When the government obstructs a detainee’s ability to communicate with attorneys, normal rules governing the formation of attorney-client relationships break down. While some work-arounds exist to allow lawyers to bring such cases to court, they have significant limitations and can create problems of their own. The legal profession and the courts should adopt new rules modeled on emergency medicine to facilitate the filing of urgent civil rights claims for clients who are not in a position to consent. In emergency medicine, physicians can presume client consent for certain narrow and urgent purposes. Certain lawyers, in extreme cases, should be able to do the same.
Washington and Lee Law Review - Homepage Feature – Online
Note
by Nathan Heastie
Johnson & Johnson’s market cap is twice the GDP of Oklahoma. So, when Oklahoma hauled Johnson & Johnson and other behemoth pharmaceutical companies into state court for their participation in the opioid epidemic, Big Pharma’s resources created a David v. Goliath situation. Against all odds, Oklahoma stood toe-to-toe with Big Pharma and brought home more than $650 million in settlement funds.
Oklahoma’s success would be otherwise impossible without the assistance of three private law firms serving the role of “private attorneys general.” The State signed contingency fee arrangements with the firms, transferring the financial burden of litigation from the State to the firms, with the promise of a share of any recovery.
Critics argue that state attorneys general contracting with private law firms is akin to making a deal with the Devil. State attorneys general, sworn to public servitude, are thought to use litigation solely as a tool to protect citizens of their state. While private law firms are seen as businesses with the monolithic goal of increasing profit and maximizing shareholder value. The private attorney general model creates the natural concern that the underlying profit motive incentivizes law firms to litigate in a way that guarantees the highest recovery, not in the way that guarantees the most just outcome.
This Note analyzes Oklahoma’s bout with Big Pharma and the efficacy of the private attorney general model by reviewing every publicly available settlement and calculating the contingency fee awarded to the private law firms. The Note sets aside the black and white analysis of state attorneys general as purely altruistic actors and private law firms as purely money-hungry entities. In the end, this Note concludes that the private attorney general model can be exploited by corrupt players on either side but, with the appropriate safeguards, can produce massive rewards for states willing to accept the risk.
Note
by Hazel Fernandez
Once limited to entertainment and disinformation, deepfakes are now extending into the financial sector, where voice and facial impersonations exploit biometric authentication systems to facilitate fraudulent transactions. This evolution exposes gaps in existing legal and regulatory frameworks, raising critical questions about consumer protection and institutional safeguards. This Note argues for a reconceptualization of deepfake harms as both a privacy and a financial security issue. It examines the illusion of consent generated by synthetic impersonation and insufficient statutory protections. The analysis examines the patchwork of federal, state, and international laws governing data privacy and artificial media, highlighting the gaps that allow biometric exploitation to exist. Finally, this Note proposes a two-pronged solution: enactment of comprehensive federal privacy legislation with biometric protections that incorporate robust notice-and-choice standards coordinated enforcement between state and federal authorities, and implementation of a public-private key infrastructure within financial institutions to authenticate identity against deepfake interference.
Development
by Mitchell F. Crusto
Since 2012, several states and municipalities have decriminalized the non-violent use and possession of small amounts of recreational marijuana by adults. These criminal law reforms raise the issue of whether individuals who were convicted in the past should be exonerated retroactively by way of pardons or clemency. Consequently, many past marijuana offenders remain in state prisons for committing acts that are no longer deemed illegal in many states. Furthermore, these prisoners, as well as persons who were formerly accused or imprisoned, suffer from the stigma and negative collateral consequences of their alleged criminality. In response to these injustices, many governors have granted clemency to a broad group of such past offenders. Despite those governors who have granted clemency, there are other governors who want to grant such clemency but have not been able to do so. This raises the quintessential question: “Why have some governors been successful at granting clemency and others not so?” To answer that question, we need to analyze the legal issues and practices surrounding clemency for past offenders of the simple possession of marijuana.
This essay presents a qualitative study that examines various states based on their governors’ ability to pardon individuals convicted of past marijuana offenses. It provides observations and recommendations to improve the clemency process. This study concludes that for true restorative justice to redress the misplaced War on Drugs, state governments should amend, where necessary, their clemency laws to empower the governor of each state to pardon former offenders of the simple, non-violent possession of marijuana.
Article
by Chad Flanders
In Erlinger v. United States, the United States Supreme Court ruled that finding that an offender had committed two felonies “on separate occasions” under the Armed Career Criminal Act had to be done by a jury, not a judge. In one respect, the decision is narrow: it is an extension of the Court’s Apprendi jurisprudence. But in another respect, the decision is far-reaching. As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge—rather than the jury—the power to decide whether someone is a “persistent” or “habitual” offender based on whether a defendant’s felonies occurred at “different times” or on “separate occasions.” This Article is a call for lawyers and scholars to pay attention to Erlinger. It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.
Article
by Annelise Burgess
In order to keep America’s armed forces deadly, ESC must be decriminalized. The MCM’s 2019 update to start including non-heterosexual marriages and affairs tragically expands the reach of ESC. This Note presents new data on charging patterns of ESC in the Marines, highlighting the crime’s active use. ESC continues to overcompensate for behavior prejudicial to good order and discipline or service discrediting; this overcompensation results in subjecting non-prejudicial and non-service-discrediting behavior to criminal action, simultaneously infringing on service members’ constitutional rights and serving as fodder for public outcry. Military leaders should decriminalize ESC and alternatively penalize the behavior by administrative action or Administrative Separation. It’s time to save Private Unfaithful.
Development
by Aurelien Portuese
Illumina-Grail represents an important moment in antitrust litigation, reshaping the legal landscape for vertical mergers in innovation-driven markets. This Article analyzes the Federal Trade Commission’s uncommon achievement in blocking the Illumina-Grail merger—a ruling sustained by the Fifth Circuit Court of Appeals—emphasizing its significant ramifications for antitrust legislation. The case examines the complex dynamics of innovation competition and emerging market definition, challenging established doctrines regarding the inherently procompetitive nature of vertical mergers. This Article examines the changing criteria for defining relevant markets and evaluating competitive harm in research and development-oriented industries. It also discusses the Fifth Circuit’s support of the FTC’s strategy, including the controversial dismissal of Illumina’s suggested remedies and efficiencies. To be sure, Illumina-Grail highlights the increased scrutiny on vertical mergers, as they are instrumental in shaping a given innovation policy but also market dynamics and the burden-shifting framework in antitrust litigation.
Note
by Spencer Thomas
If the marketplace of ideas provides the basis for our growth and self-determination as a society, college campuses are the factories in which those ideas are cultivated, tested, and manufactured. Equally important, they are often the chief mechanism by which individual students are given the tools to meaningfully participate in the political process, in civic and social institutions, and the ability to chart socially mobile and economically independent lives.
Yet federal courts have never recognized a student’s liberty interest in their education. Adopting a framework initially posited by Professor Matthew Shaw, this Note advocates that students retain a substantive due process property interest in a post-secondary education. Next, the Note addresses an equally compelling issue: once a student’s property interest in her education has been recognized, what procedural protection does a university owe her when adjudicating an allegation of some non-academic misconduct? The Note specifically argues in favor of an accused student’s limited right to cross-examination.
Applying existing theory and current caselaw, the solutions reconcile a student’s property interest under one single doctrinal framework and provide a uniform set of procedural rules universities should follow in determining whether the student’s interest in remaining in school should be forfeited. The Note provides both students and their universities with a more stable, more predictable procedure for vindicating individual student rights and protecting education institutions as a whole.
Development
by Kevin Frazier
The rapid advancement of autonomous vehicle (“AV”) technology presents a unique opportunity to enhance public safety by drastically reducing road fatalities. Despite significant private sector investment and demonstrated improvements in AV performance, public adoption and integration remain hindered by regulatory gaps and societal skepticism. This Article argues that the federal government has an affirmative obligation, rooted in the doctrine of a right to effective government, to champion the adoption of technologies like AVs that meaningfully promote the general welfare.
Drawing on the Preamble’s mandate to advance the general welfare and lessons from the transition from the Articles of Confederation to the Constitution, this Article situates the government’s responsibility within the historical and theoretical framework of effective governance. It introduces a three-pronged framework to evaluate when and how the government should intervene to advance technologies that may provide public goods like AVs. Applying this framework, the Article concludes that federal inaction on AVs undermines traffic safety, environmental goals, and economic equity. By setting nationwide AV regulations and facilitating public exposure to AV technology, the federal government can fulfill its constitutional duty to advance public welfare. This analysis not only addresses AVs as a case study but also provides a foundational approach for evaluating governmental obligations to emerging technologies.
Development
by Clare R. Norins & Mark L. Bailey
Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.
In this Article, we explain the Court’s novel two-part test for determining when a public official engages in state action on social media sufficient to support a constitutional claim under 42 U.S.C. § 1983. Lindke v. Freed clearly (and correctly) establishes that public officials can act in their official capacity when operating a personal social media account. The Court’s default presumption in the second prong of the test, however, improperly allocates the burden of proof to private citizens in close cases to prove whether the government official subjectively intended her social media speech to be personal or official. As we show, this part of the decision is out of step with the Court’s state-action precedent and will lead to unacceptable chill and restraint of protected speech. We therefore introduce a revised standard—an objective “reasonable viewer” approach—that is more in line with long-standing First Amendment principles, which we urge the Court to adopt in future cases.
