Law Commons^™

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Blood In The Water: Why The First Step Act Of 2018 Fails Those Sentenced Under The Maritime Drug Law Enforcement Act, Lauren R. Robertson

Washington and Lee Law Review

For some, the open ocean is prison. The Maritime Drug Law Enforcement Act (MDLEA) prohibits individuals from knowingly or intentionally distributing a controlled substance or possessing it with the intent to distribute. Empowered by the MDLEA, the United States Coast Guard arrests and detains foreign nationals hundreds of miles outside of U.S. territorial waters. After months shackled to Coast Guard ships, these individuals face the harsh reality of American mandatory minimum drug sentencing, judged by the kilograms of drugs on their vessels. But the MDLEA conflates kilograms with culpability. More often than not, those sentenced are fishermen-turned-smugglers due to financial …

Rationing And Disability: The Civil Rights And Wrongs Of State Triage Protocols, Deborah Hellman, Kate M. Nicholson

Washington and Lee Law Review

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused …

The Necessity In Antitrust Law, Gregory Day

Washington and Lee Law Review

Antitrust rarely, if ever, gives primacy to a dispute’s subject matter. For instance, exclusionary conduct that raises the price of a lifesaving drug receives the same analysis as a restraint of baseball cards. Since antitrust’s purpose is to promote consumer welfare, the equal treatment of important and mundane goods might appear perplexing. After all, competition to produce affordable foods, medicines, and other necessities would seem to foster consumer welfare more than inane products do.

In fact, defendants generally win antitrust lawsuits even when monopolizing necessities because the primary method of antitrust review is notably deferential to defendants. To explain this …

The Public Health Turn In Reproductive Rights, Rachel Rebouché

Washington and Lee Law Review

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects. …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Washington and Lee Law Review

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

Fighting A New Wave Of Voter Suppression: Securing College Students’ Right To Vote Through The Twenty-Sixth Amendment’S Enforcement Clause, Ryan D'Ercole

Washington and Lee Law Review

Throughout the 1960s, young people protested for racial and LGBTQ+ equality, women’s rights, and an end to the Vietnam war. In the process, they earned the most fundamental right— the right to vote.

Fifty years ago, in the summer of 1971, the Twenty-Sixth Amendment was ratified. In addition to lowering the voting age to eighteen, the Twenty-Sixth Amendment prescribed that the right to vote “shall not be denied or abridged by the United States or by any State on account of age.” But in the fifty years since ratification, states have continued to enact laws that abridge the right to …

Deportation And Depravity: Does Failure To Register As A Sex Offender Involve Moral Turpitude?, Rosa Nielsen

Washington and Lee Law Review

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes …

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Foreword: Humanity, Dignity, And Grace, Brant J. Hellwig

Washington and Lee Law Review

Commentary from Dean Brant Hellwig of the Washington and Lee University School of Law on the 2020-2021 Annual Lara D. Gass Symposium celebrating Hon. Roger L. Gregory, Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, and this special issue of the Law Review featuring scholarship relating to that event.

When Statutory Interpretation Becomes Precedent: Why Individual Rights Advocates Shouldn’T Be So Quick To Praise Bostock, Elena Schiefele

Washington and Lee Law Review

Justice Neil Gorsuch’s approach to textualism, which this Note will call “muscular textualism,” is unique. Most notably exemplified in Bostock v. Clayton County, muscular textualism is marked by its rigorous adherence to what Justice Gorsuch perceives to be the “plain language” of the text. Because Justice Gorsuch’s opinions exemplify muscular textualism in a structured and consistent manner, his appointment to the Supreme Court provides the forum from which he can influence the decision-making process of other members of the judiciary when they seek guidance from Supreme Court precedent. Accordingly, it is important for both advocates and judges to understand …

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Which America?: Judge Roger L. Gregory And The Tradition Of African-American Political Thought, Daniel Fryer

Washington and Lee Law Review

In this Article, written in connection with a symposium honoring Chief Judge Roger L. Gregory’s twenty years on the bench, I place Judge Gregory’s jurisprudence within the tradition of African-American political thought. I suggest that, at bottom, Judge Gregory has a leveling-up jurisprudence that seeks to interpret the Constitution in a way that ensures the least well-off in society are granted the same rights as the most privileged. This brand of democratic theorizing approximates a mainstream position by Black political theorists optimistically seeking to have the least well-off integrated into a fully equal society. By comparing and contrasting his work …

Leaving Judicial Review With The Judiciary: The Misplaced Role Of Agency Deference In Tunney Act Public Interest Review, Alexandra P. Clark

Washington and Lee Law Review

This Note explores the Tunney Act’s mechanism for judicial review of consent decrees negotiated by the U.S. Department of Justice and merging parties to remedy alleged antitrust issues. The Tunney Act requires that the reviewing court only approve a consent decree if it is “in the public interest.” This Note argues, however, that courts have improperly circumscribed their review by affording too much deference to the Department of Justice when reviewing these consent decrees. This deference subverts Congress’s intent in imposing judicial review and allows the government and merging parties the opportunity to skirt meaningful judicial review. As such, this …

The Surprising Significance Of De Minimis Tax Rules, Leigh Osofsky, Kathleen Delaney Thomas

Washington and Lee Law Review

De minimis tax rules—rules that eliminate tax burdens for low-income taxpayers or low-dollar transactions—abound in the tax law. Despite the prevalence of such rules, legal scholarship has treated them as—well—de minimis, or as mere rounding errors that do not merit sustained attention. This perspective is understandable. If de minimis rules address insignificant taxpayers or tax liabilities, aren’t the rules themselves likely to be insignificant?

Recent tax law developments have revealed that this conception of de minimis tax rules is deeply misguided. Major allocations of tax law liability, as well as accompanying questions about the fairness, efficiency, and administrability of the …

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Masthead

Washington and Lee Law Review

No abstract provided.

Tribute To Professor David Bruck, Cristina Becker, C. Elizabeth Belmont, Johanna Bond, J.D. King, Zoe Bruck, Judy Clarke, Dawn M. Davison, Bernadette M. Donovan, Matthew L. Engle, William S. Geimer, Dan Goldman, Brandon Hasbrouck, Laura G. Hastay, Alexandra L. Klein, Emily Kuchar, Charu Kulkarni, Kristina Leslie, Kamyle Li, Kevin Mcnally, Maisie Osteen, Jonathan Shapiro, Scott E. Sundby

Washington and Lee Law Review

A tribute to Professor David I. Bruck, who served on the faculty of the Washington and Lee University School of Law from 2004 to 2020. Bruck directed W&L's death penalty defense clinic, the Virginia Capital Case Clearinghouse, also known as "VC3". He became Professor of Law, Emeritus in 2020.

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Washington and Lee Law Review

This Article analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme Court …

The “P” Isn’T For Privacy: The Conflict Between Bankruptcy Rules And Hipaa Compliance, Sophie R. Rogers Churchill

Washington and Lee Law Review

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) included a now-ubiquitous provision designed to protect the privacy of patients’ protected health information. The provision prohibits covered entities, including health care providers and their agents, from disclosing any demographic information that may identify a patient and that relates to that patient’s medical care. The provision is broad and can include such simple information as which doctor a patient consults or the date of a patient’s consultation with a physician.

Unfortunately, such protections become impracticable in the bankruptcy setting. When a health care provider files bankruptcy, it files a host …

Pretrial Custody And Miranda, Kit Kinports

Washington and Lee Law Review

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda—in Shatzer’s case while he was living among the general prison population and in Fields’s case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown. This Article maintains that …

Civil Rights Equity: An Introduction To A Theory Of What Civil Rights Has Become, John Valery White

Washington and Lee Law Review

This Article argues that civil rights law is better understood as civil rights equity. It contends that the four-decade-long project of restricting civil rights litigation has shaped civil rights jurisprudence into a contemporary version of traditional equity. For years commentators have noted the low success rates of civil rights suits and debated the propriety of increasingly restrictive procedural and substantive doctrines. Activists have lost faith in civil rights litigation as an effective tool for social change, instead seeking change in administrative forums, or by asserting political pressure through social media and activism to compel policy change. As for civil rights …

The Sexual Harassment Loophole, Keith Cunningham-Parmeter

Washington and Lee Law Review

Employers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses …

“No Earlier Confession To Repeat”: Seibert, Dixon, And Question-First Interrogations, Lee S. Brett

Washington and Lee Law Review

The Supreme Court’s 2004 decision in Missouri v. Seibert forbade the use of so-called question-first interrogations. In a question-first interrogation, police interrogate suspects without giving Miranda warnings. Once the suspect makes incriminating statements, the police give the warnings and induce the suspect to repeat their earlier admissions.

Lower courts are increasingly interpreting a per curiam Supreme Court case, Bobby v. Dixon, to significantly limit the scope and applicability of Seibert. These courts claim that postwarning statements need only be suppressed under Seibert when there is an “earlier confession to repeat.” In this Note, I argue that this reading …