Samuel W. Calhoun, Citation: Samuel W. Calhoun, If Separation of Church and State Doesn’t Demand Separating Religion from Politics, Does Christian Doctrine Require It?, 74 Wash. & Lee L. Rev. Online 565 (2018).
This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that […]
Kristine L. Bowman, Citation: 75 Wash. & Lee L. Rev. Online 61 (2018).
Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first […]
Margaret Ryznar, Citation: 75 Wash. & Lee L. Rev. Online 53 (2018).
Recently, legislative efforts have taken aim at sexual harassment in the workplace. Among these may be a surprising but effective approach—disallowing tax deductions for sexual harassment settlements subject to non-disclosure agreements. This Essay analyzes such a 2017 tax reform provision.
Ian Huyett, Citation: Ian Huyett, Church History, Liberty, and Political Morality: A Response to Professor Calhoun, 74 Wash. & Lee L. Rev. Online 546 (2018).
In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that […]
Christopher W. Schmidt , Citation: 75 Wash. & Lee L. Rev. Online 33 (2018).
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth […]
David M. Smolin, Citation: David M. Smolin, America's Creed: The Inevitable, Sometimes Dangerous, Mixing of Religion and Politics, 74 Wash. & Lee L. Rev. Online 512 (2018).
Political and philosophical theorists have often advocated for the exclusion of some or all religious perspectives from full participation in politics. Such approaches create criteria—such as public accessibility, public reason, or secular rationale—to legitimate such exclusion. During the 1990s I argued, as an evangelical Christian, against such exclusionary theories, defending the rights to full and […]
Wayne R. Barnes, Citation: Wayne R. Barnes, The Paradox of Christian-Based Political Advocacy: A Reply to Professor Calhoun, 74 Wash. & Lee L. Rev. Online 489 (2018).
Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the […]
Julian Redmond Murphy , Citation: 75 Wash. & Lee L. Rev. Online 1 (2018).
In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices […]
Samuel W. Calhoun, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, 74 Wash. & Lee L. Rev. Online 459 (2018)
This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed […]
Rene Reyes, Citation: 74 Wash. & Lee L. Rev. Online 450 (2018)
The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. […]
Darrell A. H. Miller, Citation: 74 Wash. & Lee L. Rev. Online 438 (2018)
William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts […]
Eve Hanan, Citation: 74 Wash. & Lee L. Rev. Online 420 (2018)
Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In […]
Carl Tobias, Citation: 74 Wash. & Lee L. Rev. Online 400 (2018)
President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority […]
William D. Araiza, Citation: 74 Wash. & Lee L. Rev. Online 383 (2018)
This Response considers Evan Zoldan’s argument, set forth in his recently-published Article, that one can find a coherent principle underlying the vexing case of United States v. Klein in the idea that government is prohibited from what Zoldan calls “self-dealing.” The promise is a seductive one: Klein, and in particular its language prohibiting Congress from […]
Christopher C. Brewer, Citation: 74 Wash. & Lee L. Rev. Online 337 (2018)
Martha G. Vazquez, Citation: 74 Wash. & Lee L. Rev. Online 281 (2018)
Thomas M. DiBiagio, Citation: 74 Wash. & Lee L. Rev. Online 256 (2018)
A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate […]
Benjamin M. Flowers, Citation: 74 Wash. & Lee L. Rev. Online 248 (2018)
The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful […]
Wendy Gerwick Couture, Citation: 74 Wash. & Lee L. Rev. Online 234 (2018)
In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons, […]
Michael F. Dearington, Citation: 74 Wash. & Lee L. Rev. Online 204 (2017)
Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort […]
Matthew C. Donahue, Citation: 74 Wash. & Lee L. Rev. Online 146 (2017)
Peter T. Thomas, Citation: 74 Wash. & Lee L. Rev. Online 215 (2017).
Kevin Barry & Bharat Malkani, Citation: Kevin Barry & Bharat Malkani, The Death Penalty's Darkside: A Response to Phyllis Goldfarb's Matters of Strata: Race, Gender, and Class Structures in Capital Cases, 74 Wash. & Lee L. Rev. Online 184 (2017), http://scholarlycommons.law.wlu.edu/wlulr-online/vol74/iss1/9.
In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This […]
Spencer T. Wiles, Citation: 74 Wash. & Lee L. Rev. Online 103 (2017).
Danielle Weatherby, Terri Day, Citation: 74 Wash. & Lee L. Rev. Online 86 (2017)
Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free […]
Carl Tobias, Citation: Carl Tobias, Nominate Judge Koh to the Ninth Circuit Again, 74 Wash. & Lee L. Rev. Online 64 (2017).
During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s […]
Elayne E. Greenberg, Citation: 74 Wash. & Lee L. Rev. Online 47 (2017)
The Online Journal requested that I evaluate Professor Strong’s empirical research, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” reported in 23 Wash. & Lee. L. Rev. 1973 (2016). The purpose of Professor Strong’s research is to help “fill the informational gap” about international commercial mediation for the United Nations Commission on International Trade […]
Edward D. Cavanagh, Citation: Edward D. Cavanagh, Mandating Rule 11 Sanctions? Here We Go Again!, 74 Wash. & Lee L. Rev. Online 31 (2017)
The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of […]
Johanna Bond, Citation: Johanna Bond, Zika, Feminism, and the Failures of Health Policy, 73 Wash. & Lee L. Rev. Online 841 (2017)
The Zika epidemic caused serious concerns about fetal health throughout Latin America and some southern states in the United States. The prevailing governmental response throughout the region continues to emphasize two disease control factors: pregnancy delay and mosquito abatement. This essay argues that the current health policy approach of the World Health Organization, the Centers […]
Carl Tobias, Citation: 74 Wash. & Lee L. Rev. Online 9 (2017)
Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because […]
Joan MacLeod Heminway, Citation: 73 Wash. & Lee L. Rev. Online 829 (2017)
Frederick E. Vars, Citation: 74 Wash. & Lee L. Rev. Online 1 (2017)
The Supreme Court recently heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.
Jeremy Berkowitz, Michael Mangold & Stephen Sharon, Citation: Jeremy Berkowitz, Michael Mangold & Stephen Sharon, Data Flow Maps—Increasing Data Processing Transparency and Privacy Compliance in the Enterprise, 73 Wash. & Lee L. Rev. Online 802 (2017)
In recent years, well-known cyber breaches have placed growing pressure on organizations to implement proper privacy and data protection standards. Attacks involving the theft of employee and customer personal information have damaged the reputations of well-known brands, resulting in significant financial costs. As a result, governments across the globe are actively examining and strengthening laws […]
Carl Tobias, Citation: Carl Tobias, Combating the Ninth Circuit Judicial Vacancy Crisis, 73 Wash. & Lee L. Rev. Online 687 (2017)
When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 […]
Thomas Berry, Citation: Thomas Berry, Explaining the Persistence of the “Ample Alternative Channels” Test, 73 Wash. & Lee L. Rev. Online 786 (2017)
Chetan Gupta, Citation: Chetan Gupta, The Market’s Law of Privacy: Case Studies in Privacy/Security Adoption, 73 Wash. & Lee L. Rev. Online 756 (2017)
This paper examines the hypothesis that it may be possible for individual actors in a marketplace to drive the adoption of particular privacy and security standards. It aims to explore the diffusion of privacy and security technologies in the marketplace. Using HTTPS, Two-Factor Authentication, and End-to-End Encryption as case studies, it tries to ascertain which […]
Ivan L. Sucharski & Philip Fabinger, Citation: Ivan L. Sucharski & Philip Fabinger, Privacy in the Age of Autonomous Vehicles, 73 Wash. & Lee L. Rev. Online 724 (2017)
To prepare for the age of the intelligent, highly connected, and autonomous vehicle, a new approach to concepts of granting consent, managing privacy, and dealing with the need to interact quickly and meaningfully is needed. Additionally, in an environment where personal data is rapidly shared with a multitude of independent parties, there exists a need […]
Susan McCarter, Elisa Chinn-Gary, Louis A. Trosch Jr., Ahmed Toure, Abraham Alsaeedi, Jennifer Harrington, Citation: Susan McCarter et al., Bringing Racial Justice to the Courtroom and Community: Race Matters for Juvenile Justice and the Charlotte Model, 73 Wash. & Lee L. Rev. Online 641 (2017)
This article describes regional institutional organizing efforts to bring racial justice to the Charlotte courts and community through a collaborative called Race Matters for Juvenile Justice (RMJJ). The authors explain community and institutional organizing in-depth using the example of minority overrepresentation in the juvenile justice system, but recognize the pervasiveness of racial and ethnic disparities. […]
Andrew F. Tuch, Citation: Andrew F. Tuch, The Limits of Gatekeeper Liability, 73 Wash. & Lee L. Rev. Online 619 (2017)
Paul Rosenzweig, Citation: Paul Rosenzweig, The Quality of Mercy, 73 Wash. & Lee L. Rev. Online 609 (2017)
Harold J. Krent , Citation: Harold J. Krent, Post-Trial Plea Bargaining and Predictive Analytics in Public Law, 73 Wash. & Lee L. Rev. Online 595 (2017)
Adam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the […]
Valena Beety , Citation: Valena Beety, Changing the Culture of Disclosure and Forensics, 73 Wash. & Lee L. Rev. Online 580 (2017)
This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings […]
Sonja R. West, Citation: Sonja R. West, The Supreme Court's Limited Public Forum, 73 Wash. & Lee L. Rev. Online 572 (2017)
When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that […]
John D. Bessler, Citation: John D. Bessler, The Inequality of America‘s Death Penalty: A Crossroads for Capital Punishment at the Intersection of the Eighth and Fourteenth Amendments, 73 Wash. & Lee L. Rev. Online 487 (2016)
Jenia I. Turner & Allison D. Redlich, Citation: Jenia I. Turner & Allison D. Redlich, Reply to Miriam Baer and Michael Doucette’s Reviews of Two Models of Pre-Plea Discovery in Criminal Cases, 73 Wash. & Lee L. Rev. Online 471 (2016)
Fredrick E. Vars, Citation: Fredrick E. Vars, Prosecutorial Misconduct: The Best Defense Is a Good Defense, 73 Wash. & Lee L. Rev. Online 465 (2016)
Carl Tobias, Citation: Carl Tobias, Confirm Judge Koh for the Ninth Circuit, 73 Wash. & Lee L. Rev. Online 449 (2016)
On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably […]
Kevin Golembiewski , Citation: 73 Wash. & Lee L. Rev. Online 433 (2016)
This term, the Supreme Court will consider Fry v. Napoleon Community Schools. Fry implicates a circuit split on the proper scope of the exhaustion requirement in 20 U.S.C. § 1415(l) of the Individuals with Disabilities Education Act (IDEA). That section requires parents of students with disabilities to exhaust state administrative remedies “before the filing of […]
Michael R. Doucette, Citation: Michael R. Doucette, 73 Wash. & Lee L. Rev. Online 415 (2016)
In their article, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, Professors Turner and Redlich ostensibly compare North Carolina’s “open-file” criminal discovery with Virginia’s “closed-file” discovery. Based on their survey results, they conclude that open-file discovery is “a better guarantor of informed decisions and efficient process in criminal cases.” While we appreciate the […]
Jennifer Wriggins, Citation: Jennifer Wriggins, Response to Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, 73 Wash. & Lee L. Rev. Online 401 (2016)
Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race […]