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Washington and Lee Law Review - Online Edition

Development

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.

by M. Claire Flowers

Multiple federal courts have recognized and applied the inevitable disclosure doctrine in cases brought by employers against former employees under the DTSA. The inevitable disclosure doctrine allows a business to temporarily enjoin the new employment of a former employee by a competitor on the theory that the employee learned confidential information while working for that business which the employee cannot possibly forget or refrain from relying on during her employment with the competitor. The application of this doctrine under the DTSA is controversial for two reasons. First, some states refuse to recognize the inevitable disclosure doctrine due, in part, to its restrictive effect on labor mobility. Secondly, the application is controversial because some practitioners thought that the language of the DTSA preempted the application of this doctrine at the federal level.

Roundtable

by Ian Huyett

This Essay responds to comments by Samuel Calhoun, Wayne Barnes, and David Smolin, made as part of a roundtable discussion on Calhoun’s symposium address Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics. In Part I, I discuss current events, especially as they pertain to Smolin’s comments. In Part II, I answer Calhoun’s challenges to my own response. In Part III, I criticize Barnes’s response, which was diametrically different from my own. In Part IV, I draw on Smolin’s observations to discuss the path forward for Christians in the current climate.

Roundtable

by Wayne R. Barnes

This symposium has revolved around Professor Calhoun’s article, which posits that it is completely legitimate, in proposing laws and public policies, to argue for them in the public square based on overtly religious principles. In my initial response, I took issue with his argument that no reasons justify barring faith-based arguments from the public square argument. In fact, I do find reasons justifying the prohibition of “faith-based,” or Christian, arguments in the public square—and, in fact, I find such reasons within Christianity itself. This is because what is being publicly communicated in Christian political argumentation is that if citizens comply with certain laws being proposed (i.e., they behave in the legally-argued way), it will cohere with Christian principles, and thereby gain them favor with God. Or, more simply, “if I do these things, it will please God.” This “works-based” favor with God is a completely incorrect view of orthodox Christian doctrine, which subscribes to salvation by faith alone. Christian-based political argumentation runs counter to the Christian gospel, because it gets itself tangled up into law, or works, as something that can be done in order to gain greater favor with God. It is, in fact, at odds with the Gospel. Professor Calhoun, in his reply to my article, has availed himself of this opportunity to demonstrate why his views on overt Christian political advocacy have changed since first holding a position similarly to mine over twenty-five years ago, and that he now believes Christian theology poses no problem to the advocacy he promotes. His first argument is that such advocacy will be seen not as promising eternal favor with God, but merely the staving off of immediate calamity or judgment from God in this life; I question whether this is how such advocacy will be perceived, but caution that this message, too, is quite probably wrong, as well. His second argument is that laws make man conscious of sin and can indeed bring one to faith in God; I point out that the scriptures on consciousness of sin are referencing the Mosaic law handed down directly by God through Moses, not secular laws passed by secular states. His third argument is that God actually decrees good works or behavior by Christians as part of a missional plan to reach unbelievers for the faith; however, I point out that what is sought from the unbelievers is not the replication of the observed works (as is the case with decreed secular law), but rather an encouragement to come to genuine faith in God. I conclude by remaining convinced that overt Christian political argumentation, in Christian terms, is more harmful than beneficial.

Roundtable

by Samuel W. Calhoun

This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that they strengthen the case for the appropriateness of religious arguments in the public square. Part III evaluates Wayne Barnes’s contention that Christian doctrine requires separating religion from politics.

Development

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.

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.

Roundtable

by Ian Huyett

In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.

Response

by Christopher W. Schmidt

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.

Roundtable

by David M. Smolin

Political and philosophical theorists have often advocated for the exclusion of some or all religious perspectives from full participation in politics. Such approaches create criteria—such as public accessibility, public reason, or secular rationale—to legitimate such exclusion. During the 1990s I argued, as an evangelical Christian, against such exclusionary theories, defending the rights to full and equal political participation by evangelical Christians, traditionalist Roman Catholics, and any others who would be restricted by such criteria.

 

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