Washington and Lee law review最新文献

{"title":"Averting the Inherent Dangers of 'Going Dark': Why Congress Must Require a Locked Front Door to Encrypted Data","authors":"G. Corn","doi":"10.2139/SSRN.2630361","DOIUrl":"https://doi.org/10.2139/SSRN.2630361","url":null,"abstract":"\"Going dark\" refers to the current practice of embedding cell devices with encryption without manufacturers retaining the keys to provide \"front door\" access to data. The problems associated with \"going dark\" are real; encryption technologies are making it increasingly easy for individual users to prevent even lawful government access to potentially vital information related to crimes or other national security threats. This evolution of individual encryption capabilities represents a fundamental distortion of the balance between government surveillance authority and individual liberty central to the Fourth Amendment. Because reasonable searches are lawful, the ability to conduct them should not be blocked by commercial encryption designed to be impenetrable. Congress should therefore exercise its authority to ensure that such searches are possible. Only such legislatively mandated \"front door\" access will ensure that, \"the right of the people to be secure in their persons, houses, papers, and effects\" will be protected not only \"against unreasonable searches and seizures,\" but also against attacks by criminals and terrorists.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"72 1","pages":"1433"},"PeriodicalIF":0.0,"publicationDate":"2015-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68231903","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":"Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation","authors":"D. Sloss","doi":"10.2139/SSRN.2380681","DOIUrl":"https://doi.org/10.2139/SSRN.2380681","url":null,"abstract":"Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the concept of “polymorphous public law litigation.” Under the polymorphous model, instead of fixating on constitutional law as the dominant public law discourse, courts apply international law, statutes, and common law — and occasionally constitutional law — to decide public law controversies. The article demonstrates that nineteenth century federal courts applied a polymorphous model of public law litigation.During the twentieth century, the polymorphous model was supplanted by a constitutionalized model of public law litigation, wherein courts rely primarily on constitutional law to decide public law cases. The process of constitutionalization exacerbated the tension between judicial review and popular sovereignty. When the Supreme Court applies constitutional law to decide a case, the Court does not merely decide the case; it also creates or modifies a legal rule that is not subject to revision by legislative majorities. In contrast, when the Court applies other types of law, Congress or state legislatures retain the power to modify the controlling legal rule. Hence, revival of a polymorphous model would help mitigate the tension between judicial review and popular sovereignty.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"71 1","pages":"1757"},"PeriodicalIF":0.0,"publicationDate":"2014-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68161310","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":"'Kill the Sea Turtles' and Other Things You Can't Make the Government Say","authors":"S. W. Gaylord","doi":"10.2139/SSRN.2316743","DOIUrl":"https://doi.org/10.2139/SSRN.2316743","url":null,"abstract":"In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that specialty plates are private speech, one that they are government speech, and another that specialty plates are hybrid speech. Yet another circuit has held that the issue is non-justifiable under the Tax Injunction Act. And the uncertainty continues as North Carolina, Texas, and Oklahoma currently confront litigation over their license plates — litigation that will determine whether States or third parties have the right to select the messages on specialty license plates. This paper explores the Court’s “recently minted” government speech doctrine in the context of specialty plates. In particular, it analyzes the circumstances under which a State can adopt one message (Save the Sea Turtles) while refusing to authorize opposing viewpoints (Kill the Sea Turtles). To date, the majority of circuits has applied a literal speaker test, which looks to see if a reasonable observer would view specialty plates as government or private speech. Under that test, specialty plates are private speech, and any restrictions on the content of such plates must be reasonable and viewpoint neutral, even if a State disagrees with that message. The paper contends that a careful review of Summum, which was decided after all but one of the circuit court decisions, shows that the majority interpretation is wrong. The literal speaker test is inconsistent with the “control” test set out in Summum and Johanns. Under the Court’s new test for government speech, many specialty license plate programs are government speech, and third parties cannot force States to promulgate messages with which they disagree. If a state has a “Save the Sea Turtles” plate to promote conservation and the protection of its wildlife, it cannot be forced to offer a “Kill the Sea Turtles.” And the same holds true for more controversial messages such as Choose Life in North Carolina as well as Texas’s ban on plates containing divisive images such as a Confederate flag. Thus, this paper concludes that Summum marks a significant development in the Court’s free speech jurisprudence, one that affirms the States’ ability to control the messages on their specialty license plates as well as their other expressive activity.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"71 1","pages":"93"},"PeriodicalIF":0.0,"publicationDate":"2013-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68095756","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 New Right in Water","authors":"R. Larson","doi":"10.2139/SSRN.2279557","DOIUrl":"https://doi.org/10.2139/SSRN.2279557","url":null,"abstract":"This Article divides all rights into two broad categories – provision rights and participation rights. With a provision right, the government makes substantive guarantees to provide to some minimum quantity and quality of a good or service. With a participation right, the government is legally proscribed from interfering with individual citizen’s access to institutions and resources controlled or held in trust by the state, and the state is required to facilitate access to those institutions and resources equally and transparently. A growing number of national constitutions guarantee a right to water. Without exception to date, these constitutions frame the right to water as a provision right. A provision right to water raises serious problems of enforceability, equity, and sustainability. This Article critically evaluates the provision right to water and suggests an alternative participation right in water. The foundation of such a participation right in water is laid in many nations by the public trust doctrine, wherein the state holds title to water resources for the benefit of its citizens. Unlike the typical formulation and implementation of the provision right to water, a participation right is sustainable, equitable, and enforceable, and would facilitate public participation, accountability, and experimentation in water policy.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"70 1","pages":"2181"},"PeriodicalIF":0.0,"publicationDate":"2013-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68058232","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 Law School Critique in Historical Perspective","authors":"A. Spencer","doi":"10.2139/SSRN.2017114","DOIUrl":"https://doi.org/10.2139/SSRN.2017114","url":null,"abstract":"Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become more scarce and salaries stagnate, the value proposition of law school rightly is being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the current model of legal education developed. Indeed, a historical perspective on legal education is sorely missing from this debate, as many of the criticisms merely echo charges that have been lodged against legal education for well over a century, but do not draw lessons from how those former critiques ultimately failed to deliver fundamental change. This Article reviews the historical development of legal education in America, including the critiques and reforms made along the way, to see what insight we can gain that will inform our own efforts to make law schools better at preparing lawyers for practice.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"69 1","pages":"1949"},"PeriodicalIF":0.0,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67855783","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":"When Certainty Dissolves into Probability: A Legal Vision of Toxic Causation for the Post-Genomic Era","authors":"Steven Gold","doi":"10.2139/SSRN.2133331","DOIUrl":"https://doi.org/10.2139/SSRN.2133331","url":null,"abstract":"Proof of causation in toxic torts has presented persistent problems for the legal system, because the probabilities that science can know fit poorly with the demands for particularistic proof imposed by the law’s deterministic model of causation. Some scholars have hoped that genomic and molecular information will at last provide scientific certainty — definitive, individualized proof of toxic causation.This Article argues that the opposite is true. Scientific research will increasingly elucidate the ways in which environmental exposures and human genes interact to produce disease, but this deeper knowledge will extend rather than resolve the problem of causal indeterminacy in toxic torts. Genomic and molecular understanding, instead of sounding the death knell for proposals to reform toxic tort causation law, will strengthen the argument for those reforms.This Article proposes a probabilistic causal contribution model to replace the model of deterministic causation in toxic torts, building on earlier scholarly proposals and the creativity of a handful of courts. The Article explores how the model would work and argues that it is superior to present doctrine when assessed against the goals of the tort system.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"70 1","pages":"237"},"PeriodicalIF":0.0,"publicationDate":"2012-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67936232","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":"Rethinking the New Public Health","authors":"Lindsay F. Wiley","doi":"10.2139/SSRN.1864717","DOIUrl":"https://doi.org/10.2139/SSRN.1864717","url":null,"abstract":"This Article contributes to an emerging theoretical debate over the legitimate scope of public health law by linking it to a particular doctrinal debate in public nuisance law. State and local governments have been largely stymied in their efforts to use public nuisance litigation against harmful industries to vindicate collectively-held, common law rights to non-interference with public health and safety. The ways in which this litigation has failed are instructive for a broader movement in public health that is only just beginning to take shape. In response to evolving scientific understanding about the determinants of health, public health advocates are rapidly implementing new law and policy tools to alter our environments and behaviors in ways that improve health at the population level. Critics of this “new public health” movement seek to safeguard individual liberty by disconnecting the law and politics of public health from its science. They argue that modern health threats such as heart disease and diabetes are individual concerns not sufficiently public in nature to trigger doctrines that privilege state intervention over individual rights. Public health scholars engaged in this theoretical debate have overlooked a related doctrinal debate within public nuisance law in which courts have struggled to define the scope of “public rights,” including the right to non-interference with public health. In both debates, critics have rightly insisted that the public must be more than the mere aggregation of private interests. But the narrower conceptions of the public that critics have put forth fail to account for the full scope of the state’s authority and responsibility for public health. This Article stakes out a middle position by adopting the classically liberal view of public health law critics — that state interference with individual liberty requires robust justification — while also defining the public broadly so as to justify considerable state intervention under the banner of public health. Drawing on analysis of public nuisance litigation as a public health tool, I propose that epidemiological harms—which I define as those for which causation can be established at the population level, but not necessarily at the individual level—should be understood as public bads. This conception of the public provides a more robust justification for the new public health law movement that more firmly grounds it in the science of social epidemiology.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"69 1","pages":"207"},"PeriodicalIF":0.0,"publicationDate":"2011-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67764267","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":"Uncertainty and the Search for Truth at Trial: Defining Prosecutorial 'Objectivity' in German Sexual Assault Cases","authors":"S. Boyne","doi":"10.2139/SSRN.1338766","DOIUrl":"https://doi.org/10.2139/SSRN.1338766","url":null,"abstract":"According to German legal scholar, Claus Roxin, German prosecutors are the 'most objective civil servants' in the world. Roxin’s assessment of German prosecution practice reflects the conviction of many German legal scholars that prosecutors in Germany’s inquisitorial system function as second judges dedicated to finding the objective “truth.” In this paper I investigate how prosecutors “translate” the normative duty of objectivity enshrined in the German penal code into observable practices on the ground. I examine prosecutorial decision-making in three sexual assault trials. Sexual assault cases pose unique challenges to prosecutors as well as to the definition of objectivity. Because the crime typically occurs in private, the search for truth often focuses on the testimony of the victim and the suspect. In cases in which the physical evidence is inconclusive and the defendant claims that the victim consented, the focus of the fact finder’s inquiry is often directed at the victim’s credibility. Drawing on transcript and interview data, I propose three models or “faces” of prosecutorial “objectivity.” Surprisingly, despite the fact that judges structure the presentation of evidence in German trials, prosecutors play a critical role in “interpreting” the facts presented at trial. In each of the cases examined in this paper, the face of objectivity is constructed through a relational process that unfolds between the presiding judge and the trail prosecutor. Although many legal scholars maintain that penal code sharply circumscribes prosecutorial discretion in major crime cases in Germany, my research demonstrates that a wide variation exists in the way that individual prosecutors interpret their duty to view the evidence objectively.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"67 1","pages":"1287"},"PeriodicalIF":0.0,"publicationDate":"2010-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68165151","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":"Shareholder Oppression & Dividend Policy in the Close Corporation","authors":"Douglas K. Moll","doi":"10.2139/SSRN.437162","DOIUrl":"https://doi.org/10.2139/SSRN.437162","url":null,"abstract":"The receipt of a dividend is perhaps the most basic method by which a shareholder earns a return on its investment in a corporation. Because of the dividend's importance, scholars have long focused their attention on the fundamental question of when judicial intervention into a company's dividend policy is warranted. Significantly, however, this academic focus has concentrated almost exclusively on the publicly-held corporation. In that context, a number of authorities have argued that there is little need for the judiciary to involve itself in compelling the payment of dividends, primarily because of the disciplinary effect of a well-established market. In the close corporation setting, however, this market-based rationale is wholly inapplicable. A close corporation, by definition, lacks a market for its stock. When close corporation dividend policy is at issue, therefore, a \"hands-off\" attitude by the judiciary makes considerably less sense. Although other scholars have previously made this observation, the academic discussion has not proceeded substantially beyond the observation itself. It is important, therefore, to return to the fundamental question and to consider it in the close corporation setting - i.e., when is judicial intervention into a close corporation's dividend policy warranted? To some extent, a consideration of this question has been aided by the development of the shareholder oppression doctrine. The doctrine of shareholder oppression attempts to safeguard the close corporation minority investor from the improper exercise of majority control. By identifying and protecting the \"reasonable expectations\" of close corporation shareholders, including the reasonable expectation of dividends, the oppression doctrine combats majority shareholder efforts to exclude a minority investor from the company's financial and participatory benefits. Although the doctrine usefully acknowledges that close corporation shareholders can have reasonable expectations of dividends, the doctrine provides no guidance on whether an asserted expectation is \"reasonable,\" and thus enforceable, in the particular circumstances before a court. One could argue, therefore, that the shareholder oppression doctrine has simply rephrased the fundamental question. Asking whether judicial intervention into a close corporation's dividend policy is warranted, in other words, is functionally equivalent to asking whether a shareholder's expectation of dividends is \"reasonable\" in the circumstances. This article squarely addresses the issue of close corporation dividend policy and the question of when judicial intervention is warranted. More specifically, this article analyzes close corporation dividend disputes through the lens of the shareholder oppression doctrine. By examining when a shareholder's expectation of dividends is reasonable and enforceable, this article moves beyond the mere observation that close corporations require greater judicial scrutiny. Indeed, the ","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"122 1","pages":"841"},"PeriodicalIF":0.0,"publicationDate":"2010-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.437162","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68782698","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":"Protecting Children in Virtual Worlds Without Undermining Their Economic, Educational and Social Benefits","authors":"B. Duranske, R. Bloomfield","doi":"10.2139/SSRN.1488165","DOIUrl":"https://doi.org/10.2139/SSRN.1488165","url":null,"abstract":"Advances in virtual world technology pose risks for the safety and welfare of children. Those advances also alter the interpretations of key terms in applicable laws. For example, in the Miller test for obscenity, virtual worlds constitute places, rather than \"works,\" and may even constitute local communities from which standards are drawn. Additionally, technological advances promise to make virtual worlds places of such significant social benefit that regulators must take care to protect them, even as they protect children who engage with them.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"66 1","pages":"1175"},"PeriodicalIF":0.0,"publicationDate":"2009-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186388","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}