Washington & Lee University School of Law Scholarly Commons

Joshua’s Children: Constitutional Responsibility for Institutionalized Persons After DeShaney v. Winnebago County

Susan Stefan — Thu, 09 May 2013 15:10:12 PDT

Coercion, Consent, Compassion

John D. King — Thu, 09 May 2013 15:10:12 PDT

Sheltering Psychiatric Patients from the DeShaney Storm: A Proposed Analysis for Determining Affirmative Duties to Voluntary Patients

Claire Marie Hagan — Thu, 09 May 2013 15:10:11 PDT

Review: Is Hedge Fund Registration Necessary?

J. W. Verret — Thu, 09 May 2013 15:10:10 PDT

Why Register Hedge Fund Advisers— A Comment

Lyman Johnson — Thu, 09 May 2013 15:10:10 PDT

Is Hedge Fund Adviser Registration Necessary to Accomplish the Goals of the Dodd–Frank Act’s Title IV?

Luther R. Ashworth II — Thu, 09 May 2013 15:10:09 PDT

Docket Dividends: Growth in Shareholder Litigation Leads to Refinements in Chancery Procedures

Donald F. Parsons Jr. et al. — Thu, 09 May 2013 15:10:08 PDT

Risk-Based Student Loans

Michael Simkovic — Thu, 09 May 2013 15:10:08 PDT

Information Privacy and Data Control in Cloud Computing: Consumers, Privacy Preferences, and Market Efficiency

Jay P. Kesan et al. — Thu, 09 May 2013 15:10:07 PDT

So many of our daily activities now take place “in the cloud,” where we use our devices to tap into massive networks that span the globe. Virtually every time that we plug into a new service, the service requires us to click the seemingly ubiquitous box indicating that we have read and agreed to the provider’s terms of service (TOS) and privacy policy. If a user does not click on this box, he is denied access to the service, but agreeing to these terms without reading them can negatively impact the user’s legal rights. As part of this work, we analyzed and categorized the terms of TOS agreements and privacy policies of several major cloud services to aid in our assessment of the state of user privacy in the cloud. Our empirical analysis showed that providers take similar approaches to user privacy and were consistently more detailed when describing the user’s obligations to the provider than when describing the provider’s obligations to the user. This asymmetry, combined with these terms’ nonnegotiable nature, led us to conclude that the current approach to user privacy in the cloud is in need of serious revision. In this Article, we suggest adopting a legal regime that requires companies to provide baseline protections for personal information and also to take steps to enhance the parties’ control over their own data. We emphasize the need for a regime that allows for “data control” in the cloud, which we define as consisting of two parts: (1) the ability to withdraw data and require a service provider to stop using or storing the user’s information (data withdrawal); and (2) the ability to move data to a new location without being locked into a particular provider (data mobility). Ultimately, our goal with this piece is to apply established law and privacy theories to services in the cloud and set forth a model for the protection of information privacy that recognizes the importance of informed and empowered users.

When Certainty Dissolves into Probability: A Legal Vision of Toxic Causation for the Post-Genomic Era

Steve C. Gold — Thu, 09 May 2013 15:10:06 PDT

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.

Vertical Boilerplate

James Gibson — Thu, 09 May 2013 15:10:05 PDT

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the whole transaction. Yet real-world transactions often involve multiple layers of contracts, each with its own information costs. What is needed, then, is a “vertical” analysis, a study that examines fewer contracts of any one kind but tracks all the contracts the consumer encounters, soup to nuts. This Article presents the first vertical study of boilerplate. It casts serious doubt on the market mechanism and shows that existing scholarship fails to appreciate the full scale of the information cost problem. It then offers two regulatory solutions. The first works within contract law’s unconscionability doctrine, tweaking what the parties need to prove and who bears the burden of proving it. The second, more radical solution involves forcing both sellers and consumers to confront and minimize boilerplate’s information costs—an approach I call “forced salience.” In the end, the boilerplate experience is as deep as it is wide. Our empirical work should reflect that fact, and our policy proposals should too.

Why Strickland is the Wrong Test for Violations of the Right to Testify

Daniel J. Capra et al. — Thu, 09 May 2013 15:10:04 PDT

A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important “personal” rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant’s right to testify. This Article proposes a new test to better secure and enforce the right, without subjecting courts to burdensome post-trial motions.

The Public Pension Crisis

Jack M. Beermann — Thu, 09 May 2013 15:10:03 PDT

Unfunded employee pension obligations will present a serious fiscal problem to state and local governments in the not-toodistant future. This Article takes a look at the causes and potential cures for the public pension mess, mainly through the lens of legal doctrines that limit public employers’ ability to avoid obligations. As far as the causes are concerned, this Article examines the political environment within which public pension promises are made and funded, as an attempt to understand how this occurred. The Article then turns to ask if states could implement meaningful reforms without violating either state or federal law. In particular, the Article looks at state balanced budget requirements, state constitutional provisions regarding public employee pensions, and federal constitutional law and asks whether states could significantly reduce their pension promises to public employees without violating the law. The entire analysis is also informed by the concerns of the employees and retirees whose perhaps sole source of retirement income would be reduced by changes in benefit levels. The Article concludes with remarks placing the matter in that context, raising the possibility of a bailout to ameliorate the potentially disastrous consequences of reform to public employees and retirees.

Thu, 09 May 2013 15:10:02 PDT

More on Void Orders

Doug Rendleman — Thu, 25 Apr 2013 09:32:44 PDT

None available.

Corporate Law Professors as Gatekeepers

Lyman P. Q. Johnson — Thu, 25 Apr 2013 09:19:36 PDT

None available.

Punitive Damages - Something for Everyone?

Doug Rendleman — Thu, 25 Apr 2013 09:19:35 PDT

None available.

Beyond the Inevitable and Inadequate Regulation of Bankers

Lyman P. Q. Johnson — Thu, 25 Apr 2013 09:19:34 PDT

None available.

The Crossroads of Investment Arbitration

Susan D. Franck — Wed, 24 Apr 2013 11:32:30 PDT

None available.

Empirical Modalities: Lessons for the Future of International Investment

Susan D. Franck — Wed, 24 Apr 2013 11:32:29 PDT

None available.

Washington & Lee University School of Law Scholarly Commons

Joshua’s Children: Constitutional Responsibility for Institutionalized Persons After DeShaney v. Winnebago County

Coercion, Consent, Compassion

Sheltering Psychiatric Patients from the DeShaney Storm: A Proposed Analysis for Determining Affirmative Duties to Voluntary Patients

Review: Is Hedge Fund Registration Necessary?

Why Register Hedge Fund Advisers— A Comment

Is Hedge Fund Adviser Registration Necessary to Accomplish the Goals of the Dodd–Frank Act’s Title IV?

Docket Dividends: Growth in Shareholder Litigation Leads to Refinements in Chancery Procedures

Risk-Based Student Loans

Information Privacy and Data Control in Cloud Computing: Consumers, Privacy Preferences, and Market Efficiency

When Certainty Dissolves into Probability: A Legal Vision of Toxic Causation for the Post-Genomic Era

Vertical Boilerplate

Why Strickland is the Wrong Test for Violations of the Right to Testify

The Public Pension Crisis

Table of Contents

More on Void Orders

Corporate Law Professors as Gatekeepers

Punitive Damages - Something for Everyone?

Beyond the Inevitable and Inadequate Regulation of Bankers

The Crossroads of Investment Arbitration

Empirical Modalities: Lessons for the Future of International Investment