intention and attempt to order services from an adult prostitute shed light on the reasonableness of his observation opportunity? Moreover, in the age of increasing technology, would trafficking a minor through a webcam videochat satisfy the standard? For instance, would a man in the United States requesting sexual performances from a Filipino child over videochat constitute a “reasonable opportunity to observe” that child even without an in-person, face-to-face interaction? This Note answers these questions.

Part II analyzes three recent cases that employ the “reasonable opportunity to observe” standard: United States v. Robinson, United States v. Copeland, and United States v. Valas. It then determines which factors these cases reveal as sufficient to constitute a “reasonable opportunity to observe.” Part III discusses how the currently utilized factors and interpretation of the standard create two issues: under-criminalization of legitimate forms of sex trafficking and over-criminalization of non-trafficking behavior. Part IV articulates a solution by presenting a revised list of factors that courts should consider when determining whether a defendant had a “reasonable opportunity to observe” a victim.

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Note

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

by 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. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after analyzing these four factors, a court concludes that law enforcement officers conducted a Fourth Amendment search, the court must then ask whether the search was reasonable. Cell-site simulators are generally used in the “enterprise of ferreting out crime.” Thus, if law enforcement’s use of a cell-site simulator amounts to a Fourth Amendment search, that search should be considered unreasonable, and therefore violative of the Fourth Amendment, if it was conducted without a warrant.

The Note also provides background information regarding the development and use of cell-site simulators at the federal, state, and local levels. Part II lays out a general framework for analyzing Fourth Amendment search and seizure cases. Part II.A concludes that law enforcement’s use of a cell-site simulator does not constitute a Fourth Amendment seizure, but Part II.B argues that it may constitute a Fourth Amendment search. Part II.B then delves into Fourth Amendment search case law, chronicling several key Supreme Court decisions that apply both the traditional, physical trespass test and the Katz reasonable expectation of privacy test to various electronic surveillance techniques. Part II.B next analyzes the three cell-site simulator cases referenced earlier in this Part—Maryland v. Andrews, United States v. Lambis, and Jones v. United States—and concludes that the courts in Andrews and Jones (D.C.) came to overly broad conclusions in holding that law enforcement’s use of cell-site simulators categorically violates individuals’ expectations of privacy. Part III proposes four factors courts should consider to determine whether, on a case-by-case basis, law enforcement’s use of a cell-site simulator constitutes a Fourth Amendment search. Part IV addresses the Fourth Amendment’s reasonableness requirement and concludes that the warrant preference model for determining reasonableness is best-suited to cell-site simulators.

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