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Washington and Lee Law Review - Online Edition

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Pardon Me Please: Evaluating Clemency for Marijuana Offenders

by Mitchell F. Crusto

Since 2012, several states and municipalities have decriminalized the non-violent use and possession of small amounts of recreational marijuana by adults. These criminal law reforms raise the issue of whether individuals who were convicted in the past should be exonerated retroactively by way of pardons or clemency. Consequently, many past marijuana offenders remain in state prisons for committing acts that are no longer deemed illegal in many states. Furthermore, these prisoners, as well as persons who were formerly accused or imprisoned, suffer from the stigma and negative collateral consequences of their alleged criminality. In response to these injustices, many governors have granted clemency to a broad group of such past offenders. Despite those governors who have granted clemency, there are other governors who want to grant such clemency but have not been able to do so. This raises the quintessential question: “Why have some governors been successful at granting clemency and others not so?” To answer that question, we need to analyze the legal issues and practices surrounding clemency for past offenders of the simple possession of marijuana.

This essay presents a qualitative study that examines various states based on their governors’ ability to pardon individuals convicted of past marijuana offenses. It provides observations and recommendations to improve the clemency process. This study concludes that for true restorative justice to redress the misplaced War on Drugs, state governments should amend, where necessary, their clemency laws to empower the governor of each state to pardon former offenders of the simple, non-violent possession of marijuana.

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Note

Cultivating Legal Protection: Replacing Wine Labeling Regulations with Regional Certification Marks

by David Corasaniti

While wine labeling in the United States is currently governed by a complex regulatory framework administered by the Alcohol and Tobacco Tax and Trade Bureau (“TTB”), intellectual property (“IP”) rights for wine producing regions could serve this core function of protecting consumers better and more efficiently. Regulating wine labeling through IP would more closely mirror the system used by the European Union, which recognizes Geographical Indications, such as Champagne, Rioja, and Bordeaux, as a unique form of IP. By deregulating American wine labeling, and encouraging wine producing regions to assert their IP rights in the form of collectively held certification marks, (1) vintners will be free to define the standards for their own regions, (2) the force and effect of these standards will be increased extraterritorially, (3) the cost of enforcement for these standards will be shifted from the public sector to the private sector, and (4) there will be widespread economic benefits for many geographic regions in the form of tourism and regional growth.

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Article

The Impact of Erlinger v. United States on State Recidivist Sentencing Laws

by Chad Flanders

In Erlinger v. United States, the United States Supreme Court ruled that finding that an offender had committed two felonies “on separate occasions” under the Armed Career Criminal Act had to be done by a jury, not a judge. In one respect, the decision is narrow: it is an extension of the Court’s Apprendi jurisprudence. But in another respect, the decision is far-reaching. As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge—rather than the jury—the power to decide whether someone is a “persistent” or “habitual” offender based on whether a defendant’s felonies occurred at “different times” or on “separate occasions.” This Article is a call for lawyers and scholars to pay attention to Erlinger. It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.

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Article

Saving Private Unfaithful: An Argument for Administrative Separation and Action in Lieu of Criminalizing Extramarital Sexual Conduct

by Annelise Burgess

In order to keep America’s armed forces deadly, ESC must be decriminalized. The MCM’s 2019 update to start including non-heterosexual marriages and affairs tragically expands the reach of ESC. This Note presents new data on charging patterns of ESC in the Marines, highlighting the crime’s active use. ESC continues to overcompensate for behavior prejudicial to good order and discipline or service discrediting; this overcompensation results in subjecting non-prejudicial and non-service-discrediting behavior to criminal action, simultaneously infringing on service members’ constitutional rights and serving as fodder for public outcry. Military leaders should decriminalize ESC and alternatively penalize the behavior by administrative action or Administrative Separation. It’s time to save Private Unfaithful.

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Development

Litigating Vertical Mergers: Innovation Dynamics from Illumina-Grail

by Aurelien Portuese

Illumina-Grail represents an important moment in antitrust litigation, reshaping the legal landscape for vertical mergers in innovation-driven markets. This Article analyzes the Federal Trade Commission’s uncommon achievement in blocking the Illumina-Grail merger—a ruling sustained by the Fifth Circuit Court of Appeals—emphasizing its significant ramifications for antitrust legislation. The case examines the complex dynamics of innovation competition and emerging market definition, challenging established doctrines regarding the inherently procompetitive nature of vertical mergers. This Article examines the changing criteria for defining relevant markets and evaluating competitive harm in research and development-oriented industries. It also discusses the Fifth Circuit’s support of the FTC’s strategy, including the controversial dismissal of Illumina’s suggested remedies and efficiencies. To be sure, Illumina-Grail highlights the increased scrutiny on vertical mergers, as they are instrumental in shaping a given innovation policy but also market dynamics and the burden-shifting framework in antitrust litigation.

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Note

Cross-Examination and the Right to (College) Education: An Analysis of the Substantive and Procedural Rights

by Spencer Thomas

If the marketplace of ideas provides the basis for our growth and self-determination as a society, college campuses are the factories in which those ideas are cultivated, tested, and manufactured. Equally important, they are often the chief mechanism by which individual students are given the tools to meaningfully participate in the political process, in civic and social institutions, and the ability to chart socially mobile and economically independent lives.

Yet federal courts have never recognized a student’s liberty interest in their education. Adopting a framework initially posited by Professor Matthew Shaw, this Note advocates that students retain a substantive due process property interest in a post-secondary education. Next, the Note addresses an equally compelling issue: once a student’s property interest in her education has been recognized, what procedural protection does a university owe her when adjudicating an allegation of some non-academic misconduct? The Note specifically argues in favor of an accused student’s limited right to cross-examination.

Applying existing theory and current caselaw, the solutions reconcile a student’s property interest under one single doctrinal framework and provide a uniform set of procedural rules universities should follow in determining whether the student’s interest in remaining in school should be forfeited. The Note provides both students and their universities with a more stable, more predictable procedure for vindicating individual student rights and protecting education institutions as a whole.

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Development

A Constitutional Mandate to Adopt AVs

by Kevin Frazier

The rapid advancement of autonomous vehicle (“AV”) technology presents a unique opportunity to enhance public safety by drastically reducing road fatalities. Despite significant private sector investment and demonstrated improvements in AV performance, public adoption and integration remain hindered by regulatory gaps and societal skepticism. This Article argues that the federal government has an affirmative obligation, rooted in the doctrine of a right to effective government, to champion the adoption of technologies like AVs that meaningfully promote the general welfare.

Drawing on the Preamble’s mandate to advance the general welfare and lessons from the transition from the Articles of Confederation to the Constitution, this Article situates the government’s responsibility within the historical and theoretical framework of effective governance. It introduces a three-pronged framework to evaluate when and how the government should intervene to advance technologies that may provide public goods like AVs. Applying this framework, the Article concludes that federal inaction on AVs undermines traffic safety, environmental goals, and economic equity. By setting nationwide AV regulations and facilitating public exposure to AV technology, the federal government can fulfill its constitutional duty to advance public welfare. This analysis not only addresses AVs as a case study but also provides a foundational approach for evaluating governmental obligations to emerging technologies.

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Development

Stitch Incoming: Lindke v. Freed’s Impact on Social-Media-Blocking Litigation

by Clare R. Norins & Mark L. Bailey

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining when a public official engages in state action on social media sufficient to support a constitutional claim under 42 U.S.C. § 1983. Lindke v. Freed clearly (and correctly) establishes that public officials can act in their official capacity when operating a personal social media account. The Court’s default presumption in the second prong of the test, however, improperly allocates the burden of proof to private citizens in close cases to prove whether the government official subjectively intended her social media speech to be personal or official. As we show, this part of the decision is out of step with the Court’s state-action precedent and will lead to unacceptable chill and restraint of protected speech. We therefore introduce a revised standard—an objective “reasonable viewer” approach—that is more in line with long-standing First Amendment principles, which we urge the Court to adopt in future cases.

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Note

New, Derivative: Third-Party Litigation Finance and Derivatives Regulation

by Martin Flores

Litigation finance is globally abundant and largely unregulated in the United States. The mechanics behind third-party litigation finance are simple: The funder fronts litigation costs in exchange for a promised share of the proceeds if the litigant succeeds. While the normative debate about the value of these contracts in society endures, the litigation finance industry has new players in hedge funds and other opaque investment firms seeking high returns from risky litigation. Many scholars agree on whether to regulate these third-party litigation finance firms. The key debate rages on how to rein in an unbridled industry.

To add to this debate, this Note theorizes a standard third-party litigation finance contract as a derivative contract—a financial instrument that derives value from the performance of an underlying asset. This novel approach examines the structure and features of third-party litigation finance arrangements, particularly in commercial and mass-tort contexts, and argues for their classification as derivatives within the regulatory framework of the Commodity Futures Trading Commission (“CFTC”).

By framing litigation finance contracts as derivatives, this Note proposes a regulatory solution that leverages existing financial structures rather than creating new oversight bodies or legislation. Rather than envisioning a new oversight body or legislation for this type of finance, this Note advocates that the United States leverage its existing financial structures to guide this escalating industry forward while maintaining market integrity. It is high time for regulation of the third-party litigation finance (“TPLF”) industry, and this Note provides a potential solution to a growing regulatory conundrum: using existing tools of financial regulation to address a new problem.

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Note

Generative Artificial Intelligence and Copyright in the Film and Media Industry

by Victor A. Oberting IV

The development of generative artificial intelligence (“GAI” or “generative AI”) introduces compelling benefits and capabilities to filmmakers and artists, but also brings complications regarding copyright of creative works. The American film and media industry in particular illustrates the scope of GAI’s legal, economic, and ethical implications. Though GAI may exhibit characteristics of independent agency or intent, GAI models are best understood as a new set of tools that serve a diverse range of applications in the creative process. The potential benefits of this set of tools can only be realized, then, if the filmmakers who use them are not unreasonably denied the authorship and ownership rights necessary to capitalize on their works. Copyright law can fulfill its utilitarian purpose in the context of the film industry with a balance of practical authorship requirements and dynamic licensing regimes for AI-assisted works. Through the right combination of legislation, policy, and best practices, copyright law can further facilitate the effective implementation of GAI in film and media while also recognizing its relevant challenges and risks.

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