Law Commons^™

Does The Death Penalty Still Matter: Reflections Of A Death Row Lawyer, David I. Bruck

Washington and Lee Journal of Civil Rights and Social Justice

This talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter?,” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School.

Masthead

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Religious Ministers And The Scope Of Their Rights To Non-Discrimination In Employment, R. George Wright

Washington and Lee Journal of Civil Rights and Social Justice

The First Amendment is currently thought to bar ministerial employees from any recourse against their religious employer under a wide variety of non-discrimination statutes and other forms of legal protection. The typical critique of this state of affairs seeks to narrow the class of persons who count as ministerial employees. This paper focuses instead on an important, and peculiar, aspect of the ministerial exception doctrine. At present, the law generally prohibits any recovery by ministerial employees for employment discrimination by their religious employer even where the employer’s reasons for the discrimination have nothing to do with any religious doctrine, belief, …

Being In The Room Where It Happens: Celebrating Virginia’S First Female Law Clerks, Anne Rodgers, Todd C. Peppers

Washington and Lee Journal of Civil Rights and Social Justice

The first female law clerk was hired in 1944. However, the entry of women into the law clerk profession was met with sexism. The accomplishments of the first few female law clerks also received little attention. This article seeks to rectify this historical injustice by highlighting the accomplishments of Virginia’s first female law clerks: Doris Bray, Jane Caster Sweeney, and Penelope Dalton Coffman. Doris Bray clerked for Fourth Circuit Court of Appeals Judge J. Spencer Bell in 1967. Jane Caster Sweeney clerked for Federal District Court Judge Oren Lewis from 1960 to 1962. Penelope Dalton Coffman clerked for Virginia Supreme …

Transforming The Future Of Work By Embracing Corporate Social Justice, Andrea Giampetro-Meyer

Washington and Lee Journal of Civil Rights and Social Justice

Professionals from Generations Y (millennials) and Z (Gen Z or zoomers) expect their employers to embrace diversity, equity and inclusion (DEI). They want to work for companies that support individuals of various races, ethnicities, religions, abilities, genders, and sexual orientations. Professionals from these generations are seeking employers that have created a diverse workforce, clear promotion track, and a commitment to dismantling systemic racism. Companies that want to attract top talent are making DEI a priority. They are also implementing action plans to demonstrate their serious commitment to DEI because millennials and zoomers are quick to recognize and criticize performative approaches. …

Bailing On Cash Bail: A Proposal To Restore Indigent Defendants’ Right To Due Process And Innocence Until Proven Guilty, Cydney Clark

Washington and Lee Journal of Civil Rights and Social Justice

The practice of cash bail in the United States is changing. For the past few decades, the cash bail system is abandoning pretrial release and shifting the burden to the defendant thereby abandoning innocence until proven guilty. Bail hearings are increasingly less individualized and discriminatory because of risk assessment tools and judicial discretion without requiring justification, leading to indigent defendants facing unprecedented detainment solely for not being able to afford bail, and thus, violating due process of law. This Note focuses on two 2021 decisions: the California Supreme Court’s decision in In re Humphrey, ruling to partially maintain cash bail, …

Do Not Touch My Data: Exploring A Disclosure-Based Framework To Address Data Access, Francis Morency

Washington and Lee Journal of Civil Rights and Social Justice

Companies have too much control over people’s information. In the data marketplace, companies package and sell individuals’ data, and these individuals have little to no bargaining power over the process. Companies may freely buy and sell people’s data in the private sector for targeted marketing and behavior manipulation. In the justice system, an unchecked data marketplace leaves black and brown communities vulnerable to serious data access issues caused by predictive sentencing, for example. Risk assessment algorithms in predictive sentencing rely on data on individuals and run all relevant data points to provide the likelihood that a defendant will recidivate low …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

Removing White Hoods From The Blue Line: A Legislative Solution To White Supremacy In Law Enforcement, Hope Elizabeth Barnes

Washington and Lee Journal of Civil Rights and Social Justice

On May 25, 2020, George Floyd took his final breaths. His death at the hands of multiple Minneapolis police officers was recorded by witnesses and viewed by millions. The public response to Floyd’s death was immediate and powerful. Americans were demanding change on a greater scale than ever before. The problem with policing is not Derek Chauvin, or the Minneapolis Police Department, but rather with the very institution. White supremacy is alive and well in American policing. This Note begins by examining the historic connection between white supremacist groups and law enforcement agencies. This Note then evaluates existing standards of …

Changing The Game: The Emergence Of Nil Contracts In Collegiate Athletics And The Continued Efficacy Of Title Ix, Leeden Rukstalis

Washington and Lee Journal of Civil Rights and Social Justice

On June 30, 2021, the National Collegiate Athletic Association (“NCAA”) suspended a 115-year prohibition on college athletes’ ability to profit from the use of their names, images, and likenesses (“NIL”). Historically, NCAA eligibility was determined by an athlete’s amateur status. Student athletes forewent compensation to preserve a line between professional and college sports. Today, the NCAA’s novel NIL policy recognizes an athlete’s right to publicity and allows them to share in the billions of dollars it generates every year. According to estimates, college athletes earned $917 million in the first year of NIL activity. By 2023, the NIL market is …

Property And The Right To Enter, Bethany R. Berger

Washington and Lee Law Review

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, tradition, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. …

Learning From Mistakes, Irene Oritseweyinmi Joe

Washington and Lee Law Review

Much of the attention following the reversal of a defendant’s wrongful conviction focuses on the role the police or the prosecutor played in perpetuating the injustice. To the extent that the public defender institution’s role is considered, it is often limited to its failure to provide effective assistance of counsel. This Article challenges the conventional wisdom that the public defender institution’s role in addressing a wrongful conviction is limited to ineffective assistance of counsel claims and ends once a wrongful conviction is reversed. At minimum, the legal profession’s mandate for competent representation requires public defenders, and the institutions that house …

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Abortion, The Underground Railroad, And Evidentiary Privilege, Tom Lininger

Washington and Lee Law Review

Building on my recent article in the Minnesota Law Review proposing reforms of evidentiary privilege law, this Article focuses on the unique context of communication about abortion. There is an urgent need to protect such communication in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to recriminalize abortion. Now abortion seekers, providers, and third parties who aid and abet abortion could face significant exposure to both criminal penalties and civil suits in many states. Those states are attempting to extend the reach of their bans by sanctioning out-of-state travel and …

The Free Exercise Of Copyright Behind Bars, Viva R. Moffat

Washington and Lee Law Review

People in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should.

Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both …

Arbitration And Federal Reform: Recalibrating The Separation Of Powers Between Congress And The Court, Larry J. Pittman

Washington and Lee Law Review

In 1925, Congress, to provide for the enforcement of certain arbitration agreements, enacted the Federal Arbitration Act (“FAA”) as a procedural law to be applicable only in federal courts. However, the United States Supreme Court, seemingly for the purpose of reducing federal courts’ caseloads, co-opted the FAA by disregarding Congress’s intent that the FAA be applicable only in federal courts. And in furtherance of its own Court-created “federal policy in favor of arbitration,” the Court created precedents that limit state regulation of arbitration agreements, including that states cannot exempt disputes from forced or mandatory arbitration agreements or otherwise regulate the …

Prosecuting The Mob: Using Rico To Create A Domestic Extremism Statute, Samuel D. Romano

Washington and Lee Law Review

In 2021, Secretary of Homeland Security Alejandro Mayorkas asserted that “[d]omestic violent extremism is the greatest terrorist-related threat” facing the United States. Although domestic extremism is often characterized as a lone wolf threat, it is frequently spurred on by white supremacist and neo-Nazi organizations that use the internet to radicalize their members and then avoid accountability by hiding behind constitutional protections—a strategy called “leaderless resistance.” This strategy results in devastating consequences. While the number of hate groups and hate crimes in the United States have risen to record highs, constitutional protections prevent domestic extremist organizations from being treated the same …

Reining In The “Third Path”: Rethinking The War Powers Resolution And Private Security Contractors, Brian T. Warren

Washington and Lee Law Review

From the American Revolution to the War in Afghanistan, the United States has hired private contractors to perform a myriad of tasks, from feeding the troops to researching hypersonic missile defense systems. Following the collapse of the Soviet Union, however, the nature of work performed by these contractors began to shift. No longer were contractors relegated solely to unarmed tasks. From the jungles of Colombia to the deserts of Iraq, armed contractors—known as Private Security Contractors (PSCs)—have guarded American military bases, protected heads of state, assaulted enemy compounds, and more.

Using PSCs is not without risk. Incidents like the Nisour …

Tribute To Professor Joan Shaughnessy, Alan M. Trammell, Joan M. Shaughnessy, Mary Z. Natkin, Brian C. Murchison, Mark H. Grunewald, Barry Sullivan, Michelle L. Drumbl

Washington and Lee Law Review

A tribute to Professor Joan Shaughnessy, who served on the faculty of the Washington and Lee University School of Law from 1983 to 2022. A recognized scholar and teacher in areas of civil procedure, federal courts, evidence, family law, and poverty law, Shaun was appointed as W&L's inaugural Roger D. Groot Professor of Law in 2012.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Federal Bureaucratic Studies, Jesse M. Cross

Washington and Lee Law Review

A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.

To begin that cross-disciplinary conversation, this Article turns to five themes in the …

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Washington and Lee Law Review

No abstract provided.

Fake News And The Tax Law, Kathleen Delaney Thomas, Erin Scharff

Washington and Lee Law Review

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. …

Exams In The Time Of Chatgpt, Margaret Ryznar

Washington and Lee Law Review Online

Invaluable guidance has emerged regarding online teaching in recent years, but less so concerning online and take-home final exams. This article offers various methods to administer such exams while maintaining their integrity—after asking artificial intelligence writing tool ChatGPT for its views on the matter. The sophisticated response of the chatbot, which students can use in their written work, only raises the stakes of figuring out how to administer exams fairly.

Silencing Students: How Courts Have Failed To Protect Professional Students’ First Amendment Speech Rights, Shanelle Doher

Washington and Lee Law Review Online

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 …

Zooming In: Analyzing Annual Meeting Format Changes Amidst A Global Pandemic, Mark T. Wilhelm, Danielle Clifford

Washington and Lee Law Review Online

Beginning in March of 2020, public companies in the United States were forced to take unprecedented measures to observe corporate formalities while following the government-mandated health and safety measures resulting from the COVID-19 pandemic. Those measures made in-person activities and meetings either incredibly challenging or, in certain jurisdictions, illegal. Because “proxy season,” the time when public companies typically hold their annual meetings of stockholders, followed shortly after the mass implementation of COVID-19 lockdowns and quarantines, public companies that had historically held these meetings in-person were left scrambling to find an alternative means to meet. Nearly overnight, the pandemic caused an …

Virginia Bar Exam, February 2023, Section 2

Virginia Bar Exam Archive

No abstract provided.

Virginia Bar Exam, February 2023, Section 1

Virginia Bar Exam Archive

No abstract provided.

Place-Based Versus Practice-Based Norms For American Lawyers: "It's The End Of The World As We Know It (And I Feel Fine)", James E. Moliterno

Scholarly Articles

This Article acknowledges the growing trend toward practice-based lawyer norms, points out how it allows interaction between the existing place-based norms and the new practice-based norms, and compares this movement with the existing regulatory conditions outside the US. If there is movement from the world as we know it (place-based norms) to a world as it may come to be (practice-based norms), is the change tragic, inevitable, risky, in line with the rest of the global legal profession, or all of the above and more? Specifically, how would such an evolution affect the core duty of lawyer-client confidentiality?

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …