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Washington and Lee Law Review - Developments

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COVID-19 and the Conundrum of Mask Requirements

by Robert Gatter & Seema Mohapatra

As states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to stop the spread of coronavirus, wearing masks can be seen as a form of solidarity and desire to not infect others. Similarly, not wearing a mask can also be a political statement of sorts. Additionally, black men wearing masks have reported being asked to leave stores and fearing for their own safety. This Article provides an overview of the legal and policy landscape and focuses on the potential for policing against black Americans when mask mandates are in place. Despite the public health benefits of mask usage, due to mask mandates likely being enforced discriminatorily, we advise caution against mask mandates.

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Development

The Right to a Public Trial in the Time of COVID-19

by Stephen E. Smith

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific circumstances. This Article proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

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Development

COVID-19 and the Provisional Licensing of Qualified Medical School Graduates as Physicians

by Paul J. Larkin Jr.

State lawmakers should allow those graduates to receive a provisional license so that they can provide emergency medical care under the supervision of a licensed physician to help treat the ever-increasing number of COVID-19 patients we will see throughout the near future, or those patients who suffer from more common illness and injuries. Each level of government has its own peculiar responsibilities to address the COVID-19 pandemic. The states are responsible for licensing physicians who can treat the affected people. Each year, a large number of American and foreign medical school graduates do not find a residency position in the United States. Medical school graduates who have passed the qualifying examination have acquired a considerable amount of education and training during their medical studies, far more than physician assistants, nurses, military corpsmen and medics, and civilian paramedics or emergency medical technicians. They comprise a pool of talent that could be immensely useful in ameliorating the shortage of physician care throughout the country during the pandemic.

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Development

Suing Guns Out of Existence?

by Scott R. Thomas & Mystica M. Alexander

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception to the PLCAA. In that case, families of the victims of the tragic Sandy Hook Elementary School shooting sought to hold those in the chain of distribution of the weapon used in the attack accountable for the harm that resulted from their “unethical, oppressive, immoral, and unscrupulous” marketing of that product. The court allowed this case to proceed on its merits.

This Essay addresses the court’s decision and its implications for lawsuits in other jurisdictions. More specifically, the authors believe that the court wrongly interpreted the PLCAA’s legislative history, reached an incorrect conclusion, and lit a path to the courthouse steps for other plaintiffs with similar claims in certain other jurisdictions.

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Development

Discretionary Life Sentences for Juveniles: Resolving the Split Between the Virginia Supreme Court and the Fourth Circuit

by Daniel M. Coble

At the age of 17, Donte Lamar Jones shot and killed a store clerk as she laid down on the floor during a robbery. He was spared the death penalty by agreeing instead to die in prison at the end of his life.

Two years later in Virginia, 12 individuals were murdered for doing nothing more than being in the wrong place at the wrong time. Those individuals were killed by Lee Malvo and John Muhammad, better known as the “D.C. Snipers.” While John Muhammad was given the death penalty for his heinous crimes, Lee Malvo, who was 17 during the murder spree, was given a life sentence. What these two cases have in common is one issue: as juveniles they were both condemned to die in prison. What separates their cases is their legal challenges and how two different courts have ruled—one federal, one state. While the facts of their cases might be different, there are hundreds, if not thousands, of cases across the United States that reflect similar legal proceedings, and until the Supreme Court clarifies its position, more state and federal courts will reach different conclusions.

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Development

Less Trust Means More Trusts

by Bridget J. Crawford

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the word, one can discern fault lines in contemporary U.S. political and legal structures. These are made even plainer when examined through the lens of ongoing litigation involving human embryos created by actress Sofia Vergara and her former fiancé.

Just as termites can enter homes through foundational cracks or wood brought from the outside, interpersonal, community or structural confidence may erode in the face of hostility, indifference or inequality. Similarly, as termites can slowly damage a home over a period of years before the harm becomes visible, the beneficial form of ownership known as a trust gradually–and then suddenly– has morphed almost beyond recognition over the last twenty-five years. Eaten away are the traditional limitations on trust duration, trust modification and the type of property that can be held in trust. In some states, irrevocable trusts can last forever, be decanted to another trust with entirely different terms, or even hold legal “title” to human embryos. These changes to centuries of trust law reveal changing attitudes about wealth, property ownership, and personal autonomy. If society truly values equal opportunity for all people, then trust–and trusts–need attention.

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Development

Education Reform and Detroit’s Right to Literacy Litigation

by Kristine L. Bowman

Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first half of 2019. This litigation has already broken new ground and, regardless of the ultimate outcome, it is valuable because it invites us to revisit fundamental questions about rights, remedies, and the role of courts in education reform.

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Development

#MeToo & Tax

by Margaret Ryznar

Recently, legislative efforts have taken aim at sexual harassment in the workplace. Among these may be a surprising but effective approach—disallowing tax deductions for sexual harassment settlements subject to non-disclosure agreements. This Essay analyzes such a 2017 tax reform provision.

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Development

Chilling: The Constitutional Implications of Body-Worn Cameras and Facial Recognition Technology at Public Protests

by Julian Redmond Murphy

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the first scholarly treatment of this issue. Far from a purely academic exercise, the police use of FRT equipped body-worn cameras at public protests is sure to confront the courts soon. Many police departments have, or will soon have, body-worn cameras equipped with real time FRT and a number of police departments do not prohibit their members from recording public protests. Although primarily descriptive—exploring the state of current Fourth Amendment doctrine by predicting its application to a hypothetical scenario—this Comment has a normative subtext; namely, suggesting that First Amendment values can strengthen the Fourth Amendment’s protections against the tide of technologically enhanced mass surveillance.

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Development

Second Thoughts About Stun Guns

by Rene Reyes

The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. Supreme Court in 2016. However, the guidance given by the Supreme Court in the Caetano litigation was far from unambiguous: it faulted the SJC’s reasoning without opining on the ultimate question of the ban’s constitutionality, thus leaving open the possibility that the statute could pass constitutional muster under an alternative analytic approach. This essay discusses what such an alternative approach might have looked like. Specifically, I suggest that the SJC could have upheld the statutory ban by emphasizing the relative rarity of stun guns as a preferred means of self-defense not only as a matter of founding era history, but also as a matter of contemporary reality. This sort of analysis would have allowed the SJC to distinguish stun guns from other weapons that have received constitutional protection in other cases, and would have been fully consistent with both the scope and limitations of the right to bear arms under the Supreme Court’s Second Amendment jurisprudence.

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