Law Commons^™

Bivens And Beyond: Creating A Meaningful Remedy For Federal Prisoners In A Post-Boule Landscape, Hannah M. Wilk

Washington and Lee Journal of Civil Rights and Social Justice

For nearly 50 years, the Bivens action served as a vehicle to compensate individuals when their constitutional rights had been infringed on by a federal officer. Bivens actions operated as the federal equivalent of Section 1983 claims in state courts against state officers. But in June 2022, with a conservative majority in the U.S. Supreme Court, the Bivens framework was gutted by Egbert v. Boule. Boule held that if a Bivens claim is filed in a context that differs from the three previously accepted contexts (the Fourth, Fifth, and Eighth Amendments), the claim must fail, as Congress is better equipped …

Fitting A Block Into A Sphere Mold: The Inadequacy Of Current Data Privacy Regulations In Protecting Data Privacy Within The Blockchain Space, Jenny Yang

Washington and Lee Journal of Civil Rights and Social Justice

Despite global imposition of data privacy laws and regulations, data privacy is a nonexistent luxury amongst the data-charged world we live in. Data privacy has long been established as a fundamental right. Entities have successfully established robust methodologies around existing data privacy laws and regulations to utilize past consumer behavior to predict, impact and manipulate current and future consumer behaviors. This phenomenon has been commonly coined as “corporate surveillance.” Emerging spaces arising through technological developments have greater access into consumer data to impact economic choices. Specifically, the blockchain space, through its unique open-source and permanent traits, has been able to …

Skirting The Fourth Amendment: How Law Enforcement Agencies Abuse Technology And Constitutional Exceptions To Surveille The Public, Matthew Lloyd

Washington and Lee Journal of Civil Rights and Social Justice

Existing Fourth Amendment law does not protect against law enforcement use of data gathered through the internet either by private companies who actively search their customer’s data and submit evidence of misconduct to law enforcement or from private companies who acquire the data on behalf of law enforcement. In an effort to pursue criminals, courts have permitted Fourth Amendment jurisprudence to develop in a manner that permits sweeping invasions of privacy without any probable cause through the private search doctrine or without any procedural protections through the third-party doctrine. It will require substantial judicial or legislative action to return the …

Standing Up To Bounty Laws: Examining State Standing Jurisprudence And Its Effect On Laws Enforced Through Private Rights Of Action, Olivia A. Luzzio

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Heartbeat Act (SB 8) adopted a unique enforcement scheme that succeeded in circumventing Roe v. Wade’s protection of a woman’s right to abortion before viability. By prohibiting enforcement of the Act by public officials and instead authorizing enforcement solely through civil actions by “any person,” SB 8 effectively ended a women’s right to abortion after a fetal heartbeat is detected. The passage of this law placed the protection of other constitutionally endowed rights in jeopardy and facilitated the passage of similarly constructed legislation, such as California’s Senate Bill 1327, which authorizes “any person” to sue anyone who manufactures …

A Psa On The Csaa: How The Child Soldiers Accountability Act Should Guide The United States’ Approach To Criminalizing The Recruitment Of Minors Into Gangs, Chandler Marshall

Washington and Lee Journal of Civil Rights and Social Justice

The use and recruitment of child soldiers in situations of armed conflict has been widely documented over the past century, discussed in the media and in academia, and condemned by prominent members of the international community. Beginning in the 20th century, international legal frameworks were developed to protect children in vulnerable communities across the globe and punish those responsible for their recruitment in regions of armed conflict. While the international community and the United States have taken great strides to protect children from recruitment and militarization, the United States lacks any effective domestic laws to protect vulnerable children on American …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Civil Means To Criminal Ends, Kathryn Ramsey Mason

Washington and Lee Law Review

The divide between the civil and criminal legal systems is one of the most fundamental distinctions in American law. There are laws, however, that do not fit clearly into either category and the Supreme Court’s jurisprudence on how to categorize these statutes has been murky. Crime-free rental housing ordinances, which encourage or coerce private landlords into evicting tenants for a single incident of criminal activity that does not need to result in a conviction, are an example of the laws that occupy this middle ground. Local legislatures designate these laws as civil statutes and use them as a means to …

Piercing The Procedural Veil Of Qualified Immunity: From The Guardians Of Civil Rights To The Guardians Of States’ Rights, Leo Yu

Washington and Lee Law Review

Scholars have found that, despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This Article is the first to find that, over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This Article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of …

Fda Overreach: Is Your Pet’S Health A “Major Question” To You?, Ross C. Reggio

Washington and Lee Law Review

Pharmacy compounding of drugs for companion animals and humans is as old as time. For hundreds of years, pharmacists created these drugs using active pharmaceutical ingredients, otherwise known as bulk drug substances, to address the medical needs of these patients. Congress recognized this longstanding practice when it enacted the Food, Drug, and Cosmetic Act (“FDCA”), with lawmakers then noting that while pharmacists, physicians, and veterinarians were already highly regulated by the states, mass-producing drug manufacturers were not regulated. The FDCA would regulate such manufacturers.

Thereafter, pharmacy compounding from bulk drug substances continued for decades after the FDCA’s enactment and without …

Restorative Constitutionalism, David E. Landau, Rosalind Dixon

Washington and Lee Law Review

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at …

Disclosure, Greenwashing, And The Future Of Esg Litigation, Barbara Ballan, Jason J. Czarnezki

Washington and Lee Law Review

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how …

Illegal Contracts And Agreements: A New Standard For Prostitution And Marijuana Agreements, Doug Rendleman

Washington and Lee Law Review

Agreements exchanging sex for money and those involving marijuana may encounter illegality defenses in court. Granting a legal remedy for breach of an agreement that exchanges seriously illegal consideration would lower the court’s public standing and endanger its legitimacy. On the other hand, the spectacle of a buyer claiming its own illegality to escape paying its seller troubles courts.

Lord Mansfield stated the illegality defense in Holman v. Johnson: “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Yet he rejected the illegality defense in that case …

Supporting Healthy Futures: Capitalizing On Medicaid’S Epsdt Medical Necessity Standard, Teressa Colhoun

Washington and Lee Law Review

Youth mental health is in crisis. Children report increased rates of suicidal ideology, depression, and anxiety. Diagnosis rates soar. Pediatric mental health care remains difficult to access. When services are accessible, they are costly—often sending families into medical debt.

This Note discusses Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) benefit. Specifically, it studies the EPSDT benefit’s creation, structure, and administration. This Note focuses on the context in which the EPSDT benefit operates, particularly how health care financing models impact benefit administration. It suggests that the EPSDT benefit has the capacity to address crucial gaps in pediatric mental health …

The Wild, Wild West Of Laboratory Developed Tests, John Gilmore

Washington and Lee Law Review Online

Since the 1950’s, scientists have built novel technologies to screen for genetic diseases and other biological irregularities. Recently, researchers have developed a method called “liquid biopsy” (as opposed to a standard tissue biopsy) that uses a liquid sample (e.g., blood) to non‑invasively spot biomarkers indicating different types of cancers in the patient’s body. While the U.S. Food and Drug Administration (FDA) has fully cleared a small number of liquid biopsy tests under its rigorous and expensive review process, most biotech companies have instead followed a less restrictive regulatory path through the Centers for Medicare and Medicaid Services (CMS), which label …

Brief Of Children’S Rights Advocates In Support Of Appellees: Held V. Montana, Asha Brundage-Moore, Wyatt Sassman, Catherine Smith

Scholarly Articles

Amici Curiae are members of the Consortium for the Advancement of Children’s Constitutional Rights and Healthy Mothers, Heathy Babies: The Montana Coalition who are children’s rights advocates and legal scholars. Amici submit this brief to: (1) highlight Montana’s Constitution as a leader in advancing children’s constitutional rights; (2) draw this Court’s attention to the Montana Constitution’s text and history recognizing children’s right to a clean and healthful environment; and (3) explain that a decision not to safeguard children’s right to a clean and healthful environment in reliance on adult-centric analytical missteps advanced by Appellants (and supporting Amici) would deny Montana’s …

Virginia Bar Exam, February 2024, Section 2

Virginia Bar Exam Archive

No abstract provided.

Virginia Bar Exam, February 2024, Section 1

Virginia Bar Exam Archive

No abstract provided.

Till The Rivers All Run Dry: Equal Sovereignty And The Western Water Crisis, Simon Ciccarillo

Washington and Lee Law Review Online

Across the United States, a countless number of people rely on groundwater for basic necessities such as eating, drinking, agriculture, and energy-creation. At the same time, overuse combined with increasingly dry conditions throughout the country, tied to the increasingly unpredictable and devastating impacts of climate change, threaten this fundamental building block of society. Nowhere is this problem more pernicious than the American Southwest. The Colorado River Basin has always been the epicenter of water disputes between communities and states. Bad policies, unhelpful federal actions, and sluggish Supreme Court decisions stop the painful but necessary steps to address the increasingly dire …

Title Theft, Stewart E. Sterk

Washington and Lee Law Review Online

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and …

Tax Enforcement At The Intersection Of Social Welfare And Vulnerable Populations, Michelle Lyon Drumbl

Scholarly Articles

This Essay engages with Professor Bernadette Atuahene’s theory of stategraft in the context of tax administration and the role that the Internal Revenue Service (IRS) plays in implementing certain social welfare benefits, including the Earned Income Tax Credit (EITC). Specifically, it considers whether the IRS’s denials of the EITC to those who might otherwise be eligible and entitled to it constitutes a wrongful taking by the state or a violation of basic human rights. While this Essay concludes that denials of the EITC generally do not fit within Atuahene’s definition of stategraft, it highlights two particularly problematic concerns with modern …

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

‘Resisting’ While Collaboratively Informing In Communist Czechoslovakia, Mark A. Drumbl, Barbora Holá

Scholarly Articles

Informers in the service of state secret police collaborate with authorities and thus contribute to the power of repressive regimes. Through a case-study of Communist Czechoslovakia (1945–1989)—and drawing from secret police archives– this article presents selected stories of informers who in one way or another also ‘resisted’ collaboration with the Czechoslovak State Security (StB). By doing so, we try to further complexify the notions of ’everyday resistance’, on the one hand, and ‘collaboration’ on the other. We demonstrate that resistant acts, similar to collaborative acts, can be apolitically devoid of ideology, highly idiosyncratic, and motivated by private drivers. Informing can …

Crypto-Counterfeiting, Joshua Fairfield

Scholarly Articles

The current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.

The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ …

What Roosevelt Did To Brown V. Board Of Education, Or Race And Court Packing, Jill M. Fraley

Scholarly Articles

Roughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected and previously undocumented cause: President Roosevelt's prior attempt at court packing slowed--even derailed--desegregation.

The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must …

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

Children's Right To Access Potentially Critical Learning: Liberating Youth From Propagation Of Structural Injustice, Melina Constantine Bell

Scholarly Articles

Over the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the …

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Enforcing International Law Against Corporations: A Stakeholder Management Approach, Kishanthi Parella

Scholarly Articles

There is an important but oft neglected relationship between the problems of corporate governance and international law. Corporate managers grapple with how to respond to society's demands that their enterprises do better when it comes to protecting people and the planet. These demands take many forms, including increased pressure for “sustainability” and “environmental, social, and governance” (“ESG”) measures. These demands are made in response to the economic, social, environmental, and political crises facing our world and a recognition of the responsibility of corporations and other business actors to contribute to their resolution. What is often unrecognized is that many of …

How A “Superstar” Ceo Exposes The Necessity For Third Party D&O Insurance, Angela N. Aneiros, Karen Woody

Scholarly Articles

he influence that “superstar” CEOs have over a company’s board of directors can be alarming. Among other things, Elon’s ability to skirt personal liability for seemingly obvious breaches of duty has raised concerns within the realm of corporate governance and corporate regulation. While much has been written on Elon’s influence on Tesla’s board of directors, one area of the law that often gets overlooked that has exacerbated Elon’s corporate governance issues, is that of directors and officers (D&O) liability insurance. While personally insuring board members seems like a very "Elon" move, it could have broader implications beyond Elon. Are “superstar” …