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Washington and Lee Law Review - Developments

Development

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.

Development

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.

Development

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.

Development

by Carl Tobias

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in 113 appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of ethnic-minority, LGBT, and female nominees rather swiftly arose, even though the administration is relatively nascent. Because when Trump captured the White House he pledged to serve as the President of all U.S. citizens, because diversity has great significance, and because the 140 current lower court vacancies provide an exceptionally rare opportunity, the striking paucity of minority representation in Trump’s federal court nominees deserves evaluation.
The initial section of this piece surveys why increased diversity is essential, detecting that improved minority representation enhances the quality of court opinions, confines ethnic, sexual-preference, and gender biases which undermine justice and expands public confidence in the judiciary. The segment also reviews how modern Presidents have addressed diversity when nominating and confirming jurists. The second part considers the record which the Trump White House has assembled, finding that it compiled the weakest one since President Ronald Reagan served when substantially fewer people of color, LGBT individuals or women were practicing lawyers. The third section analyzes the record’s consequences. Because the Trump presidency only commenced in 2017 and the executive has considerable time for treating this dearth, the final segment provides recommendations which might help place numerous minority, LGBT, and female jurists on the federal courts.

Development

by Thomas M. DiBiagio

A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct, culpable targets often are able to insulate themselves from the underlying criminal conduct and thereby, frustrate the prosecution’s ability to meet this evidentiary standard. The resulting impunity undermines the public’s trust and confidence in the fundamental fairness of the enforcement of the criminal laws.

This Article asserts that the facilitation theory of prosecution can be used to extend the limits of the mail and wire fraud statute to capture culpable targets for financial crimes and corporate corruption. Under the facilitation theory, a defendant culpably participates in criminal conduct when he knowingly acts to influence, enable, further, or conceal the criminal conduct.

Although there are no legal barriers to bringing financial crimes and corporate corruption in full view, it is acknowledged that there are substantial factual challenges. These cases often involve complex fact patterns and shifting narratives. Nevertheless, the interest of justice compel a persistent effort by prosecutors to establish real consequences for facilitating corporate criminal conduct.

Development

by Benjamin M. Flowers

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional-doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.

Development

by Danielle Weatherby, Terri Day

Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws, this Essay suggests that the reconciliation of these seemingly irreconcilable interests is rooted in their common intrinsic value: maintaining the social order. Ultimately, Masterpiece Cakeshop provides an opportunity for the Court to reclaim the grounding principles inherent in public accommodation laws that recognize the civic duty in “serving the public” and hold that free exercise must bow to equal protection when necessary to maintain the social order.

Development

by Johanna Bond

The Zika epidemic caused serious concerns about fetal health throughout Latin America and some southern states in the United States. The prevailing governmental response throughout the region continues to emphasize two disease control factors: pregnancy delay and mosquito abatement. This essay argues that the current health policy approach of the World Health Organization, the Centers for Disease Control, and various national governments fails in three primary ways. First, the approach does not adequately consider the intersection of gender and poverty; thus, the current policy fails to respond to the needs of women living in poverty. Second, the health policy response fails to consider the impact of gender-based violence in its efforts to control the epidemic. The recommendation to delay pregnancy, for example, fails to account for the widespread incidence of intimate partner violence in the region. A high rate of sexual violence in intimate partnerships makes the policy less effective, because some women will be impregnated as a direct result of intimate partner violence and others will be unable to negotiate for safe sex for the same reason. Third, the policy response fails to address the broader question of access to contraception and abortion in the region. Two decades of research concerning the connections between gender and HIV/AIDS transmission have taught policymakers a great deal about the need to carefully consider gender in the design and implementation of a public health response. Those lessons, however, have not translated to the Zika context and, unfortunately, the myopic public health response will leave women and their children increasingly vulnerable to Zika infection.

Development

by Carl Tobias

Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because they restrict the expeditious, inexpensive and equitable disposition of cases. Nevertheless, the White House has been treating crucial issues that mandate careful attention—specifically establishing a government, confirming a Supreme Court Justice, and keeping numerous campaign promises. How, accordingly, can President Trump fulfill these critical duties and his constitutional responsibility to nominate and, with Senate advice and consent, appoint judges?
This Article initially canvasses judicial appointments in the administration of President Barack Obama. The evaluation ascertains that Republican obstruction allowed the upper chamber to approve merely twenty jurists across the entire 114th Congress, leaving 105 empty seats and fifty-one expired nominations when the Senate adjourned on January 3, 2017. The Republican Senate majority’s refusal to confirm a single jurist after July 6, 2016— encompassing three circuit nominees whom the Judiciary Committee approved with bipartisan support and twenty district court aspirants whom the committee voice voted without dissent—could portend that President Trump will renominate comparatively few of President Obama’s nominees. The Article then scrutinizes the consequences for the judiciary, the Senate, the President, and the country of confronting many judicial openings. The appeals and district courts require all of their judges to deliver justice, but President Trump addresses numerous troubling concerns—which include global matters, such as the Middle East and the South China Sea, and domestic problems, encompassing health care, economic inequality, and responding to a probe of Russia’s efforts to meddle in the 2016 United States elections—and tendered merely one lower court nominee prior to May 8. The last Part, thus, proffers suggestions to fill the numerous openings with a finely-tuned assessment of the persons nominated by emphasizing those who secured committee reports.

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