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Washington and Lee Law Review

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Washington and Lee Law Review

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Procedural Drift: How Judicial Restraint Enables Legalized Backsliding, Dessie Otachliska

Washington and Lee Law Review

This Article introduces Procedural Drift, a new theory of constitutional erosion in which legality itself enables democratic decline. Legal forms remain intact, but their constraining force quietly recedes as procedural doctrines withdraw courts from sites of contestation. Executive power expands not by defying law, but by strategically complying with it—exploiting judicial restraint to evade review.

Building on Bruce Ackerman’s theory of constitutional moments and Kim Lane Scheppele’s concept of autocratic legalism, this Article develops a U.S.-specific account of democratic backsliding that is lawful, gradual, and institutionally embedded. It traces how judicial restraint—operating amid partisan alignment and epistemic fragmentation—erodes legal checks …

Reimagining International Investment Law For The Age Of Minerals, Taylor Nchako

Washington and Lee Law Review

New technologies––from artificial intelligence (AI) and electric vehicles to medical devices and consumer electronics––demand an ever-increasing amount of minerals like lithium, cobalt, and copper. The United States requires these aptly named “critical” minerals to develop AI infrastructure, advance the clean energy transition, and remain economically competitive. As technology continues to advance at an astonishing pace, the U.S. has grown increasingly interested in securing critical minerals from sources in Africa. To obtain critical minerals, the U.S. must utilize investment treaties in its business dealings with African countries. At the same time, international investment law has garnered increased attention due to a …

Fur, Feathers, And Frameworks: The Federal Legal Landscape Of Animal Welfare In The United States And Switzerland, Michael Melch

Washington and Lee Law Review

The United States relies on a predominantly utilitarian, welfarist framework that regulates certain uses of animals while preserving their status as property. Switzerland embeds the concept of animal dignity in its constitutional and statutory law, formally recognizing animals as beings with intrinsic worth. This foundational divergence produces significant doctrinal and practical differences, including the breadth of species covered, the structure of legal obligations, and the normative goals of regulation.

This Note provides a comparative analysis of animal welfare laws in the United States and Switzerland, exploring their philosophical, legal, and practical dimensions. It examines the U.S.’s utilitarian approach, exemplified by …

Litigating The Youth Mental Health Crisis: Mechanisms To Regulate Addictive Social Media Design, Talia Elliott

Washington and Lee Law Review

While social media offers real benefits to users, such as providing access to information and facilitating the free exchange of ideas, excessive social media use is associated with increases in anxiety, depression, and other serious mental-health harms. Social media platforms are designed to maximize profit by capturing user attention, resulting in interfaces that are dangerously addictive and prone to exposing users to harmful content. Currently, social media users alone bear the burden of navigating the dangers of social media. This is untenable. Young users, whose less developed brains leave them more vulnerable to addictive design features, find self-regulation especially challenging. …

Pragmatic Conceptualism, Public Nuisance, And The American Opioid Litigation, Benjamin C. Zipursky

Washington and Lee Law Review

Public nuisance as a part of American tort law has been as high profile in the first decades of this century as products liability law was in the last several decades of the twentieth century. The American opioid litigation over the past decades is a spectacular example, filling headlines and generating billions of dollars of settlements. There is a plausible argument, however, that the doctrinal core of the opioid litigation is meritless because there simply is no “interference with public right” as required by public nuisance law. The first aim of this Article is to articulate and assess that argument. …

Equality Before Tax Law, Charles Delmotte

Washington and Lee Law Review

The income tax code is riddled with exceptions—exclusions, rate preferences, and deductions—that reduce tax burdens for dominant majorities and powerful interest groups. These carveouts now amount to an astonishing $1.9 trillion, equivalent to 75 percent of all federal income tax revenue. By granting policymakers discretion to allocate tax exceptions, the tax system not only invites capture but also the weaponization of taxation against disfavored economic and political groups. Yet despite the central role of these exceptions, tax scholars have not articulated a principle requiring taxation according to general rules.

This Article bridges philosophy with insights from political economy to reveal …

Voices From Beyond The Grave: Protecting The Audio Of Murder Victims Through (Intellectual) Property Law, Alexandra M. Hudson

Washington and Lee Law Review

For most, the audio of a deceased loved one is a treasured keepsake. For the families of violent crime victims, it can be a harrowing reminder of their loved one’s death. And it can also be a source of content for true crime podcasters.

When a person dies from a violent crime and their killer is prosecuted, the audio associated with the crime (body camera footage, 911 calls, surveillance footage, etc.) frequently becomes public record. Public record laws vary greatly across the United States but typically err toward disclosure to promote government transparency. Broad public record laws benefit the public …

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Washington and Lee Law Review

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Washington and Lee Law Review

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Social Murder, Marissa Jackson Sow

Washington and Lee Law Review

In recent years, variations on Engels’s concept of social murder have been adopted into British legal and sociological lexicons to conceptualize the state’s reckless sacrifices of its most vulnerable populations—people deemed socially undesirable, legally undeserving, and economically redundant. The state allows these populations to die a multitude of deaths by failing to protect them; notably, victims of social murder are relegated to society’s underclasses, if not completely excluded from the body politic, before they are physically eliminated. Social murder is neither genocide nor ethnic cleansing; instead, social murder captures the elimination of groups of people via atrocious events for which …

1981, Carliss Chatman

Washington and Lee Law Review

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in …

Sanctioning Lawyer-Criminals, Jon J. Lee

Washington and Lee Law Review

Until now there has been relatively little consideration given to disciplinary agencies’ sanctioning of lawyers who commit or are convicted of crimes, so called “lawyer-criminals.” This is likely because most assume that these offenders make up a tiny percentage of disciplinary cases. It also may explain why jurisdictions continue to employ disparate approaches regarding what types of criminal conduct warrant professional intervention, the appropriate sanctions to impose on lawyer-criminals, and whether lawyers convicted of certain offenses should be automatically excluded from practice.

This Article makes three primary contributions to the discourse on reforming professional lawyer regulation to protect the public …

Arbitrary Consent To Arbitration, Charity J. Fort

Washington and Lee Law Review

In the one-hundred-year period since the enactment of the Federal Arbitration Act of 1925 (the Act), arbitration in the U.S. has become a battlefield embroiled in a multitude of contract law doctrines and competing arbitration jurisprudence concerning what rights can be contracted away. This battlefield has become particularly grisly with regards to the increased use of arbitration clauses in contracts with adhesive qualities between business entities and consumers. This Article seeks to confront and lay the foundations for resolving a concern raised by many arbitration scholars: scholars who argue that the use of arbitration clauses in contracts of adhesion is …

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Washington and Lee Law Review

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Drug War Repair Guarantees, Amber Baylor

Washington and Lee Law Review

Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.

Legalization cannot deliver on its reparative terms without guarantees. …

Religious Minorities And Secular Rights, Joshua C. Mcdaniel

Washington and Lee Law Review

When religious claimants sue to protect their ability to practice their faith, they often invoke legal guarantees that specifically protect religious exercise. Yet historically—and still today—they also rely on secular guarantees like freedom of speech or equal protection. And their victories on these grounds set precedents not just for believers but for everyone. As a result, many rights we now take for granted stem from religious minorities pressing for the ability to preach, proselytize, and publish their religious views. No account of free speech law would be complete, for instance, without considering the pathbreaking decisions won by Jehovah’s Witnesses.

Although …

Comment On “Voices From Beyond The Grave: Protecting The Audio Of Murder Victims Through (Intellectual) Property Law” By Alexandra M. Hudson, Christopher B. Seaman

Washington and Lee Law Review

Alex’s Note correctly identifies the tension between two important, competing values when it comes to how the law should deal with the sound recordings of murder victims captured in a public record, such as a 911 call or body camera footage. The first value is government transparency, including disclosure of public records through federal and state Freedom of Information Acts (FOIAs). As the Supreme Court has explained, “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption, and to hold the governors accountable to the governed.” …

Education As A Right, Homelessness As A Crisis: The Displaced Futures Of American Homeless Youth, Tina Pham

Washington and Lee Law Review

Homelessness in the United States has been a humanitarian crisis affecting youth as one of its most vulnerable populations. Education is one of the few opportunities to break through this cycle of poverty. Recognizing the gap in education for homeless students and other students, Congress enacted the McKinney-Vento Act, which guarantees homeless youth educational rights to access public education. Following the Supreme Court’s decision in Grants Pass v. Johnson, however, the rise of criminalizing policies, such as encampment sweeps and anticamping ordinances, threatens the success of the Act. These policies not only destabilize families, but they also leave homeless youth …

A Tribute To Professor Brian C. Murchison, Mary Z. Natkin, Adedayo (Dayo) Abah, Richard K. Welch, C. Elizabeth Belmont, Melanie D. Wilson, Brant J. Hellwig, Barry Sullivan, Patrick Darby, John M. Perryman, Kelly L. Faglioni, Nathan Heastie, Brandon Hasbrouck

Washington and Lee Law Review

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Washington and Lee Law Review

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Medicaid’S Broken Promise To Children, Jerron R. Wheeler

Washington and Lee Law Review

In the United States, poor children’s access to necessary healthcare is determined more by geography than medical need. This variation is not the result of thoughtful local tailoring but of excessive state autonomy and passive federal oversight. The result is a fragmented and unequal system that obscures accountability and fails the Nation’s most vulnerable children.

Building on scholarship showing how decentralized implementation of federal social programs can erode America’s social safety net, this Article examines how one of Congress’s most ambitious entitlements for children—Medicaid’s Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit has been quietly undermined. In light of …

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Washington and Lee Law Review

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Fifty Ways To Leave Your Lover: Using State Constitutions To Escape The Dead Hand Of Article V, Meg Penrose

Washington and Lee Law Review

Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.

Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can …

Long Covid, Silent Suffering, And Work, Joseph A. Seiner

Washington and Lee Law Review

Though most recover from COVID quickly, countless others remain chronically ill. Five years after the start of the pandemic, Long COVID continues to harm the economy, forcing thousands from employment at a time when businesses are struggling to find workers. With over thirty million individuals in the United States having contracted Long COVID, the illness cannot be dismissed as merely malingering or psychosomatic in nature.

With no diagnostic test for identifying Long COVID, skepticism about the illness persists. Many are scared to acknowledge their affliction with the disease and fear being stigmatized. Those who suffer silently struggle to perform their …

Against A Medical Exception To Equal Protection, Govind Persad

Washington and Lee Law Review

Government regulations of medicine sometimes treat patients differently based on their race or sex. Does heightened scrutiny apply to such regulations—as is usual when law treats someone differently based on a protected characteristic? Or is there a medical exception to equal protection?

Recently, in United States v. Skrmetti, the Supreme Court upheld a law that restricted access to medical treatments for transgender minors. Though its holding did not rely on medical exceptionalism, its discussion reinvigorated interest in a “medical exception” to equal protection: that medical decisions are exempt from the searching review applied when governmental decisions consider protected characteristics.

For …

Much Ado About Critical Race Theory, Matthew Patrick Shaw

Washington and Lee Law Review

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory

(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither …

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Washington and Lee Law Review

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Washington and Lee Law Review

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