Washington and Lee law review最新文献

{"title":"The Gatekeepers of Crowdfunding","authors":"Andrew A. Schwartz","doi":"10.2139/SSRN.3242435","DOIUrl":"https://doi.org/10.2139/SSRN.3242435","url":null,"abstract":"Securities crowdfunding is premised on two core policy goals, inclusivity and efficiency. First, crowdfunding is conceived as an inclusive system where all entrepreneurs are given a chance to pitch their idea to the “crowd.” Second, crowdfunding is supposed to be an efficient way to channel funds from public investors to promising startup companies. There is a fundamental tension between these two policy goals, however. A totally inclusive system would ensure that platforms list any and every company that wants to participate. But platforms need to curate and select the companies they list in order to establish a reputation as a reliable market for investors. This gatekeeping function aids efficiency, but is exclusive by its nature. Hence, the tension between inclusive and efficient crowdfunding. \u0000This Article provides a theoretical and an empirical analysis of inclusivity versus efficiency in crowdfunding. It also compares the American crowdfunding system with its counterpart in New Zealand using original research collected by the author during a six month residency in that country. This research reveals that crowdfunding in New Zealand is much more financially successful than in the United States. This Article explains this outperformance on the basis that New Zealand’s system is focused solely on efficiency, even at the expense of inclusivity. In the United States, by contrast, we closed our eyes to the tension between efficiency and inclusivity and tried to achieve both at the same time. In practice, and perhaps as could have been expected, this has led to only minor success on both fronts. \u0000Broadening the analysis out, we see that inclusive crowdfunding is a luxury that only certain countries can manage, depending on their existing systems for entrepreneurial finance. The United States has a huge and sophisticated venture capital industry and thus can afford to sacrifice some efficiency in our crowdfunding system in order to advance inclusivity. But New Zealand has long had very little venture capital investment and hence a real need to develop crowdfunding as an effective new means for efficiently channeling capital to the country’s startup companies. The need to consciously trade off inclusivity and efficiency is an important lesson from the present research.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"75 1","pages":"885"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48307862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rehabilitating the Nuisance Injunction to Protect the Environment","authors":"Doug Rendleman","doi":"10.2139/SSRN.3140473","DOIUrl":"https://doi.org/10.2139/SSRN.3140473","url":null,"abstract":"The Trump administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This article advocates more vigorous state environmental tort remedies for nuisance and trespass. \u0000 \u0000An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’s decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue public health and environmental protection and militate against effective private-law remedies for environmental torts. \u0000 \u0000This article advocates flexible and pragmatic common-law techniques instead of doctrinal law-and-economics analysis. Moreover, behavioral economists’ studies have undermined and qualified many law-and-economics theories. In addition to arguing for more and better injunctions, this article criticizes the law-and-economics mindset that nuisance-trespass parties’ post-injunction negotiation will convert an injunction into an excessive money settlement. It also shows that the Cathedral article’s vocabulary and four-rule organization are both too long and too short as well as confusing and misleading. \u0000 \u0000This article maintains that courts’ private-law environmental injunctions should utilize judicial techniques from public-law structural injunctions in what it calls the standards injunction. In addition, courts ought to broaden nuisance and trespass plaintiffs access to punitive damages and restitution. The author hopes that this argument for more and more detailed private-law injunctions and remedies will percolate upward to augment environmental protection leading to more effective private- and public-law remedies against environmental torts and other environmental violations including global warming, and climate change.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"75 1","pages":"1859"},"PeriodicalIF":0.0,"publicationDate":"2018-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48866056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Klein Rule of Decision Puzzle and the Self-Dealing Solution","authors":"E. C. Zoldan","doi":"10.2139/SSRN.2925464","DOIUrl":"https://doi.org/10.2139/SSRN.2925464","url":null,"abstract":"Scholars and courts have struggled to make sense of the Supreme Court’s decision in United States v. Klein, an intriguing but enigmatic opinion concerning the limits of Congress’s ability to interfere with cases pending before the federal courts. Klein is intriguing because its broad and emphatic language suggests significant limits on the power of Congress. Klein is enigmatic because the Court has never again struck down a statute because of Klein or even made clear what principle animates its result. In fact, despite reaffirming the existence of a principle based on Klein, the Court has repeatedly read it narrowly, suggesting that the principle it embodies has not been adequately articulated. This Article argues that Klein’s principle is a specific application of a robust constitutional tradition that restrains governmental self-dealing. A Klein principle restraining governmental self-dealing explains the Court’s Klein cases, situates the principle within constitutional theory and doctrine, and provides much-needed direction to lower courts wrestling with questions about legislative intrusions into judicial functions.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"74 1","pages":"2133"},"PeriodicalIF":0.0,"publicationDate":"2017-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44075297","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patents as Credentials","authors":"Jason A. Rantanen, Sarah Jack","doi":"10.2139/SSRN.3013780","DOIUrl":"https://doi.org/10.2139/SSRN.3013780","url":null,"abstract":"The conventional explanation for why people seek patents draws on a simple economic rationale. Patents, the usual story goes, provide a financial reward: the ability to engage in supracompetitive pricing by excluding others from practicing the claimed technology. People are drawn to file for patents because that is how these economic rewards are secured. While scholars have proposed variations on the basic exclusionary mechanism, and a few have explored alternate reasons why businesses seek patents, the question of whether individuals — human beings — seek patents for reasons other than the conventional economic incentive remains unexplored. As Jessica Silbey recently observed, human creativity is motivated by more than just the potential for immediate economic returns. But an individual’s motivation to create does not explain why that person would go through the trouble and expense of obtaining a patent absent the promise of economic gain. \u0000We offer an explanation for why individuals may seek patents beyond the promise of supracompetitive pricing: patents serve as credentials. Simply put, some human beings want to be recognized by society as inventors. But claiming to be an inventor without evidence is unlikely to persuade the masses — or perhaps even friends. Patents serve as powerful evidence that an individual meets the societal definition of “inventor.” Just as a doctoral degree in history might indicate that one is an intellectual, obtaining a patent shows that the person named on its face is a real-life, government-certified inventor. Regardless of whether a particular patent conveys an economically valuable mechanism of exclusion, the inventorship recognition alone may motivate some individuals to seek patents.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"76 1","pages":"311"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43342516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Whistling Loud and Clear: Applying Chevron to Subsection 21F of Dodd-Frank","authors":"Shaun Bennett","doi":"10.2139/SSRN.3004644","DOIUrl":"https://doi.org/10.2139/SSRN.3004644","url":null,"abstract":"On June 26th, 2017 the Supreme Court granted certiorari in Digital Realty Trust, Inc. v. Somers. This is not a freedom of religion case, nor is it an equal protection problem, nor is it any other high profile issue one would expect to see covered by major media outlets. This case is about securities law. Specifically, it is about whether Dodd-Frank’s anti retaliation protections for whistleblowers extend to those who do not fall within the statutory definition of “whistleblower.” \u0000Dodd–Frank defines a “whistleblower” as a person or persons who report alleged violations of the securities laws to the SEC. A subsection of Dodd-Frank’s anti retaliation provisions prohibits an employer from taking retaliatory action against a whistleblower for making reports which are required or protected under Sarbanes-Oxley. The problem arises from the fact that, under Sarbanes-Oxley, employees receive anti retaliation protections for reporting misconduct to a variety of entities, and not just to the SEC. The SEC has promulgated an interpretive rule stating that, despite Dodd-Frank’s express definition of “whistleblower,” the statute’s whistleblower protections extend to those who only make Sarbanes-Oxley protected reports in addition to those who fall under the statutory definition. \u0000One would rightfully presume that this is a classic setup for the Chevron doctrine to determine whether the SEC’s interpretive rule warrants deference. However, not all of the Circuit Courts of Appeals actually applied Chevron. The Fifth, Second, and Ninth Circuits have all addressed the issue, and with widely varying results. The Fifth Circuit applied Chevron, found no ambiguity in the statute, and rejected the SEC’s interpretive rule. The Second Circuit’s Chevron analysis reached a different result, affording deference to the SEC and creating the circuit split. However, the Second Circuit’s analysis utilized the Supreme Court’s interpretive method from King v. Burwell. The Ninth Circuit’s analysis did not use Chevron at all, and expressly relied entirely on King to conclude that, despite Dodd-Frank’s express statutory definition, the term “whistleblower” unambiguously has a different meaning in Dodd-Frank’s anti retaliation context. \u0000On February 21, 2018, the Court issued its decision in the Somers case, concluding that the SEC's interpretive rule should receive no Chevron deference, and that the plain statutory definition of \"whistleblower\" should apply. The Court did not, however, address the Second or Ninth Circuits' use of King v. Burwell, and the jurisprudential implications of such an approach. This Note reveals these courts' reliance on King, and discusses the potential implications of leaving this interpretive approach unaddressed.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"75 1","pages":"513"},"PeriodicalIF":0.0,"publicationDate":"2017-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42917834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Leidos Mixup and the Misunderstood Duty to Disclose in Securities Law","authors":"Matthew C. Turk, Karen E. Woody","doi":"10.2139/SSRN.2996555","DOIUrl":"https://doi.org/10.2139/SSRN.2996555","url":null,"abstract":"This article concerns an upcoming Supreme Court case, Leidos, Inc. v. Indiana Public Retirement System (Leidos), and examines the broader issues that it raises for securities law. The consensus among scholars and practitioners is that Leidos presents a direct conflict among the circuit courts over a core question of securities law—when a failure to comply with the SEC’s disclosure requirements can constitute fraud under Rule 10b-5. This article provides a much different interpretation of the case. It begins by demonstrating that the circuit split which is presumed to have brought Leidos to the Supreme Court does not in fact exist. It then shows that, rather than being riddled with disagreement, the leading judicial analysis in this area of the law instead reflects a shared set of misconceptions about how the securities regulation architecture works. \u0000By unraveling the underlying sources of the Leidos mixup, this article makes three contributions. First, it identifies overlooked aspects of the disclosure rules at issue in Leidos, and provides a novel analysis of how the case should (and likely will) be decided. Second, it explains how errors in leading interpretations of the legal authorities implicated in Leidos carry over to other prominent portions of the regulatory framework, namely Sections 11 and 12 of the 1933 Securities Act. Third, it demonstrates that a central yet ill-defined securities doctrine—the duty to disclose—functions primarily to obscure rather than clarify the legal questions at issue in disclosure fraud claims. Taken together, these points suggest that Leidos is a more unusual case than has been appreciated, and stands at a remarkable confluence of legal and scholarly confusions, many of which implicate fundamental principles of securities law.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"75 1","pages":"957"},"PeriodicalIF":0.0,"publicationDate":"2017-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44783319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Demise of Capital Clemency","authors":"Paul J. Larkin, Jr.","doi":"10.2139/ssrn.2862704","DOIUrl":"https://doi.org/10.2139/ssrn.2862704","url":null,"abstract":"Over the last four decades numerous opponents of capital punishment have criticized the institution of executive clemency. Their principal complaint has been that, with a few isolated exceptions, far too many chief executives have granted condemned prisoners clemency far too infrequently. This is an unfortunate development, critics argue, one due entirely to the politicization of criminal justice, particularly capital punishment. This Article maintains that these criticisms are unfounded or overstated. It concludes that a governor should not merely grant clemency, but also issue a pardon to any offender who proves to be innocent of his crime, but notes that the instances in which that scenario might occur are few and far between. The Article also maintains that, given the numerous opportunities for the jury and state courts to spare those offenders, there is far less need today for a governor to second-guess the unanimous view of the local community and state judiciary that a death sentence is the appropriate punishment. Finally, the Article notes that critics do not address the horrific facts of some capital cases — facts that can signify that death is the appropriate penalty.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68398705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 'Ample Alternative Channels' Flaw in First Amendment Doctrine","authors":"Enrique Armijo","doi":"10.2139/SSRN.2595188","DOIUrl":"https://doi.org/10.2139/SSRN.2595188","url":null,"abstract":"In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. The underlying rationale is substitutability. If the ample alternative channels requirement is met, the message could have been expressed in some other legal way. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. Free speech scholars have ignored this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn’t — i.e., to substitute the court’s own value judgments for those of the speaker’s. The doctrine’s pernicious effects are expanding in the modern communications world, where speech-facilitating technologies grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan’s concurrence in United States v. O’Brien, shows that ample alternatives analysis was in its incipiency a misguided afterthought — born, as historical documents never examined before this Article show, as literally a margin note to an unpublished draft. In the place of ample alternative channels analysis, courts should ask whether a speaker’s chosen mode is incompatible with the government’s interest in the restriction in question. An incompatibility rule would be more consistent with the Roberts Court’s turn toward reviewing content-neutral speech restrictions rigorously, as evidenced in 2014’s McCullen v. Coakley.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"22 1","pages":"1657"},"PeriodicalIF":0.0,"publicationDate":"2016-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68215855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lethal Injection: A Horrendous Brutality","authors":"Robin Konrad","doi":"10.2139/SSRN.2889052","DOIUrl":"https://doi.org/10.2139/SSRN.2889052","url":null,"abstract":"In 2012, I had purchased a non-refundable plane ticket to fly from Arizona to Alabama, where I was planning to witness the execution of one of my prior clients on April 12.1 But on April 9, three days before his scheduled execution, he received a stay from the Alabama Supreme Court because of pending lethal-injection litigation.2 He is still alive today because of the pending lethal-injection litigation. That is one of the reasons I love this type of litigation.But I also hate this type of litigation. I am first and foremost a capital habeas attorney. As a capital habeas attorney, my job is to challenge the constitutionality of my client's convictions and his death sentence. In habeas proceedings, I often argue that my client was denied his Sixth Amendment right to effective assistance of trial counsel or that a prosecutor's misconduct deprived him of his right to a fair trial. I firmly believe there is ample evidence demonstrating that the death penalty is, in fact, unconstitutional and can never be carried out in constitutional manner.3 Despite this, we don't always win in federal habeas proceedings.Therefore, once the federal courts have denied habeas relief, the state will generally move forward to carry out the now-deemed-valid death sentence. So I then have to switch hats; I am no longer challenging my client's death sentence. Instead, I must begrudgingly accept that the state is entitled to execute my client. However, although the state may be permitted to carry out his sentence, it must do so in compliance with not only the Eighth Amendment but also the First and Fourteenth Amendments. So at this stage of the process, I now seek to protect my client's civil rights.My experience with lethal-injection litigation started in September 2007, when the Supreme Court granted certiorari in Baze v. Rees,4 a case out of Kentucky that challenged the constitutionality of the three-drug lethal-injection formula that was used by all death-penalty states at that time.5 With one exception, that grant of certiorari had the result of postponing the executions of all prisoners on death row across the country until after the merits ruling was issued in April 2008.6 The exception was Michael Richard, a Texas prisoner who was executed on the same day certiorari was granted because a court clerk refused to keep the door open past 5:00 p.m., even though Richard's lawyers had called the clerk asking if they could file a few minutes late due to computer issues.7The Supreme Court's decision to review the Baze case resulted in a challenge to the lethal-injection procedures in Arizona, which in turn kept the state from executing several of our clients for three years.8Did this litigation ultimately save these clients' lives? No, but a stay of execution meant that they could investigate and litigate challenges to their convictions and death sentences that may have been overlooked including pursuing a DNA issue in one of our clients' cases. The fact that a client remain","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"73 1","pages":"1127"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68421207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Elements of a new ethical framework for big data research","authors":"E. Vayena, Urs Gasser, Alexandra Wood, David O'Brien, Micah Altman","doi":"10.5167/UZH-135645","DOIUrl":"https://doi.org/10.5167/UZH-135645","url":null,"abstract":"Emerging large-scale data sources hold tremendous potential for new scientific research into human biology, behaviors, and relationships. At the same time, big data research presents privacy and ethical challenges that the current regulatory framework is ill-suited to address. In light of the immense value of large-scale research data, the central question moving forward is not whether such data should be made available for research, but rather how the benefits can be captured in a way that respects fundamental principles of ethics and privacy. \u0000 \u0000In response, this Essay outlines elements of a new ethical framework for big data research. It argues that oversight should aim to provide universal coverage of human subjects research, regardless of funding source, across all stages of the information lifecycle. New definitions and standards should be developed based on a modern understanding of privacy science and the expectations of research subjects. In addition, researchers and review boards should be encouraged to incorporate systematic risk-benefit assessments and new procedural and technological solutions from the wide range of interventions that are available. Finally, oversight mechanisms and the safeguards implemented should be tailored to the intended uses, benefits, threats, harms, and vulnerabilities associated with a specific research activity. \u0000 \u0000Development of a new ethical framework with these elements should be the product of a dynamic multistakeholder process that is designed to capture the latest scientific understanding of privacy, analytical methods, available safeguards, community and social norms, and best practices for research ethics as they evolve over time. Such a framework would support big data utilization and help harness the value of big data in a sustainable and trust-building manner.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"72 1","pages":"420-441"},"PeriodicalIF":0.0,"publicationDate":"2016-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70639895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}