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 […]
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 […]
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 […]
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 […]
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.
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 […]
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. […]
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 […]
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 […]
Peter G. Strasser, Citation: Peter G. Strasser, An Anti-Corruption Bureau’s Inexorable Endeavor: A Study of Malawi’s Cashgate Scandal, 73 Wash. & Lee L. Rev. Online 303 (2016)
The “Cashgate” scandal has had far-reaching consequences for the southern African nation of Malawi and its people. Western donors suspended budgetary aid—circa $150 million annually—upon learning that civil servants and senior cabinet ministers in former President Joyce Banda’s administration had manipulated the government’s financial management system to embezzle more than $45 million over an eighteen-month […]
Wee Jin Yeo, Citation: Wee Jin Yeo, Belmora LLC v. Bayer Consumer Care AG—The Well-Known Marks Doctrine Reconsidered, 73 Wash. & Lee L. Rev. Online 188 (2016).
The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used […]
Colin Miller, Citation: Colin Miller, Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico, 73 Wash. & Lee L. Rev. Online 174 (2016),
On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court […]
Paul J. Larkin Jr., John-Michael Seibler, Citation: 72 Wash. & Lee L. Rev. Online 376 (2016)
Carl Tobias, Citation: Carl Tobias, Electing Justice Roush to the Supreme Court of Virginia, 72 Wash. & Lee L. Rev. Online 360 (2015).
In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a […]
Ryan H. Nelson, Citation: Ryan H. Nelson, Sexual Orientation Discrimination Under Title VII After Baldwin v. Foxx, 72 Wash. & Lee L. Rev. Online 255 (2015).
The Equal Employment Opportunity Commission in Baldwin v. Foxx opined—for the first time—that employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. This Article tackles the two administrative law questions that Baldwin poses: what level of deference should a court afford Baldwin, and should such deference force that […]
David H. Kaye, Citation: David H. Kaye, Ultracrepidarianism in Forensic Science: The Hair Evidence Debacle, 72 Wash. & Lee L. Rev. Online 227 (2015).
For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few […]
Victor Williams, Citation: Victor Williams, Raze the Debt Ceiling: A Test Case for State-Sovereign and Institutional Bondholder Litigation to Void the Debt Limit Statute, 72 Wash. & Lee L. Rev. Online 96 (2015).
In March 2015, the debt ceiling was hit again and sovereign default loomed. Refusing to timely raise the debt ceiling, congressional ideologues have four times pushed our nation to the brink of a catastrophic debt default in as many years. Our struggling economy is again threatened, financial institutions are again spending millions planning for default, […]
Frederic L. Kirgis, Citation: 72 Wash. & Lee L. Rev. Online 71 (2015)
In a federal system with state lines that are easily crossed, physically and electronically, legal disputes often raise choice-of- law issues. Common among those disputes are torts and contracts cases. The courts have taken a variety of approaches to these cases, leading to inconsistent results that depend largely on which forum the plaintiff selects. Judicial […]
John P. Gross, Citation: John P. Gross, Representation by Counsel or Access to Defense Resources: Utah’s Single Source Approach to Indigent Defense, 72 Wash. & Lee L. Rev. Online 51 (2015).
The State of Utah has a unique way of providing representation in criminal cases to defendants who are too poor to hire an attorney. In Utah, there is no statewide funding or supervision of indigent defense. Each county, city, or town is responsible for creating and funding their own indigent defense delivery system. Utah is […]
David Westin, Citation: David Westin, Citizen Lewis Powell, 72 Wash. & Lee L. Rev. Online 1 (2015)
This speech was given at the 2015 Lewis F. Powell Lecture on April 1, 2015 in the Millhiser Moot Court Room at Washington and Lee University.
Cadman R. Kiker III, Citation: 71 Wash. & Lee L. Rev. Online 282 (2015)
We are at the dawn of a new era of policing in the United States. In recent months, images of armed police officers patrolling the streets of Ferguson, Missouri, and of a toddler burned by a Georgia SWAT team’s grenade have been indelibly branded into America’s social consciousness. There is a unique bipartisan outcry from […]
Ronald Turner, Citation: 71 Wash. & Lee L. Rev. Online 264 (2015)
In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative […]
David S. Levine and Sharon K. Sandeen, Citation: 71 Wash. & Lee L. Rev. Online 230 (2015)
Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets […]
Colin Miller, Citation: 71 Wash. & Lee L. Rev. Online 186 (2014)
The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its non-production. […]
Kevin Bennardo, Citation: 71 Wash. & Lee L. Rev. Online 160 (2014)
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea […]
Lawrence L. Muir, Jr., Citation: 71 Wash. & Lee L. Rev. Online 73 (2014)
In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: […]
Horace, Citation: 71 Wash. & Lee L. Rev. Online 1
In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. […]