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Washington and Lee Law Review - Online Edition

Development

by Charles L. Slamowitz

This article takes an approachable, forward-thinking, and academic dive into congressional insider trading in the wake of the coronavirus (COVID-19) pandemic. After a confidential briefing by the Senate Health Committee warned of COVID-19, massive stock sell-offs by members of Congress and their spouses suddenly ensued. Some senators even publicly disparaged COVID-19’s viral effects while their own shares were being offloaded. By the time the American people were made aware of its dangers, vast investment holdings by congressional insiders had already been sold. Shockingly, it is unclear if congressional insiders trading on confidential coronavirus information are actually breaking the law. Congress members are also not required to timely disclose trades, even during pandemics, leaving the American people in the dark. This article provides the only viable remedy to congressional insider trading, crucial for governmental transparency and accountability to precipitously curb public health crises moving forward.

Roundtable

by Shaakirrah R. Sanders

I join Carliss Chatman’s call to fully consider the equal protection implications of the conception theory and raise an additional right to which a fetus may be entitled as a matter of equal protection: health care, which implicates state laws that provide civil and criminal exemptions to parents who choose religious healing instead of medical care for their children and minor dependents. The evidence of harm to children from religious healing is well documented. Yet, currently, approximately forty-three U.S. states and the District of Columbia have some type of exemption to protect religious healing parents in civil and criminal cases.

Religious healing is the belief that “prayer” or “spiritual means” rather than modern medicine can cure individuals. Criminal exemptions apply to prosecutions for murder and homicides, child abuse, child endangerment, child neglect, contributing to neglect or deprivation, criminal injury, cruelty, delinquency, failure to provide medical and surgical attention, failure to report suspected child neglect or abuse, manslaughter, nonsupport, and omission to provide for a child. Civil exemptions apply to claims for child abuse, child neglect, contributing to neglect, dependency proceedings, failure to provide medical care or adequate treatment, failure to report, maltreatment, negligence, nonsupport, and temporary or permanent termination proceedings.

Development

by Robert Gatter & Seema Mohapatra

As states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to stop the spread of coronavirus, wearing masks can be seen as a form of solidarity and desire to not infect others. Similarly, not wearing a mask can also be a political statement of sorts. Additionally, black men wearing masks have reported being asked to leave stores and fearing for their own safety. This Article provides an overview of the legal and policy landscape and focuses on the potential for policing against black Americans when mask mandates are in place. Despite the public health benefits of mask usage, due to mask mandates likely being enforced discriminatorily, we advise caution against mask mandates.

Development

by Stephen E. Smith

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific circumstances. This Article proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

Response

by Allison Weiss

In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts it, to “cop-out” from engaging in difficult constitutional inquiries and instead dispose of the case by invoking the magical words: “the law is unclear.” Over the past thirty-five years, the Supreme Court has decided many qualified immunity cases, never seriously signaling a desire to reconsider its qualified immunity precedent. However, with the Supreme Court’s current trend of overruling its prior decisions, we can hope that the Court’s flawed qualified immunity jurisprudence is next on the chopping block.

This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

Roundtable

by Helen M. Alvaré

It is pointless to approach Professor Chatman’s argument on its own terms (to wit, “tak[ing] our laws seriously,” or equal application across myriad legal categories of “full personhood” rights) because these terms are neither seriously intended nor legally comprehensible. Instead, her essay is intended to create the impression that legally protecting unborn human lives against abortion opens up a Pandora’s box of legal complications so “ridiculous” and “far-fetched” that we should rather just leave things where they are under the federal Constitution post-Roe v. Wade and Planned Parenthood v. Casey. This impression, in turn, is a tool to forward Professor Chatman’s personal preference for legal abortion—which she gives away by calling legal abortion by its political name: “the right to choose.”

But her arguments, sounding in law, about the alleged chaos to flow from a law protecting unborn human lives from abortion are false on the grounds of basic legal principles concerning federal constitutional and immigration law, as well as the legal principles underlying state legislation and statutory interpretation. I will set these legal principles out below before turning to the more interesting and legally plausible matter of whether or not lawmakers should choose to take into account both the needs of pregnant women and the humanity of unborn life when crafting laws affecting both, whether the situation involves immigration, incarceration, or women’s need for financial support.

Roundtable

by Anthony Michael Kreis

Carliss Chatman’s If a Fetus Is a Person, It Should Get Child Support, Due Process and Citizenship brilliantly captures the moment America is in, where abortion rights hang in the balance as state legislators, like those in Alabama, Georgia, Ohio, and elsewhere clamor to embrace fetal personhood. But, as Professor Chatman illustrates, legislators have expressed no interest in the full logical extent of this policy or the rights that should attach to a fetus if their measures ultimately become effective. The article incisively demonstrates how fetal personhood is singularly focused on ending abortion in the United States and is gaining traction notwithstanding the fact that its advocates have not reasoned through the “unintended and potentially absurd consequences” of their policy positions.

The forces laboring to suppress reproductive rights are wielding axes against Roe v. Wade and its progeny, rather than scalpels to eat away at the fringe of abortion rights as states have attempted to do for decades. And all of this comes just years after similar attempts failed with some of the most conservative statewide electorates in the United States. The recent anti-reproductive justice sledgehammers lack nuance and are not fully reasoned through, as Professor Chatman illustrates, because these initiatives are about much more than abortion—they are about the fervor to consolidate counter-majoritarian power before a rapidly closing window of opportunity ends. Legislators and activists are engaged in social engineering unmoored from any popularly embraced social movement in a contentious moment in constitutional time.

Development

by Paul J. Larkin Jr.

State lawmakers should allow those graduates to receive a provisional license so that they can provide emergency medical care under the supervision of a licensed physician to help treat the ever-increasing number of COVID-19 patients we will see throughout the near future, or those patients who suffer from more common illness and injuries. Each level of government has its own peculiar responsibilities to address the COVID-19 pandemic. The states are responsible for licensing physicians who can treat the affected people. Each year, a large number of American and foreign medical school graduates do not find a residency position in the United States. Medical school graduates who have passed the qualifying examination have acquired a considerable amount of education and training during their medical studies, far more than physician assistants, nurses, military corpsmen and medics, and civilian paramedics or emergency medical technicians. They comprise a pool of talent that could be immensely useful in ameliorating the shortage of physician care throughout the country during the pandemic.

Note

by Luke Charette

This Note explores the reasoning and factors used by each of the federal circuits in deciding whether or not to uphold attorney-client privilege between the government and the lawyers representing it. After considering those factors, this Note argues that there should be a categorical rule that neither a state nor the federal government may invoke the attorney-client privilege in response to a criminal grand jury subpoena. To justify this conclusion, this Note outlines how current government attorney-client privilege case law, as well as the policy underpinnings of the privilege itself, dictate that a categorical rule is appropriate.

Development

by Scott R. Thomas & Mystica M. Alexander

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception to the PLCAA. In that case, families of the victims of the tragic Sandy Hook Elementary School shooting sought to hold those in the chain of distribution of the weapon used in the attack accountable for the harm that resulted from their “unethical, oppressive, immoral, and unscrupulous” marketing of that product. The court allowed this case to proceed on its merits.

This Essay addresses the court’s decision and its implications for lawsuits in other jurisdictions. More specifically, the authors believe that the court wrongly interpreted the PLCAA’s legislative history, reached an incorrect conclusion, and lit a path to the courthouse steps for other plaintiffs with similar claims in certain other jurisdictions.

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