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Washington and Lee Law Review - Online Edition

Development

The Right to a Public Trial in the Time of COVID-19

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.

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Response

The Unqualified Mess of Qualified Immunity; A Doctrine Worth Overruling

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 Circuit, 77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

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Roundtable

Personhood: Law, Common Sense, and Humane Opportunities

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.

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Roundtable

Under Ten Eyes

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.

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Development

COVID-19 and the Provisional Licensing of Qualified Medical School Graduates as Physicians

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.

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Note

In re Government Attorney-Client Privilege: A Categorical Rule to Settle the Issue

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.

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Development

Suing Guns Out of Existence?

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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Roundtable

Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics

by Samuel W. Calhoun

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.

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Note

If the Shoe Fits: Rethinking Minimum Contacts and the FSIA Commercial Activity Exception

by Jacqueline M. Fitch

This Note considers whether, under the direct effect clause of the FSIA commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity.

When United States citizens initiate legal action against a foreign entity, they face a significant jurisdictional obstacle—the Foreign Sovereign Immunities Act (FSIA). The FSIA provides a general grant of immunity to foreign states and their instrumentalities from United States court jurisdiction; however, it establishes a number of exceptions where a foreign sovereign’s acts are subject to adjudication in the United States. Prior to the FSIA, the United States exercised absolute sovereign immunity, leaving any citizen injured by foreign state action with no remedy. But increased international commerce during the twentieth century led to the application of a more restrictive interpretation of immunity and the adoption of the FSIA’s commercial activities exception. The commercial activities exception contains three clauses, each providing grounds for lifting a foreign state’s immunity when a state’s commercial act impacts the United States. This Note examines the third clause of the commercial activities exception—the “direct effect” clause. The direct effect clause provides an exception to the grant of immunity for “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” This note argues that recognizing foreign sovereigns as “persons” under the Due Process Clause is improper, and that reading a minimum contacts test into the direct effect clause is contrary to the structure and intent of the FSIA commercial activities exception.

 

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Development

Discretionary Life Sentences for Juveniles: Resolving the Split Between the Virginia Supreme Court and the Fourth Circuit

by Daniel M. Coble

At the age of 17, Donte Lamar Jones shot and killed a store clerk as she laid down on the floor during a robbery. He was spared the death penalty by agreeing instead to die in prison at the end of his life.

Two years later in Virginia, 12 individuals were murdered for doing nothing more than being in the wrong place at the wrong time. Those individuals were killed by Lee Malvo and John Muhammad, better known as the “D.C. Snipers.” While John Muhammad was given the death penalty for his heinous crimes, Lee Malvo, who was 17 during the murder spree, was given a life sentence. What these two cases have in common is one issue: as juveniles they were both condemned to die in prison. What separates their cases is their legal challenges and how two different courts have ruled—one federal, one state. While the facts of their cases might be different, there are hundreds, if not thousands, of cases across the United States that reflect similar legal proceedings, and until the Supreme Court clarifies its position, more state and federal courts will reach different conclusions.

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