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Postponing Federal Elections Due To Election Emergencies, Michael T. Morley

Washington and Lee Law Review Online

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when …

Say The Magic Words: Establishing A Historically Informed Standard To Prevent Partisanship From Shielding Racial Gerrymanders From Federal Judicial Review, Emily K. Dalessio

Washington and Lee Law Review

In its 2019 decision in Rucho v. Common Cause, the Supreme Court closed the doors of the federal courts to litigants claiming a violation of their constitutional rights based on partisan gerrymandering. In Rucho, the Court held that partisan gerrymandering presents a political question that falls outside the jurisdiction of the federal courts. However, the Supreme Court did not address an insidious consequence of this ruling: namely, that map-drawers may use partisan rationales to obscure what is otherwise an unconstitutional racial gerrymander. This Note uses North Carolina as an example of a state with a long history of …

Federal Magistrate Court Of Appeals: Whether Magistrate Judge Disposition Of Section 2255 Motions Under Consent Jurisdiction Is Statutorily And Constitutionally Permissible, Corey J. Hauser

Washington and Lee Law Review

For decades the Supreme Court has balanced the tension between judicial efficiency and adherence to our constitutional system of separation of powers. As more cases were filed in federal courts, Congress increased the responsibilities and power given to magistrate judges. The result is magistrate judges wielding as much power as district judges. With post-conviction relief under § 2255, magistrate judges take on a whole new role— appellate judge—reviewing and potentially overturning sentences imposed by district judges.

This practice raises two concerns. First, did Congress intend to statutorily give magistrate judges this power? The prevailing interpretation is that § 2255 motions …

The Pandemic Juror, Melanie D. Wilson

Washington and Lee Law Review Online

While the deadly and highly contagious COVID-19 virus lingers and spreads across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and other concerns for the rights of the accused. Overlooked in this calculus is the importance of jurors and their safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” Without jurors, there is no justice.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely …

Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick.

The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in the …

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Washington and Lee Law Review Online

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific …

The Unqualified Mess Of Qualified Immunity; A Doctrine Worth Overruling, Allison Weiss

Washington and Lee Law Review Online

This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit, 77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts …

If A Fetus Is A Person, It Should Get Child Support, Due Process, And Citizenship, Carliss N. Chatman

Washington and Lee Law Review Online

This Article was originally published in The Washington Post on May 17, 2019. It has been edited and updated prior to its publication in the Washington and Lee Law Review.

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act subjects a doctor who performs an abortion to as many as ninety-nine years in prison. The law has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “[a] human being, specifically including an unborn child in utero …

Personhood: Law, Common Sense, And Humane Opportunities, Helen M. Alvaré

Washington and Lee Law Review Online

It is pointless to approach Professor Chatman’s argument on its own terms (to wit, “tak[ing] our laws seriously,” or equal application across myriad legal categories of “full personhood” rights) because these terms are neither seriously intended nor legally comprehensible. Instead, her essay is intended to create the impression that legally protecting unborn human lives against abortion opens up a Pandora’s box of legal complications so “ridiculous” and “far-fetched” that we should rather just leave things where they are under the federal Constitution post-Roe v. Wade and Planned Parenthood v. Casey. This impression, in turn, is a tool to …

Under Ten Eyes, Anthony Michael Kreis

Washington and Lee Law Review Online

Carliss Chatman’s If a Fetus Is a Person, It Should Get Child Support, Due Process and Citizenship brilliantly captures the moment America is in, where abortion rights hang in the balance as state legislators, like those in Alabama, Georgia, Ohio, and elsewhere clamor to embrace fetal personhood. But, as Professor Chatman illustrates, legislators have expressed no interest in the full logical extent of this policy or the rights that should attach to a fetus if their measures ultimately become effective. The article incisively demonstrates how fetal personhood is singularly focused on ending abortion in the United States and is gaining …

Limited Privacy In “Pings:” Why Law Enforcement’S Use Of Cell-Site Simulators Does Not Categorically Violate The Fourth Amendment, Lara M. Mcmahon

Washington and Lee Law Review

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after …

Extraterritorial Rights In Border Enforcement, Fatma E. Marouf

Washington and Lee Law Review

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small, but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Inadequate Protection: Examining The Due Process Rights Of Individuals In Child Abuse And Neglect Registries, Amanda S. Sen, Stephanie K. Glaberson, Aubrey Rose

Washington and Lee Law Review

This Article seeks to advance due process protections for people included in state child abuse and neglect registries. Between states, there are differences in the types of cases included in the state registry and the process required to be placed on or removed from the registry. To obtain judicial due process review, a plaintiff must demonstrate that a protected liberty or property interest is at stake. When federal courts have evaluated the individual liberty interest(s) implicated by placement on state child abuse and neglect registries, they have so far only found such an interest when the plaintiff’s employment opportunities were …

Secret Conviction Programs, Meghan J. Ryan

Washington and Lee Law Review

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Supervisors Without Supervision: Colon, Mckenna, And The Confusing State Of Supervisory Liability In The Second Circuit, Ryan E. Johnson

Washington and Lee Law Review

This Note received the 2019 Washington and Lee Law Council Law Review Award.

This Note analyzes two intra-Second Circuit splits that make it nearly impossible for prisoners to recover against supervisors under § 1983. First, district courts in the Second Circuit are divided as to whether the five categories of personal involvement defined in Colon v. Coughlin survive the Supreme Court’s decision in Ashcroft v. Iqbal. Personal involvement by the supervisory defendant is a necessary element to impose supervisory liability. Some district courts hold that only the first and third Colon factors survive Iqbal, while others hold that all …

Isolation For Profit: How Privately Provided Video Visitation Services Incentivize Bans On In-Person Visitation Within American Correctional Facilities, J. Tanner Lusk

Washington and Lee Journal of Civil Rights and Social Justice

American correctional facilities are banning in-person visitation in lieu of privately provided and expensive video visitation services. This Note discusses the types of private services provided; how video visitation negatively affects inmates’ mental health and finances; and the ongoing legal battle occurring in Knox County, Tennessee, regarding whether the Knox County Jail’s ban on in-person visitation violates the Constitution. Because of the significant degree of deference courts grant correctional facilities when considering whether challenged regulations violate the Constitution, it will be difficult for the Knox County Jail inmates to successfully argue that the jail has violated their constitutional rights. There …

Reasonable Doubt And Relativity, Michael D. Cicchini

Washington and Lee Law Review

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.

Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, …

Fetal Equality, Shaakirrah R. Sanders

Washington and Lee Law Review Online

I join Carliss Chatman’s call to fully consider the equal protection implications of the conception theory and raise an additional right to which a fetus may be entitled as a matter of equal protection: health care, which implicates state laws that provide civil and criminal exemptions to parents who choose religious healing instead of medical care for their children and minor dependents. The evidence of harm to children from religious healing is well documented. Yet, currently, approximately forty-three U.S. states and the District of Columbia have some type of exemption to protect religious healing parents in civil and criminal cases. …