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Washington and Lee Law Review - Developments

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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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by Eric J. Segall

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. A master of the long game and the catchy sound bite, hubris, not institutionalism, most defines the Chief Justice of the United States.

Development

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.

Development

by Nicole Buonocore Porter

Although combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit nevertheless suffered workplace consequences from logging many fewer work hours than before the pandemic. The exact magnitude of this toll, in terms of costs and careers, will not be known for years, if ever. This Article explores the challenges working mothers faced during the pandemic and sketches an outline of what solutions might have mitigated the difficulties during the pandemic and could make a difference in the lives of working mothers moving forward.

Development

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.

Development

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.

Development

by Mark Kelman

With surges in COVID-19 cases threatening to overload some hospital facilities, we must face the possibility that therapeutic treatments will need to be rationed, at least in some places. I do not propose any particular ideal rationing scheme but caution strongly against adopting a position that Professor Bagenstos advocated this past spring, rejecting rationing on the basis of patient life expectancy simply because life expectancy based rationing might threaten the factual interests of those with disabilities and might conceivably be implemented by those making judgments that were not simply inaccurate but grounded in biased, unacceptably discriminatory intuitions that some decision makers would have about the life expectancy of those with disabilities. My view is that Professor Bagenstos does not make either considered normative or empirical arguments that attending to the factual interests of those with disabilities or protecting against the possibility of discriminatory implementation of a plan should trump all other considerations; instead, he is “performing” his rhetorical commitment to a subordinated community as though that commitment functioned in the same way as a formal, normatively and factually defended side constraint on action would function.

Development

by Rep. Eric M. Swalwell & R. Kyle Alagood

A national security strategy is the “nation’s plan for the coordinated use of all the instruments of state power—nonmilitary as well as military—to pursue objectives that defend and advance its national interest.” Perhaps the most straightforward national security objective is to protect the country from foreign invasion, but national security involves other objectives that aim to protect people in the United States as well as their values. For example, protecting U.S. elections from foreign interference is a security objective that advances the nation’s interest in democratic governance. The outbreak of a highly contagious disease like COVID‑19 strikes at the core of national security and the nation’s interest in protecting its citizens from unnecessary harm.

Development

by Michael T. Morley

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when serious emergencies preclude them from being conducted or concluded on Election Day itself.

A court may also postpone or extend a federal election when necessary to prevent constitutional or statutory violations. The Supreme Court has emphasized that courts should generally avoid granting such relief at the last minute, although major unexpected emergencies may sometimes render it necessary. A court may not order an election postponement or extension, however, unless other, less extensive changes to the rules governing the electoral process would be insufficient to remedy the underlying constitutional or statutory violation. And courts may be especially reluctant to grant such relief in states that provide extensive opportunities for early and absentee voting before Election Day. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy—particularly in the unique context of presidential elections—that should be employed only in the rare, extreme case where alternatives would be completely ineffective.

Development

by George D. Brown

The Supreme Court’s decision in the “Bridgegate” controversy has been the subject of intense debate. It has received strong support. However, some critics assail the decision as representative of a pattern of recent cases in which the Court has shown itself as indifferent to political corruption, if not supportive of it. Somewhat lost in the discussion is the decision’s potential to be the foundation for a seismic re-alignment of anti-corruption enforcement in the United States. The current model—with federal prosecution as the norm—is not cast in stone.

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