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Washington and Lee Law Review - Online Edition

Development

by Margaret Ryznar

Invaluable guidance has emerged regarding online teaching in recent years, but less so concerning online and take-home final exams. This article offers various methods to administer such exams while maintaining their integrity—after asking artificial intelligence writing tool ChatGPT for its views on the matter. The sophisticated response of the chatbot, which students can use in their written work, only raises the stakes of figuring out how to administer exams fairly.

Note

by Shanelle Doher

Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially disrupts or interferes with school activities. However, prior to 2021, the Court had never directly addressed whether a school’s capacity to sanction speech extended off campus. This changed with Mahanoy Area School District v. B. L., where the Court implemented a heightened Tinker standard for off campus speech, indicating some hesitation to extend school authority to cyberspace.

As monumental as the decision is, it is unlikely that Mahanoy will do much to safeguard professional students’ First Amendment rights. In the fifty years following Tinker, the Supreme Court has consistently denied certiorari in cases involving professional student speech, whether on or off campus. In the absence of such guidance, appellate courts have struggled with how and to what extent to apply Tinker and its progeny to professional programs. This has led to inconsistent judicial approaches—almost all favoring universities—that provide professional students with little guidance or reassurance in the strength of their constitutional rights.

This Note argues that courts have failed to protect professional students’ First Amendment speech rights, both on and off campus. The method by which appellate courts have analyzed and applied these doctrines suggests that bad facts are creating bad, or at least incomplete, law. By carefully examining student speech doctrines before exploring professional student speech decisions, this Note asserts that appellate courts have performed relatively cursory reviews of Tinker and its progeny, resulting in misrepresentations of the Supreme Court’s precedent. However, this Note proposes that this is an avoidable outcome that careful, rhetorical analysis of Supreme Court precedent can rectify. When properly analyzed, student speech doctrines should provide a sufficient basis to reliably evaluate professional student speech, so long as courts consider the special characteristics of the professional school environment.

Development

by Mark T. Wilhelm & Danielle Clifford

Beginning in March of 2020, public companies in the United States were forced to take unprecedented measures to observe corporate formalities while following the government-mandated health and safety measures resulting from the COVID-19 pandemic. Those measures made in-person activities and meetings either incredibly challenging or, in certain jurisdictions, illegal. Because “proxy season,” the time when public companies typically hold their annual meetings of stockholders, followed shortly after the mass implementation of COVID-19 lockdowns and quarantines, public companies that had historically held these meetings in-person were left scrambling to find an alternative means to meet. Nearly overnight, the pandemic caused an explosive transition from in-person annual meetings to virtual annual meetings. This article examines that trend, both qualitatively and quantitatively.

More specifically, this article presents the results of primary research that quantifies the prevalence of virtual annual meetings before, during and (depending on one’s view of the current state of affairs) after the height of the COVID-19 pandemic. The results are offered using a series of different metrics to provide a comprehensive picture regarding the sudden transition and theorizes a new normal in one of the most important investor-relations tools available to public companies.

Note

by Charisma Hunter

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the United States Constitution during the Constitutional Convention in 1787. During the period of Reconstruction in 1868, the Fourteenth Amendment was ratified to remedy racial injustices and to provide Black people with equal protection under the law.

The Supreme Court’s jurisprudence on whether the Fourteenth Amendment’s Due Process Clause selectively incorporates basic freedoms and rights outlined in the Bill of Rights is nearly incomprehensible. For example, the Supreme Court, in a piecemeal fashion, has found that the Due Process Clause of the Fourteenth Amendment should be construed to require police and the judiciary to acknowledge and respect basic rights found in the amendments, such as the Fourth and Eighth Amendments. Yet, for over fifty years after the ratification of the Reconstruction Amendments, the Court refused to acknowledge that the Due Process Clause was designed to protect the rights of individuals against the state.

The Black Fourth Amendment will repair and remedy the discriminatory policing of Black bodies. The Black Fourth Amendment will repair and remedy the Court’s Fourth Amendment jurisprudence by creating a rebuttable presumption, making prosecutors and the state prove that the officer had an actual reasonable suspicion or probable cause basis to arrest a Black person, instead of mere subjective ideas and preconceived notions. Through this measure, the Black Fourth Amendment will carry out what the Fourteenth Amendment’s enigmatic Due Process Clause was intended to do—to incorporate substantive due process rights, such as those rights outlined in the Fourth Amendment, and to guarantee equal protection to Black people through the Fourteenth Amendment’s Equal Protection Clause.

Note

by Molly E. O'Connell

The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without a marijuana breathalyzer or reliable Field Sobriety Tests, law enforcement officers are forced to find another way to determine impairment. Searching the vehicle for evidence of recent marijuana use can be an attractive option. However, the Fourth Amendment prohibits “search first, find probable cause later” policing. A roadside vehicle search violates a driver’s Fourth Amendment rights if sufficient evidence of impairment is lacking. Until law enforcement can reliably determine marijuana impairment at the roadside, drivers need protection from these unconstitutional searches. This Note addresses how states can disincentivize potential Fourth Amendment violations.

To provide context for this discussion, this Note begins by outlining the history of marijuana’s legal status and summarizing the relevant Fourth Amendment case law. Next, it contrasts the challenges of determining marijuana impairment with the relative ease of testing for alcohol impairment during motor vehicle stops. This Note then presents case studies of three states that each have a distinct legal approach to determining marijuana impairment amongst drivers. Finally, this Note provides prescriptive recommendations for states that have legalized or plan to legalize marijuana. Ultimately, this Note provides the reader with a primer on an important legal issue: how the inability to reliably establish marijuana impairment during a traffic stop creates an incentive for the police to search the vehicle first and find probable cause later.

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.

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