Menu Close

Washington and Lee Law Review - Developments

Development

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.

Development

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.

Development

by Robert J. Pushaw Jr.

This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those views. Amar demonstrates that, contrary to popular belief, these dead white guys actually have much useful to say about modern constitutional law. Second, he contends that the Constitution has always been a living document—the subject of an ongoing conversation among all Americans. Third, among law professors, Amar has no peer as a wordsmith. He writes with singular power, precision, flair, and wit.

On the other hand, Professor Amar’s extremely nationalistic vision of the Constitution leads him to excessively praise the similarly broad interpretations of federal power presented by Hamilton, adopted by Washington (whom Amar deems the true Father of the Constitution), and eloquently explicated by the Marshall Court. Conversely, Amar tends to belittle the opposing constitutional approach of Madison and Jefferson as unprincipled political gamesmanship, instead of fully and fairly engaging with their arguments. Indeed, if Amar is correct that the Constitution developed as a dialogue in which ordinary people participated, then they must have endorsed the narrow construction of the Constitution proffered by Jefferson and Madison (and their successors Monroe and Jackson) because Americans elected these men as Presidents for four straight decades.

Whether one agree or disagrees with Amar, however, he is our most creative and prolific scholar of constitutional law and history. Therefore, any serious student of the Constitution must grapple with his analysis and conclusions.

Development

by Justin C. Van Orsdol

To say that the student loan debt crisis is out of control is a massive understatement. Although solutions such as Public Service Loan Forgiveness and the recent temporary payment/interest rate freeze have provided some relief for borrowers, more can be done. Of course, as with any large outlay of taxpayer dollars, opposition is sure to be heated. Given the current political climate, the likelihood of any legislative fixes seems unlikely.

But what if there was an administrative solution that could do more to address this crisis without the cost of the legislative process? This essay proposes such a solution. It explains how, through an executive order and changes in the Federal Acquisition Regulation, the Government can provide additional relief to the 5.3 million people who work for federal contractors. Further, this essay explains why such an approach might be more advantageous than traditional legislation and counters likely rebuttals.

Development

by Carl Tobias

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump and the Republican Senates instituted and the numerous extraordinarily conservative judges whom they confirmed undercut appellate court diversity in terms of ethnicity, gender, sexual orientation, ideology, and experience; the appointments procedures; and citizen respect for this critical responsibility’s discharge, the presidency, the Senate, and the federal bench. Peculiarly important, some cases which Trump appointees have decided show how prescient was Biden’s rather impressionistic answer to a press question regarding the controversial issue of Supreme Court packing, which the nominee afforded near the 2020 presidential election’s conclusion. For example, Trump United States Court of Appeals for the Fifth, Sixth, and Eleventh Circuit confirmees’ judicial decision-making elucidates these propositions. Therefore, Biden promised that his administration would comprehensively remedy those stunning problems.

This essay’s initial section examines the nomination and confirmation procedures initiated by the GOP White House and each of the Republican Senate majorities, which permitted Trump and the chamber to appoint substantial numbers of exceptionally conservative appeals court judges, mainly by contravening, rejecting, or downplaying numerous rules and conventions that prior Presidents and the Senates had applied to felicitously appoint preeminent, moderate, diverse court of appeals jurists. Part one scrutinizes how Trump and the GOP chambers easily nominated and confirmed significant numbers of judges whose opinions could affirm his troubling presidential behavior and concomitantly reject Biden’s efforts that would ostensibly move the nation in better directions.

Segment two evaluates manifold endeavors of Biden’s presidency and the Senate Democratic majority which carefully address Trump circuit appointments’ detrimental impacts. This portion reveals that Biden deployed lessons which the President had extracted from leading responsibilities that he discharged as a Judiciary Committee member and the panel Chair, particularly which implicated Supreme Court nomination and confirmation processes, and from service as Vice President in President Barack Obama’s Administration. Biden has correspondingly relied substantially upon high-ranking executive branch officials with longtime appointments experience, tapping, for example, Ronald Klain as his chief of staff while appointing Dana Remus White House Counsel, from the Obama era while employing numbers of effective selection practices which Presidents Obama and Trump and earlier Republican and Democratic chief executives had instituted.

Part three surveys the consequences for appeal courts of Trump’s judicial appointments efforts and the implications of how President Biden responded. The court selection measures that the Democratic chief executive implemented allowed the White House and the Senate to appoint prominent, comparatively mainstream, diverse jurists, which eclipsed Trump’s record for approving twelve very conservative, accomplished, youthful judges throughout a first presidential year. The considerable success of Biden and the Democratic Senate majority respected their pledges to directly rectify Trump confirmations’ adverse effects, improve numerous critical diversity features, and restore dynamic “regular order” across the judicial appointments process.

The difficulties—particularly appointing rapidly so many accomplished, highly conservative, lifetime jurists, which former President Trump and GOP senators certainly orchestrated—will remain for a significant number of years and Democrats currently possess an exceptionally narrow Senate majority. The concluding portion, accordingly, provides numerous recommendations for how President Biden and the chamber might continue increasing diversity, namely ideological, and revitalizing dynamic regular order to efficaciously improve the federal courts of appeals.

Development

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.”

Development

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.

css.php