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Washington and Lee Law Review - Online Edition


by Carl Tobias

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in 113 appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of ethnic-minority, LGBT, and female nominees rather swiftly arose, even though the administration is relatively nascent. Because when Trump captured the White House he pledged to serve as the President of all U.S. citizens, because diversity has great significance, and because the 140 current lower court vacancies provide an exceptionally rare opportunity, the striking paucity of minority representation in Trump’s federal court nominees deserves evaluation.
The initial section of this piece surveys why increased diversity is essential, detecting that improved minority representation enhances the quality of court opinions, confines ethnic, sexual-preference, and gender biases which undermine justice and expands public confidence in the judiciary. The segment also reviews how modern Presidents have addressed diversity when nominating and confirming jurists. The second part considers the record which the Trump White House has assembled, finding that it compiled the weakest one since President Ronald Reagan served when substantially fewer people of color, LGBT individuals or women were practicing lawyers. The third section analyzes the record’s consequences. Because the Trump presidency only commenced in 2017 and the executive has considerable time for treating this dearth, the final segment provides recommendations which might help place numerous minority, LGBT, and female jurists on the federal courts.


by William D. Araiza

This Response considers Evan Zoldan’s argument, set forth in his recently-published Article, that one can find a coherent principle underlying the vexing case of United States v. Klein in the idea that government is prohibited from what Zoldan calls “self-dealing.” The promise is a seductive one: Klein, and in particular its language prohibiting Congress from dictating “rules of decision” to courts, has puzzled scholars for generations. As Zoldan explains, other understandings of Klein all encounter significant obstacles in the form of precedent that rebut other explanations of what that case really means.

Unfortunately, Zoldan’s valiant and careful effort encounters serious difficulties of its own. His self-dealing prohibition arguably conflicts with an early post-Klein case, Eslin v. District of Columbia, and conflicts even more seriously with the Court’s most recent case to consider Klein, Patchak v. Zinke, which was decided after Zoldan published his article. There is also reason to question the practical workability and conceptual coherence of the self-dealing prohibition Zoldan offers.

But Patchak also offers hope for those, like Zoldan, who see worth in the possible normative values implicit in Klein. Patchak featured a not-insignificant line-up of justices who expressed sympathy with a meaningful reading of Klein as a limit on Congress’s power to legislate in hyper-specific ways and ways that leave no role for judicial analysis. Ironically, then, while Patchak calls into serious question Zoldan’s solution to the Klein puzzle, it also offers hope that the Court might eventually embrace a more meaningful Klein principle.


by Thomas M. DiBiagio

A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct, culpable targets often are able to insulate themselves from the underlying criminal conduct and thereby, frustrate the prosecution’s ability to meet this evidentiary standard. The resulting impunity undermines the public’s trust and confidence in the fundamental fairness of the enforcement of the criminal laws.

This Article asserts that the facilitation theory of prosecution can be used to extend the limits of the mail and wire fraud statute to capture culpable targets for financial crimes and corporate corruption. Under the facilitation theory, a defendant culpably participates in criminal conduct when he knowingly acts to influence, enable, further, or conceal the criminal conduct.

Although there are no legal barriers to bringing financial crimes and corporate corruption in full view, it is acknowledged that there are substantial factual challenges. These cases often involve complex fact patterns and shifting narratives. Nevertheless, the interest of justice compel a persistent effort by prosecutors to establish real consequences for facilitating corporate criminal conduct.


by Benjamin M. Flowers

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional-doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.


by Wendy Gerwick Couture

In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons, application of the securities laws would stifle creativity within this innovative space. This Response proposes a reframing of the Howey test as a response to the risk of regulatory arbitrage, argues that the context clause should only exclude transactions that do not pose such a risk, contends that transactions in virtual space do pose a risk of regulatory arbitrage, and thus concludes that these transactions should not be excluded from the securities laws. In recognition of Professor Chaffee’s compelling argument that securities regulation would hinder creativity within this burgeoning area, this Response argues for a new exemption from registration that would further the policy goals of the securities laws while not stifling innovation in virtual space.


by Michael F. Dearington

Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort those very same shop owners in violation of the Hobbs Act. The corollary is that a shop owner can, in theory, conspire to extort himself. If a shop owner can conspire to extort himself as a matter of law, why can’t a bribe-taking foreign official conspire to bribe himself in violation of the Foreign Corrupt Practices Act (“FCPA”)? This Article posits that, under Ocasio’s flawed holding, and contrary to the oft-cited Fifth Circuit decision, United States v. Castle, 925 F.2d 831 (5th Cir. 1991) (per curiam), he probably can.