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Articles 1 - 30 of 113
Full-Text Articles in Law
The Black Fourth Amendment, Charisma Hunter
The Black Fourth Amendment, Charisma Hunter
Washington and Lee Law Review Online
Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.
The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …
W&L Law Library Newsletter, Vol. 2, Iss. 1 (Nov. 2022), The Law Library At Washington And Lee University School Of Law
W&L Law Library Newsletter, Vol. 2, Iss. 1 (Nov. 2022), The Law Library At Washington And Lee University School Of Law
W&L Law Library Newsletter
W&L Law Library Newsletter, Volume 2, Issue 1 (November 2022).
Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai
Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai
Washington and Lee Law Review Online
The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other …
High Time For Change: The Legalization Of Marijuana And Its Impact On Warrantless Roadside Motor Vehicle Searches, Molly E. O'Connell
High Time For Change: The Legalization Of Marijuana And Its Impact On Warrantless Roadside Motor Vehicle Searches, Molly E. O'Connell
Washington and Lee Law Review Online
The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without …
W&L Law Fall Scholarship Celebration 2022, Andrew Christensen, Michelle Cosby, Jennifer Mitchell, Christopher B. Seaman, Melanie D. Wilson
W&L Law Fall Scholarship Celebration 2022, Andrew Christensen, Michelle Cosby, Jennifer Mitchell, Christopher B. Seaman, Melanie D. Wilson
Library Events
On October 6, 2022, the Washington and Lee Law Library hosted the fourth W&L Law Fall Scholarship Celebration. The event was co-sponsored by the Frances Lewis Law Center and took place in the Law Library's main reading room from 5:00 to 7:00 p.m.
On display were dozens of scholarly articles, books, and chapters authored by the W&L Law faculty and student body between October 2019 and October 2022, with hundreds of additional works accessible online through the Scholarly Commons institutional repository.
Faculty, librarians, staff, and administrators mingled with law students over hors d'oeuvres and wine to peruse the formidable scholarly …
Masthead
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Table Of Contents
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Certain Prosecutors: Geographical Arbitrariness, Unusualness, & The Abolition Of Virginia’S Death Penalty, Bernadette M. Donovan
Certain Prosecutors: Geographical Arbitrariness, Unusualness, & The Abolition Of Virginia’S Death Penalty, Bernadette M. Donovan
Washington and Lee Journal of Civil Rights and Social Justice
Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.
As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty …
Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle
Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle
Washington and Lee Journal of Civil Rights and Social Justice
Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …
Revisiting The Ox-Bow Incident: The Almost Forgotten Western Classic About The Lynching Of Three Innocent Men Is As Relevant As Ever, Marc Bookman
Washington and Lee Journal of Civil Rights and Social Justice
The concept of lynching, several hundred years old and unclear in its origins, has never really left the lexicon. The word itself, however, has taken on different meanings over the years, from a mob’s taking the law into its own hands, to an organized utilization of racial violence as a means of societal control and intimidation; and finally to the more casual and defensive use of the word (“high tech lynching”) by current Supreme Court justices Thomas and Kavanaugh and others after being questioned about their past behaviors. Many academics have opined that the modern system of capital punishment is …
Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri
Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri
Washington and Lee Journal of Civil Rights and Social Justice
This Note examines copyright formalities through a race conscious lens and concludes that further change is necessary given the legacy of economic inequality that communities of color experience. It examines the history of copyright formalities in the United States and the disenfranchisement of Black musical creators through the theft of their intellectual property. In exploring the relationship between race, wealth, and musical copyright protection this Note explains why considering the economic inequality is relevant to ensure copyright protection for Black creators. This Note proposes abolishing the registration timeline for certain remedies and altering the filing fee structure of the copyright …
Wiretapping The Internet: Analyzing The Application Of The Federal Wiretap Act’S Party Exception Online, Hayden Driscoll
Wiretapping The Internet: Analyzing The Application Of The Federal Wiretap Act’S Party Exception Online, Hayden Driscoll
Washington and Lee Journal of Civil Rights and Social Justice
The federal Wiretap Act—originally enacted to curtail the government’s unbridled use of wiretaps to monitor telephonic communications—was amended in 1986 to provide a private right of action, extending the Act’s Fourth Amendment-like protections to private intrusions. Since the advent of the internet, plaintiffs have attempted to predicate claims of unauthorized online privacy intrusions on the Wiretap Act. In response, defendants claim they are parties to the communications at issue and should be absolved of liability under the Act’s party exception. The federal circuit courts of appeal disagree on how the party exception applies in the internet context. This Note evaluates …
It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey
It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey
Washington and Lee Journal of Civil Rights and Social Justice
In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth …
Birthing Alone, Elizabeth Kukura
Birthing Alone, Elizabeth Kukura
Washington and Lee Law Review
Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink …
Something Stinks: The Need For Stronger Agricultural Waste Regulations, Audrey Curelop
Something Stinks: The Need For Stronger Agricultural Waste Regulations, Audrey Curelop
Washington and Lee Law Review
In the twentieth century, the American agricultural industry underwent significant changes—while most food animals were once raised on small family farms, now, over fifty percent are produced entirely inside concentrated animal feeding operations. These large‑scale farming operations house hundreds to thousands of cows, swine, or chickens, which collectively produce hundreds of millions of tons of waste per year. The primary method of waste disposal is land application, a process in which waste is sprayed or spread onto land with no required pretreatment. After land application, waste byproducts make their way into the surrounding air and waterways, posing significant threats to …
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
Washington and Lee Law Review
At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it …
Leave Them Kids Alone: State Constitutional Protections For Gender-Affirming Healthcare, Jessica Matsuda
Leave Them Kids Alone: State Constitutional Protections For Gender-Affirming Healthcare, Jessica Matsuda
Washington and Lee Law Review
State legislatures across the nation are continually targeting the rights of transgender individuals with a variety of laws affecting everything from bathrooms to medical care. One particularly invasive type of legislation, the gender-affirming healthcare ban, seeks to prohibit all forms of healthcare that align a person’s physical traits with their gender identity for individuals under eighteen. Bans like this severely impede the treatment necessary for transgender youth suffering from gender dysphoria, which carries serious physical consequences and sometimes fatal psychological repercussions. As legislative sessions pass, more and more states are introducing and actually enacting these bans
Striking down these bans …
Creativity Without Ip? Vindication And Challenges In The Video Game Industry, Bj Ard
Creativity Without Ip? Vindication And Challenges In The Video Game Industry, Bj Ard
Washington and Lee Law Review
This Article intervenes in the longstanding debate over whether creative production is possible without exhaustive copyright protection. Intellectual property (IP) scholars have identified “negative spaces” like comedy and tattoo art where creativity thrives without IP, but critics dismiss these examples as niche. The video game industry allows for fresh headway. It is now the largest sector in entertainment—with revenues greater than Hollywood, streaming, and music combined—yet IP does not protect key game elements from duplication. Participants navigate this absence using non-IP strategies like those identified in negative-space industries: AAA developers invest in copy-resistant features while indie game developers rely on …
Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.
Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.
Washington and Lee Law Review Online
This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those …
Divorcing Guns: How Family Law Could Change Parental Gun Ownership And Save Kids’ Lives, Marcia A. Zug
Divorcing Guns: How Family Law Could Change Parental Gun Ownership And Save Kids’ Lives, Marcia A. Zug
Washington and Lee Law Review Online
Guns are deadly. They are especially deadly for children yet, currently, parental gun ownership is not a major factor in custody disputes. This needs to change. Making irresponsible gun ownership a routine factor in custody cases could transform parental gun behavior. In other contexts, the potential loss of custody has proven to be an extremely strong deterrent. Moreover, unlike other proposed solutions to gun fatalities, this is a change that can be made right now. Making guns a part of custody disputes does not require the enactment of new legislation or even a judicial determination. By simply raising the issue …
An Administrative Solution To The Student Loan Debt Crisis, Justin C. Van Orsdol
An Administrative Solution To The Student Loan Debt Crisis, Justin C. Van Orsdol
Washington and Lee Law Review Online
To say that the student loan debt crisis is out of control is a massive understatement. Although solutions such as Public Service Loan Forgiveness and the recent temporary payment/interest rate freeze have provided some relief for borrowers, more can be done. Of course, as with any large outlay of taxpayer dollars, opposition is sure to be heated. Given the current political climate, the likelihood of any legislative fixes seems unlikely.
But what if there was an administrative solution that could do more to address this crisis without the cost of the legislative process? This essay proposes such a solution. It …
How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias
How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias
Washington and Lee Law Review Online
In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump …
Virginia Bar Exam, July 2022, Section 2
Virginia Bar Exam, July 2022, Section 2
Virginia Bar Exam Archive
No abstract provided.
Virginia Bar Exam, July 2022, Section 1
Virginia Bar Exam, July 2022, Section 1
Virginia Bar Exam Archive
No abstract provided.
The Three Laws: The Chinese Communist Party Throws Down The Data Regulation Gauntlet, William Chaskes
The Three Laws: The Chinese Communist Party Throws Down The Data Regulation Gauntlet, William Chaskes
Washington and Lee Law Review
Criticism of the Chinese Communist Party (CCP) runs a wide gamut. Accusations of human rights abuses, intellectual property theft, authoritarian domestic policies, disrespecting sovereign borders, and propaganda campaigns all have one common factor: the CCP’s desire to control information. Controlling information means controlling data. Lurking beneath the People’s Republic of China’s (PRC) tumultuous relationship with the rest of the world is the fight between nations to control their citizens’ data while also keeping it out of the hands of adversaries. The CCP’s Three Laws are its newest weapon in this data war.
One byproduct of the CCP’s emphasis on controlling …
Mass Arbitration 2.0, Andrew B. Nissensohn
Mass Arbitration 2.0, Andrew B. Nissensohn
Washington and Lee Law Review
Over the past four decades, corporate interests, in concert with the Supreme Court, have surgically dismantled the American civil litigation system. Enacted nearly a century ago, the Federal Arbitration Act (FAA) was once a procedural law mandating that federal courts enforce arbitration agreements between sophisticated parties with equal bargaining power. Through death by a thousand cuts, corporate interests shielded themselves from nearly all methods of en masse dispute resolution. These interests weaponized the FAA into a “one size fits all” means to compel potential litigants with unequal bargaining power into arbitration. The so-called “Arbitration Revolution” is the subject of much …
(G)Local Intersectionality, Martha F. Davis
(G)Local Intersectionality, Martha F. Davis
Washington and Lee Law Review
Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of …
Sexual Violence, Intangible Harm, And The Promise Of Transformative Remedies, Jill C. Engle
Sexual Violence, Intangible Harm, And The Promise Of Transformative Remedies, Jill C. Engle
Washington and Lee Law Review
This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused …