Washington and Lee University

Washington and Lee University School of Law
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    Delegated Corporate Voting and the Deliberative Franchise

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    Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card without error); proxy-holders merely transmit the shareholder’s instruction as a formality. This shift is more significant than generally recognized because, as this Essay explains, it restores the potential for deliberative shareholder governance to the large, publicly held corporation. Furthermore, the shift has occurred at a moment in history when technologies exist to facilitate new processes of deliberative shareholder governance. Market actors now are leveraging technology to create such innovations as pass-through voting and advance voting instructions, and academic support is building for new rules that would require intermediaries to provide their beneficial holders with choice infrastructure. This is the realization of the New Deal project to make shareholder preference-satisfaction the crux of the share-holder franchise, and it holds real promise to move corporate governance beyond shareholder wealth maximization

    Unshielded: How the Police Can Become Touchable

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    This Review proceeds in three Parts. First, Part I examines Shielded’s text, highlighting Schwartz’s analysis of the problem of unaccountable police, the many barriers to holding police accountable, and her proposed solutions. Part II then critically examines Schwartz’s work, examining pieces of the problem she left undiscussed and the relative shortcomings of her discussion of possible solutions. Finally, Part III takes an abolitionist approach, delving into potential nonreformist reforms and the solution of full abolition, as well as examining the most significant objection to abolitionist approaches: the problem of violence

    How the Blockchain Undermined Digital Ownership

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    The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the NFT craze, chief among them—have ranged from frivolous opportunities for speculation to outright fraud. Rather than sewing technological seeds that might have yielded a workable proof-of-concept for digital property interests in consumer goods, exploitative blockchain schemes have salted the earth, threatening to discredit the broader, and fundamentally more important, project of constructing a legal framework for digital ownership

    Silencing Students: How Courts Have Failed to Protect Professional Students’ First Amendment Speech Rights

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    Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially disrupts or interferes with school activities. However, prior to 2021, the Court had never directly addressed whether a school’s capacity to sanction speech extended off campus. This changed with Mahanoy Area School District v. B. L., where the Court implemented a heightened Tinker standard for off campus speech, indicating some hesitation to extend school authority to cyberspace. As monumental as the decision is, it is unlikely that Mahanoy will do much to safeguard professional students’ First Amendment rights. In the fifty years following Tinker, the Supreme Court has consistently denied certiorari in cases involving professional student speech, whether on or off campus. In the absence of such guidance, appellate courts have struggled with how and to what extent to apply Tinker and its progeny to professional programs. This has led to inconsistent judicial approaches—almost all favoring universities—that provide professional students with little guidance or reassurance in the strength of their constitutional rights. This Note argues that courts have failed to protect professional students’ First Amendment speech rights, both on and off campus. The method by which appellate courts have analyzed and applied these doctrines suggests that bad facts are creating bad, or at least incomplete, law. By carefully examining student speech doctrines before exploring professional student speech decisions, this Note asserts that appellate courts have performed relatively cursory reviews of Tinker and its progeny, resulting in misrepresentations of the Supreme Court’s precedent. However, this Note proposes that this is an avoidable outcome that careful, rhetorical analysis of Supreme Court precedent can rectify. When properly analyzed, student speech doctrines should provide a sufficient basis to reliably evaluate professional student speech, so long as courts consider the special characteristics of the professional school environment

    Pandemic Silver Lining: Discovering the Reasonableness of Remote Learning as an Accommodation Under the ADA

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    As society returned to “normal” following the worldwide pandemic caused by the outbreak of COVID-19, higher education students around the world could be heard celebrating and warmly welcoming their return to in-person classes. With this return came the face-to-face social interactions most longed for through the worldwide lockdown with friends, classmates, and professors. Some may even feel that in-person learning is more effective than what had become the norm––Zoom university. At this moment, however, these institutions can and should evaluate the potential benefits and continued utility of this alternate way of doing higher education that was forced upon them for over a year. In doing so, institutions should remember and pay special attention to the way it impacted a growing population within their student body––those with disabilities. Courts in this country must be aware of how this newly discovered way of participating in higher education classes may now be a presumptively reasonable accommodation under the Americans with Disabilities Act (ADA) for those students who, due to their disability, cannot attend in-person. This Note incorporates doctrinal and social science evidence in support of the argument that given the reliance on advanced technologies during the pandemic, virtual learning is a reasonable accommodation for qualified students with disabilities

    \u3cem\u3eWhite v. Panic\u3c/em\u3e, in Feminist Judgments: Corporate Law Rewritten (Anne M. Choike et al. eds., 2023)

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    Corporate law has traditionally assumed that men organize business, men profit from it, and men bring cases in front of male judges when disputes arise. It overlooks or forgets that women are dealmakers, shareholders, stakeholders, and businesspeople too. This lack of inclusivity in corporate law has profound effects on all of society, not only on women\u27s lives and livelihoods. This volume takes up the challenge to imagine how corporate law might look if we valued not only women and other marginalized groups, but also a feminist perspective emphasizing the importance of power dynamics, equity, community, and diversity in corporate law. Prominent lawyers and legal scholars rewrite foundational corporate law cases, and also provide accompanying commentary that situates each opinion in context, explains the feminist theories applied, and explores the impact the rewritten opinion might have had on the development of corporate law, business, and society.https://scholarlycommons.law.wlu.edu/fac_books/1172/thumbnail.jp

    From Natchitoches to Nuremberg: The Life of Legal Pioneer Lyria Dickason

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    Lyria was one of a small handful of women who graduated from a Louisiana law school in the 1930’s. Despite the employment barriers facing female attorneys, she went on to become one of the first female law clerks in both the federal and state judiciary. To date, Lyria’s story has not been told. I have recently discovered, however, that Lyria’s children and grandchildren preserved her letters to her family. They are a treasure trove of information about a woman whose career took her from rural Louisiana to Louisiana’s highest court as well as the post-war ruins of Nazi Germany. The letters provide a rare glimpse into long-past moments in history, including the career of a woman who worked to establish herself in the male-dominated legal profession. And the correspondence introduces us to a woman whose humor, sense of adventure, and love of family are evident on every page


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    The Prosecutor Lobby

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    Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded. Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists

    An Introduction to Law, Law Study, and the Lawyer\u27s Role (4th ed. 2023)

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    This unique book is designed to introduce non-lawyers to what law is and how it is interpreted and made, and to prepare prospective law students for law school. Although primarily intended for those interested in going to law school, it is also very useful for those who simply want a working knowledge of how the American legal system actually works. The text is highly pragmatic, helping the reader understand not just theory but the realities of how law works and what lawyers actually do to assist clients in the real world. To that end, it contains a sample legal problem along with the necessary legal materials to address it and an illustrative answer.https://scholarlycommons.law.wlu.edu/fac_books/1175/thumbnail.jp


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    Washington and Lee University School of Law is based in United States
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