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Development

How to Get Away with Murder: When a White Male Police Officer Kills a Young Black Person

by Mitchell F. Crusto

Systemic racism in policing allows police officers, in particular white men, to continue to perpetuate the violent killings of Black people. This violence is not accidental. Rather it is intentional and allowed to continue due to a failure by the Supreme Court to hold police officers accountable. This Article explains how the doctrines of qualified immunity, willful intent, and objective reasonableness, as condoned by the Court, allow police officers to “get away with murder.”

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Response

How to Compromise on Saving the Most Lives: A Commentary on Hellman and Nicholson, “Rationing and Disability”

by David Wasserman

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much of their analysis, as well as with their conclusion that the “reserve approach” offers both a principled and practical compromise between these deeply embedded values. And until their article made me rethink the issue, I agreed with the authors that the “probability of survival” (PS) and “resource intensity” (RI) principles they see as presenting close calls were equally consequentialist, relying to the same extent on the tenacious appeal of the imperative to save the most lives when all cannot be saved.

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Note

The Haunting of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape

by Jordan S. Miceli

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction in custody proceedings and adoption proceedings, punishing both the victim mother who chooses to carry the pregnancy to term and the child born of rape. Although termination of parental rights is a civil matter, the Commonwealth currently imposes a criminal standard of proof on victim mothers.

Thus, this Note urges the adoption of the clear and convincing evidence standard in such termination proceedings. The current scheme debilitates a victim mother unable to secure a conviction against her rapist due to the unique and complex nature of the crime. The Commonwealth leaves the victim with no real choice in the matter: either abort the pregnancy and be free of her attacker forever, or carry the pregnancy to term and live in fear that her rapist will assert his parental rights over the child. The adoption of the clear and convincing evidence standard will help alleviate the life-altering harm facing a mother and child, and will ensure that all parties are given equal treatment under the law.

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Development

How Biden Began Building Back Better the Federal Bench

by Carl Tobias

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in practically all cases, because the United States Supreme Court Justices grant certiorari in such a minuscule number of appeals. The nomination and confirmation processes that the Republican White House and upper chamber majorities implemented and the myriad conservative judges whom they approved undermined appellate court and district court diversity in terms of ethnicity, gender, sexual orientation, ideological balance, and experience; the appointments procedures; as well as citizen respect for discharge of the preeminent responsibility to nominate and confirm exceptional jurists, the presidency, the Senate, the judiciary, and the rule of law. Accordingly, President Biden promised that he would comprehensively rectify those stunning complications.

The initial five superb, experienced prospects whom President Biden officially nominated during the month of April 2021 and the Senate members efficaciously investigated, questioned, and considered during the spring and confirmed throughout June demonstrated that the President and the Democratic chamber majority respected these pledges to strongly counter the deleterious consequences imposed by the judicial appointments which the Republican chief executive and the two GOP Senate majorities orchestrated, to improve the court diversity constituents, and to comprehensively revitalize dynamic “regular order” throughout the nomination and confirmation regimes. Therefore, the complications which Trump as well as the Republican Senate majorities in the 115th and 116th Congress caused and how Biden and the Democratic Senate majority commenced remedying or ameliorating the problems deserve consideration, which this piece undertakes.

The first section of the paper evaluates federal judicial selection throughout the administration of former-President Trump and the tenure of the two Grand Old Party Senate majorities during his term in office. The second portion explores how President Biden and the nascent Democratic Senate majority in the 117th Congress have started rectifying the detrimental consequences of the judicial selection practices that Trump and the Republican Senate majorities deployed. Because the segment detects that the Democratic chief executive and the razor-thin chamber majority have begun implementing nomination and confirmation processes that address the difficulties created by the former Republican President and the Senate majorities in the 115th and 116th Congress, the final part affords suggestions for improving the federal judicial selection process in Biden’s presidency, the 117th Senate, and the future.

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Roundtable

Three Observations about the Worst of the Worst, Virginia-Style

by Corinna Barrett Lain

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

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Note

Equity over Equality: Equal Protection and the Indian Child Welfare Act

by Lucy Dempsey

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But does this divergent treatment constitute impermissible racial discrimination? Should the ICWA’s protections be applied to children merely eligible for tribal membership? What level of scrutiny should courts use when analyzing the ICWA’s constitutionality? This Note will provide insight into these questions which the U.S. Supreme Court has not yet addressed.

This Note provides a background of the ICWA and examines the current constitutional controversy in the Fifth Circuit by placing the ICWA in the larger statutory context of federal Indian jurisprudence. This Note analyzes the fundamental question raised in Indian law equal protection cases—whether the term “Indian” should be interpreted as a racial or political classification. An examination of precedent confirms the unique status of Indians as non-racial, semi-autonomous actors who often receive uncommon treatment. With this context in mind, this Note explores past equal protection challenges to the ICWA and lays out the current case. This Note recommends that the Supreme Court uphold the Fifth Circuit’s finding of constitutionality on the equal protection claim and provides two possible analytical paths to reach that conclusion. The first ascribes to the common argument that “Indian” should be viewed as a political classification, subject to reduced scrutiny. The second, however, questions the assumption that the application of strict scrutiny is fatal to the ICWA, instead proposing an alternative path forward drawing from Supreme Court reasoning in affirmative action cases. This Note concludes that future challenges to the ICWA should be struck down as the ICWA passes all levels of constitutional scrutiny.

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Development

A Tale of Two Regulators: Antitrust Implications of Progressive Decentralization in Blockchain Platforms

by Evan Miller

Competition regulators have identified the potential for blockchain technology to disrupt traditional sponsor-led platforms, like app stores, that have received increased antitrust scrutiny. Enforcement actions by securities regulators, however, have forced blockchain-based platforms to adopt a strategy of progressive decentralization, delaying decentralization objectives in favor of the centralized model that competition regulators hope they will disrupt. This regulatory tension, and the implications for blockchain’s procompetitive potential, have yet to be explored. This Article first identifies the origin of this tension and its consequences through a competition law lens, and then recommends that competition regulators account for this tension in monitoring the blockchain industry and strive to resolve it moving forward.

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Roundtable

The Beginning of the End: Abolishing Capital Punishment in Virginia

by Alexandra L. Klein

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states’ modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, when Captain George Kendall was shot to death by a firing squad. Virginia has officially executed 1,390 people, more than any other state.6 I write officially, because Virginia, like many other states also has a history of extrajudicial executions through lynching. The Equal Justice Initiative has calculated that between 1877 and 1950, eighty-four people were lynched in Virginia. Lynchings were arguably a form of “extrajudicial execution” because they frequently involved either the deliberate ignorance or enthusiastic cooperation of local officials and were tools of social control, just like legislatively enacted capital punishment.

Over four hundred years since Captain Kendall died at Jamestown, Virginia has decided to end its brutal regime of capital punishment. This is a truly historic moment. Virginia will be the first southern state, as well as the first state of the group of eleven states that seceded and formed the Confederate States of America during the Civil War to do so.

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Development

Comparative Judicialism, Popular Sovereignty, and the Rule of Law: The US and UK Supreme Courts

by Lissa Griffin & Thomas Kidney

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more acute. The UK and the US Supreme Courts must tread a delicate line between the preserving the rule of law and usurping the role of elected representatives. How the Supreme Court in Washington and the Supreme Court in London address these challenges will have a tremendous impact on their respective futures.

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Note

PGS, I Love You: Rebuilding Copyright for Architecturally-Situated Pictorial, Graphic, and Sculptural Works

by Llewellyn Kittredge Shamamian

Over twenty years ago, in Leicester v. Warner Bros., the Ninth Circuit limited copyright protection for a certain sculptural complex located within a downtown Los Angeles high‑rise. The court determined that the sculpture, otherwise protected from pictorial reproduction, could be visually replicated without infringing on the artist’s copyright because it was part of its architectural context.

This Note explores two recent copyright cases where companies capitalized on painted street art, using the works as backdrops for social media advertising. The resulting litigation calls into question Leicester’s holding and the extent to which it may allow visual reproduction of non-sculptural works incorporated into architecture. This Note’s introduction addresses the rise of legal disputes in the street art community and the circumstances of these recent cases. Part II addresses fundamentals of domestic copyright law and the varied protection for certain forms of authorship. Part III discusses an important exception for the visual reproduction of architectural works and judicial application of the exception to disputes involving painted street art. Part IV argues that Leicester should not serve as the legal standard for all such controversies, and Part V articulates a clarified inquiry to limit judicial dependency on Leicester.

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