After fifty years of a failed war on drugs, many states are just now beginning to take steps toward attempting to repair a half-century of harm. By examining the response of Washington’s government at the executive and legislative levels to the Washington Supreme Court’s decision in State v. Blake, this Note identifies some key factors that must be present in the paths forward for all states in their own processes of reform. The stakeholders involved in transforming the criminal legal system must ensure that relief from prior drug-related convictions is automatic, geographically standardized, and complete. Any form of relief must include the right to the assistance of counsel. Lawmakers and other stakeholders must also consider the inadequacy of simply substituting misdemeanor convictions for felony convictions. Finally, any large-scale reform of the criminal legal system must include input from the people most affected by the failed war on drugs. This is an opportunity to embrace truly bold and meaningful reform. By applying the factors identified in this Note to any legislation tackling the fallout of Blake, Washington can live up to the promise of the decision and lead the way in the national process of creating a fair and equitable criminal justice system.
Washington and Lee Law Review - Online Edition
by Max Stul Oppenheimer
The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. That position has recently been upheld by a federal court. This article argues that the Constitution and current statutes do not compel that result, that the denial of protection will hinder innovation, and that if intellectual property rights are to be limited to human innovators that policy decision should be made by Congress, not an administrative agency or a court.
by Alan Trammell, Samuel Calhoun, Ben Davis & Helen Alvare
The 2021 Supreme Court term created shockwaves by overturning Roe v. Wade, 410 U.S. 113 (1973). The Washington & Lee School of Law Federalist Society chapter brought together Professors Helen M. Alvaré of George Mason University Antonin Scalia School of Law, and Professors Samuel Calhoun, Alan Trammell and Ben Davis of Washington & Lee School of Law to discuss the far-reaching ramifications ofDobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022). The panel was moderated by Haley Carter ‘24L, the W&L Federalist Society Vice President. Each panelist addressed aspects of the decision relevant to their areas of expertise. The discussion included how the Fourteenth Amendment could be used to create a right to life for the unborn, how Dobbs may alter any substantive due process cases and rights moving forward, how the law should consider women’s rights when women themselves are split on the issue of abortion, and how abortion restrictions could violate international human rights law. The product resulted in a diverse and balanced discussion of the Supreme Court’s decision last June.
To access the recording: https://wlu.box.com/s/dff9ij612t0a94o1lbgzfad4an1knd04
by Margaret Ryznar
Invaluable guidance has emerged regarding online teaching in recent years, but less so concerning online and take-home final exams. This article offers various methods to administer such exams while maintaining their integrity—after asking artificial intelligence writing tool ChatGPT for its views on the matter. The sophisticated response of the chatbot, which students can use in their written work, only raises the stakes of figuring out how to administer exams fairly.
by Shanelle Doher
Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially disrupts or interferes with school activities. However, prior to 2021, the Court had never directly addressed whether a school’s capacity to sanction speech extended off campus. This changed with Mahanoy Area School District v. B. L., where the Court implemented a heightened Tinker standard for off campus speech, indicating some hesitation to extend school authority to cyberspace.
As monumental as the decision is, it is unlikely that Mahanoy will do much to safeguard professional students’ First Amendment rights. In the fifty years following Tinker, the Supreme Court has consistently denied certiorari in cases involving professional student speech, whether on or off campus. In the absence of such guidance, appellate courts have struggled with how and to what extent to apply Tinker and its progeny to professional programs. This has led to inconsistent judicial approaches—almost all favoring universities—that provide professional students with little guidance or reassurance in the strength of their constitutional rights.
This Note argues that courts have failed to protect professional students’ First Amendment speech rights, both on and off campus. The method by which appellate courts have analyzed and applied these doctrines suggests that bad facts are creating bad, or at least incomplete, law. By carefully examining student speech doctrines before exploring professional student speech decisions, this Note asserts that appellate courts have performed relatively cursory reviews of Tinker and its progeny, resulting in misrepresentations of the Supreme Court’s precedent. However, this Note proposes that this is an avoidable outcome that careful, rhetorical analysis of Supreme Court precedent can rectify. When properly analyzed, student speech doctrines should provide a sufficient basis to reliably evaluate professional student speech, so long as courts consider the special characteristics of the professional school environment.
by Mark T. Wilhelm & Danielle Clifford
Beginning in March of 2020, public companies in the United States were forced to take unprecedented measures to observe corporate formalities while following the government-mandated health and safety measures resulting from the COVID-19 pandemic. Those measures made in-person activities and meetings either incredibly challenging or, in certain jurisdictions, illegal. Because “proxy season,” the time when public companies typically hold their annual meetings of stockholders, followed shortly after the mass implementation of COVID-19 lockdowns and quarantines, public companies that had historically held these meetings in-person were left scrambling to find an alternative means to meet. Nearly overnight, the pandemic caused an explosive transition from in-person annual meetings to virtual annual meetings. This article examines that trend, both qualitatively and quantitatively.
More specifically, this article presents the results of primary research that quantifies the prevalence of virtual annual meetings before, during and (depending on one’s view of the current state of affairs) after the height of the COVID-19 pandemic. The results are offered using a series of different metrics to provide a comprehensive picture regarding the sudden transition and theorizes a new normal in one of the most important investor-relations tools available to public companies.
by Charisma Hunter
Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.
The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the United States Constitution during the Constitutional Convention in 1787. During the period of Reconstruction in 1868, the Fourteenth Amendment was ratified to remedy racial injustices and to provide Black people with equal protection under the law.
The Supreme Court’s jurisprudence on whether the Fourteenth Amendment’s Due Process Clause selectively incorporates basic freedoms and rights outlined in the Bill of Rights is nearly incomprehensible. For example, the Supreme Court, in a piecemeal fashion, has found that the Due Process Clause of the Fourteenth Amendment should be construed to require police and the judiciary to acknowledge and respect basic rights found in the amendments, such as the Fourth and Eighth Amendments. Yet, for over fifty years after the ratification of the Reconstruction Amendments, the Court refused to acknowledge that the Due Process Clause was designed to protect the rights of individuals against the state.
The Black Fourth Amendment will repair and remedy the discriminatory policing of Black bodies. The Black Fourth Amendment will repair and remedy the Court’s Fourth Amendment jurisprudence by creating a rebuttable presumption, making prosecutors and the state prove that the officer had an actual reasonable suspicion or probable cause basis to arrest a Black person, instead of mere subjective ideas and preconceived notions. Through this measure, the Black Fourth Amendment will carry out what the Fourteenth Amendment’s enigmatic Due Process Clause was intended to do—to incorporate substantive due process rights, such as those rights outlined in the Fourth Amendment, and to guarantee equal protection to Black people through the Fourteenth Amendment’s Equal Protection Clause.
by Molly E. O'Connell
The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without a marijuana breathalyzer or reliable Field Sobriety Tests, law enforcement officers are forced to find another way to determine impairment. Searching the vehicle for evidence of recent marijuana use can be an attractive option. However, the Fourth Amendment prohibits “search first, find probable cause later” policing. A roadside vehicle search violates a driver’s Fourth Amendment rights if sufficient evidence of impairment is lacking. Until law enforcement can reliably determine marijuana impairment at the roadside, drivers need protection from these unconstitutional searches. This Note addresses how states can disincentivize potential Fourth Amendment violations.
To provide context for this discussion, this Note begins by outlining the history of marijuana’s legal status and summarizing the relevant Fourth Amendment case law. Next, it contrasts the challenges of determining marijuana impairment with the relative ease of testing for alcohol impairment during motor vehicle stops. This Note then presents case studies of three states that each have a distinct legal approach to determining marijuana impairment amongst drivers. Finally, this Note provides prescriptive recommendations for states that have legalized or plan to legalize marijuana. Ultimately, this Note provides the reader with a primer on an important legal issue: how the inability to reliably establish marijuana impairment during a traffic stop creates an incentive for the police to search the vehicle first and find probable cause later.
by Imre S. Szalai
The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other workers. Using the Star Wars universe, this Article clarifies and critiques flaws in the Court’s ruling. The decision provides a new hope and blueprint for protecting the rights of workers and consumers around the country.
by Marcia A. Zug
Guns are deadly. They are especially deadly for children yet, currently, parental gun ownership is not a major factor in custody disputes. This needs to change. Making irresponsible gun ownership a routine factor in custody cases could transform parental gun behavior. In other contexts, the potential loss of custody has proven to be an extremely strong deterrent. Moreover, unlike other proposed solutions to gun fatalities, this is a change that can be made right now. Making guns a part of custody disputes does not require the enactment of new legislation or even a judicial determination. By simply raising the issue of gun safety in custody cases, family lawyers can reduce dangerous gun behavior and save children’s lives. This solution won’t end all childhood gun injuries, but it could make a real difference.