Washington University Law Review

http://openscholarship.wustl.edu/law_lawreview

List of Papers (Total 4,986)

Algorithmic Risk Assessments and the Double-Edged Sword of Youth

Risk assessment algorithms—statistical formulas that predict the likelihood a person will commit crime in the future—are used across the country to help make life-altering decisions in the criminal process, including setting bail, determining sentences, selecting probation conditions, and deciding parole. Yet many of these instruments are “black-box” tools. The algorithms they...

A Lawyer’s Divorce: Will Decentralized Ledgers and Smart Contracts Succeed In Cutting Out the Middleman?

Society is progressing at a rapid pace. As math and science evolve, new technologies begin to utilize these advances and create something novel. These technological changes are revolutionizing not only the science-oriented industries, but also the humanities. One such example falls within the legal arena. More specifically, the exciting advent of smart contracts and their use of...

How the War on Terror Is Transforming Private U.S. Law

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private...

Corporate Short-Termism and Intertemporal Choice

This paper presents an intertemporal model of short-termism. Critics have portrayed short-termism in broad brushstrokes as the bane of corporate governance. But short-termism does not have a self-evident, efficiency-based normative value. A simple application of a well-accepted asset valuation theory shows that short-termism is not per se inefficient. If profitable enough, a...

Could Official Climate Denial Revive the Common Law as a Regulatory Backstop?

The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as...

No Pay for Sexist Performance: How Gender Disparities in Healthcare Hurt Hospitals’ Pay for Performance Reimbursements

Gender disparities and discrimination in healthcare treatment are vast. Women in pain are deemed hysterical, heart attacks in women are caught less frequently than in men due to symptom presentation differences, and women are screened less often than men for some cancers. Meanwhile, in order to be fully reimbursed for healthcare services, legislative reforms increasingly evaluate...

Decentralized Public Ledger Systems and Securities Law: New Applications of Blockchain Technology and the Revitalization of Sections 11 And 12(A)(2) of the Securities Act Of 1933

When Bitcoin launched in 2009, it was the first virtual cryptocurrency to gain popularity and attain widespread use. Much attention has been paid to Bitcoin’s well-publicized advances and setbacks as the world’s foremost virtual currency. Less attention has been paid, however, to the decentralized public ledger technology that enables Bitcoin to function. That technology is just...

Algorithmic Entities

In a 2014 article, Professor Shawn Bayern demonstrated that anyone can confer legal personhood on an autonomous computer algorithm by putting it in control of a limited liability company. Bayern’s demonstration coincided with the development of “autonomous” online businesses that operate independently of their human owners—accepting payments in online currencies and contracting...

The Corporate Governance of National Security

At hundreds of companies, the government installs former spies and military officers to run the business without shareholder oversight, putting security before profits in order to protect vital projects from potentially treasonous influences. Through procedures I call “National Security Corporate Governance,” corporate boardrooms have quietly become instruments of national...

The Supreme Court Acknowledges Congress’ Authority to Confer Informational Standing in Spokeo, Inc. v. Robins

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III...

To Consider or to Use? Citation to Foreign Authority and Legal Aesthetics

In this essay I consider what it means to consider something. More directly, I consider how a judge might distinguish a source used for inspiration from a source used as legal authority. I wonder if Justice Sotomayor posits this line-drawing problem as a koan to would-be clerks. To my limited ken, the epistemological limits of the English language make it impossible to separate...

Wrongly “Identified”: Why an Actual Knowledge Standard Should Govern Health Care Providers’ False Claims Act Obligations to Report and Return Medicare and Medicaid Overpayments

In 2015, Medicare spent $632 billion on health care for America’s elderly (and other covered groups). Medicaid spent another $554 billion to provide health care to America’s needy. The government estimates that improper payments account for as much as 10% of Medicare and Medicaid spending. Given the vast amount of money at stake, and the fact that there is bipartisan support for...

The Food We Eat and the People Who Feed Us

Food justice scholars and advocates have made a simple but important point: for all the attention we pay to the food we eat, we pay far too little attention to the people who feed us. But can law play a role in directing consumer attention to labor-related issues? Traditional food law paradigms provide at best incidental benefits to food workers because these types of laws...

Gatekeepers Gone Wrong: Reforming the Chapter 9 Eligibility Rules

In order to gain access to chapter 9 bankruptcy, municipalities must demonstrate that they meet several eligibility requirements. These requirements were put in place to prevent municipalities from making rash decisions about filing for bankruptcy. Too often, however, these requirements impede municipalities from attaining desperately needed relief. This Article demonstrates that...

Confirming Supreme Court Justices in a Presidential Election Year

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service...

Closing the Financial Privacy Loophole: Defining “Access” in the Right to Financial Privacy Act

Part I of this Note will discuss the Miller decision and the hole it left in the Fourth Amendment’s protection of financial information left in the hands of trusted third parties. Part II will discuss Congress’s response to Miller in the RFPA. Part III will discuss the cramped interpretation of the RFPA affirmed by the Sixth Circuit, its misapplication of the statute, and policy...

Patent-Ineligibility as Counteraction

Today, normative debates over restrictions on patent-eligibility are uniformly premised on a discrimination theory of patent-ineligibility: the restrictions are assumed to cause the patent regime as a whole to discriminate against, and thus grant weaker patent protection for, the affected technology. Under discrimination theory, the justification for a rule of patent...

Prisoners and Pleading

Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than 92 percent of those actions were filed pro se. Pro se prisoners frequently use—and in many districts are required to use— standardized complaint forms provided by the federal judiciary. These standard forms were created in the 1970s at the recommendation of a committee of federal judges...

Who has Standing to Sue the President Over Allegedly Unconstitutional Emoluments?

Two provisions of the U.S. Constitution that have received comparatively little public attention over the past 227 years are suddenly all over the news, having provided the basis for three pending lawsuits against the president of the United States. The Foreign and Domestic Emoluments Clauses arose out of the Founders’ concern with corruption – in particular with the corrupting...

The Boogeyman: Derek Boogaard and the Detrimental Effects of Section 301 Preemption

This Note focuses on the preemptive effect of section 301 of the Labor Management Relations Act (LMRA) in the suit against the National Hockey League (NHL) by the Estate of former NHL player Derek Boogaard. The Note will contrast Boogaard v. National Hockey League, in which section 301 preempted the Estate’s negligence claims, with several National Football League (NFL) cases...

Deportation Deadline

Deadlines regulate nearly all facets of life. In U.S. law, deadlines control the timeliness of a claim in the forms of statutes of limitations and common law doctrines such as laches. In nearly all areas of the law, whether involving claims brought by private actors or the government, and in both criminal and civil contexts, an expiration date cuts off a plaintiff’s right to...

The Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure

Genetic modification is a process used for a myriad of purposes, including the cultivation of plant species that ultimately find their way into countless food products across the world.1 As the usage of genetically modified organisms (GMOs) has grown, so has the public debate surrounding their presence in food, and, more specifically, their undisclosed presence in food. Until...

IP, R.I.P.

Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work...

Amnesty for Even the Worst Offenders

In recent years, global policy makers have declared that heads of state must be held accountable through criminal prosecution for internationally wrongful acts. Scholars too have insisted that the international system’s embrace of accountability excludes or renders illegal the granting of amnesty. This Article argues that that position is too narrow and uses the ongoing conflict...