Menu Close

Washington and Lee Law Review - Developments


by Carl Tobias

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland, the experienced, moderate candidate, whom President Obama nominated to replace Justice Antonin Scalia. Because Judge Koh is an exceptional, consensus nominee—and the Ninth Circuit must have its entire judicial complement to resolve promptly, inexpensively, and equitably the nation’s largest appellate docket—her confirmation process merits scrutiny.

This piece analyzes Koh’s impressive record, judicial selection under President Obama, and the Ninth Circuit’s present circumstances. The paper concludes that Judge Koh is a highly accomplished, mainstream candidate and the appellate court desperately needs all twenty-nine of its members. Republican senators, however, did not cooperate, particularly after they had captured an upper chamber majority in the 114th Congress, a situation that this presidential election year significantly aggravates. The last section, therefore, proffers recommendations for Judge Koh’s approval.


by Kevin Golembiewski

This term, the Supreme Court will consider Fry v. Napoleon Community Schools. Fry implicates a circuit split on the proper scope of the exhaustion requirement in 20 U.S.C. § 1415(l) of the Individuals with Disabilities Education Act (IDEA). That section requires parents of students with disabilities to exhaust state administrative remedies “before the filing of a civil action . . . seeking relief that is also available under” the IDEA. Two different approaches to this requirement have emerged among the courts of appeals: an “injury-centered” approach and a “relief-centered” approach. Under the injury-centered approach, exhaustion is required when a child’s injuries are education-related. In contrast, the relief-centered approach demands exhaustion only if a parent seeks a form of relief that can be obtained under the IDEA. If the Supreme Court adopts the injury-centered approach in Fry, it should be cautious in its application of the approach. The Court’s application of the injury-centered approach could have important, unforeseen consequences for students with disabilities. The approach requires courts to consider what “educational” means under the IDEA—an analysis that bears on the scope of the IDEA’s substantive protections. And the Court has yet to provide guidance as to the definition of “educational.” Therefore, the Court’s application of the approach in Fry could have a significant impact on students’ access to special education services.


by Peter G. Strasser

The “Cashgate” scandal has had far-reaching consequences for the southern African nation of Malawi and its people. Western donors suspended budgetary aid—circa $150 million annually—upon learning that civil servants and senior cabinet ministers in former President Joyce Banda’s administration had manipulated the government’s financial management system to embezzle more than $45 million over an eighteen-month period. As a precondition to the resumption of aid, the donors required that the government not only implement financial management reforms but also fully prosecute the perpetrators and recover the stolen assets. The donors’ position solidified when audits of Malawian government ledgers from 2009 to 2014 could not account for $356 million.

This essay examines whether Malawi’s Anti-Corruption Bureau (ACB) has the institutional capacity to achieve the prosecutorial benchmarks set by Western donors. Despite the obstacles inherent in an overstretched and underfunded criminal justice system, the ACB has made some progress, with fifteen convictions on theft and money laundering charges, and $1.4 million in cash and property recovered. Yet, as this essay observes, the quest to secure convictions and recover assets in the more complex cases of senior officials will become quixotic unless the government provides the ACB with sufficient independence, authority, and resources. Lacking ACB operational success, donors seem disinclined to resume direct budgetary support to Malawi. And as Western countries retract, China moves in, extending its influence.


by Wee Jin Yeo

The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used exclusively overseas, if it has achieved a measure of renown in the United States. However, until now, it remains uncertain whether the doctrine is part of United States federal trademark law, given the split between the Ninth and the Second Circuits on the issue.

On March 23, 2016, the Fourth Circuit handed down the decision of Belmora LLC v. Bayer Consumer Care AG, which protected foreign marks neither registered nor used in the United States.

This Article takes this timely opportunity to revive the debate on the applicability of the well-known marks doctrine in trademark law. Analyzing the Fourth Circuit’s decision, this Article argues that it provides a useful insight on how the circuit split should be resolved, but cautions future courts not to mechanically apply the Fourth Circuit’s decision.


by Colin Miller

On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer this question in the affirmative without overturning precedent holding that the U.S. government can unilaterally impose the Federal Death Penalty Act in Puerto Rico. In other words, the Court cannot deprive Puerto Rican citizens of the protection of the Double Jeopardy Clause unless it adopts the concept of popular sovereignty.


by Carl Tobias

In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to join Democrats who opposed the prospect and concomitantly adjourned. GOP leaders then contended that legislators remained in session, as the Virginia Constitution explicitly prescribes Senate and House of Delegates consent to adjourn. The Governor’s Counsel next penned an opinion that concluded that lawmakers had adjourned, so McAuliffe could appoint Justice Roush to the Court again, a choice that he implemented thirty days after adjournment. Because these efforts precipitated a constitutional standoff and will consequently plague future judicial selection, they warrant analysis.

The initial part of this Article chronicles the rise and evolution of Virginia court selection. Part Two scrutinizes recent machinations, determining that the procedures now merit improvement. The last section proffers suggestions. For the near term, the Assembly ought to promptly elect Roush. She brings twenty-two years of judicial service, including over five months as a justice. Moreover, Roush’s removal for reasons unrelated to her abilities, earlier performance, or future capacity to serve would make a mockery of the selection regime, undermining citizen respect for it, the whole state judiciary, as well as the Governor and the Assembly. Across the longer term, the Commonwealth must evaluate and initiate changes that will enhance selection.


by Ryan H. Nelson

The Equal Employment Opportunity Commission in Baldwin v. Foxx opined—for the first time—that employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. This Article tackles the two administrative law questions that Baldwin poses: what level of deference should a court afford Baldwin, and should such deference force that court to overturn precedent holding that sexual orientation discrimination lies beyond the purview of Title VII?

First, after the Supreme Court’s opinion in Barnhart, lower courts have split on whether Chevron Step Zero should be governed by the rule-of-law test announced in Christensen and Mead, or whether Barnhart’s five-factor test provides a new standard for this inquiry. This Article explains why the Christensen/Mead rule-of-law test should govern Chevron Step Zero; why that test dictates that courts should analyze Baldwin under the deference test announced in Skidmore, not Chevron; and why Baldwin consequently deserves de minimis deference.

Second, the Supreme Court’s opinion in Brand X held that judicial interpretations of ambiguous statutes must be overturned in the face of subsequent, contrary agency interpretations that would have earned Chevron deference but for stare decisis. Yet, no exception to stare decisis exists when an agency interpretation of an ambiguous statute earns mere Skidmore deference. This Article examines such a potential exception, concluding that stare decisis should trump agency interpretations of ambiguous statutes, Skidmore deference notwithstanding.

This Article concludes that Baldwin is far from a watershed moment for LGBT workplace equality. Rather, the courts—which have almost uniformly held that employment discrimination based on sexual orientation does not violate Title VII—should uphold such decisions despite Baldwin and the meager Skidmore deference it earns. Indeed, congressional action remains the only way to ban employment discrimination based on sexual orientation on a national scale.



by David H. Kaye

For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners exceeded the limits of science in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI faked an entire field of forensic science, placed pseudoscience in the witness box, and palmed off virtually worthless and scientifically indefensible evidence as scientific truth.

This essay disputes these interpretations of the 90+% figure. Based on some of the scientific literature on hair comparisons, the public descriptions of the hair review project that have emerged, and some of the confessions of scientific error that the FBI has issued, it reaches three conclusions: (1) associating two hairs by their physical features can be slightly probative of whether they originated from the same source; (2) the hair review project does not bear on the validity of these associations or the quality of the examinations; rather, it is supposed to flag cases in which examiners have overstated the power of a match to identify the source of the trace evidence; (3) some questionable determination have been issued, and the 90+% figure may not be a valid and reliable measure of overclaiming.

To promote a more complete understanding of the nature and extent of overclaiming, the review process should be made more transparent, and the materials it produces should be readily available for researchers and the public to study. New state or local evidence reviews should be designed with these concerns in mind. Finally, in all areas of forensic science, clear standards for presenting identification evidence without overclaiming should be devised, and training and monitoring programs should be implemented to ensure that laboratory personnel and prosecutors adhere to them.


by Victor Williams

In March 2015, the debt ceiling was hit again and sovereign default loomed. Refusing to timely raise the debt ceiling, congressional ideologues have four times pushed our nation to the brink of a catastrophic debt default in as many years. Our struggling economy is again threatened, financial institutions are again spending millions planning for default, and vulnerable citizens are once again worrying about their benefit payments. Enough is enough.

This Essay argues that nationwide bondholder litigation can void the unconstitutional debt ceiling, and it presents the first litigation in that effort. (Williams v. Lew, No. 15-1565, U.S. Court of Appeals – D.C. Circuit). The Constitution guarantees not only that public debt will remain valid, but also that the integrity of those obligations will never be so much as questioned by our nation’s government. The debt limit statute, facially and as-applied, violates the Fourteenth Amendment’s Public Debt Clause and the Fifth Amendment’s Due Process Clause. Bondholders have standing to challenge the unconstitutional statute as they suffer economic and noneconomic injuries resulting from the degradation of their investments’ uniquely low-risk profile and monetary value. These injuries manifest as both current harm and certainly-impending future harm.

In the NAACP and ACLU’s tradition of “test cases,” the author’s litigation is prosecuted with modest-success expectations, but with strong determination to prompt future litigation by others. The Justice Department has already exposed a defense strategy based on combining Tea Party default-denial delusion with Clapper v. Amnesty International standing hurdles.

The Essay pleas for state sovereigns and institutional bondholders (with alternative standing allegations) to initiate additional litigation. Public interest law firms, such as the National Chamber Litigation Center and the Constitutional Accountability Center, are challenged to lend support. As bond buying has been since the Republic’s founding, this litigation effort is a necessary act of economic patriotism.