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Washington and Lee Law Review - Online Edition


by Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that this is a difficult and complicated issue. It intersects with issues of constitutional law, theology, political theory, jurisprudence, philosophy, law and morality—and that’s just off the top of my head. As soon as one issue is addressed, twelve others raise their head and confound. I am also mindful that Professor Calhoun has been grappling with this issue for far longer than I have. I respect him and his thoughtful treatment of this issue immensely. Part of my trepidation in addressing this subject is that, as will be seen in this response, Professor Calhoun once held a very similar opinion on this issue as me. However, he has evolved beyond it, whereas I (to date) have not. The structure of this online symposium is that Professor Calhoun will have a chance to respond in writing to the points I make in this Article, and I will then have the opportunity to reflect and respond to his reply. I look forward to the exchange, and I know that I will be enriched for having participated in the dialogue.


by Julian Redmond Murphy

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the first scholarly treatment of this issue. Far from a purely academic exercise, the police use of FRT equipped body-worn cameras at public protests is sure to confront the courts soon. Many police departments have, or will soon have, body-worn cameras equipped with real time FRT and a number of police departments do not prohibit their members from recording public protests. Although primarily descriptive—exploring the state of current Fourth Amendment doctrine by predicting its application to a hypothetical scenario—this Comment has a normative subtext; namely, suggesting that First Amendment values can strengthen the Fourth Amendment’s protections against the tide of technologically enhanced mass surveillance.


by Rene Reyes

The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. Supreme Court in 2016. However, the guidance given by the Supreme Court in the Caetano litigation was far from unambiguous: it faulted the SJC’s reasoning without opining on the ultimate question of the ban’s constitutionality, thus leaving open the possibility that the statute could pass constitutional muster under an alternative analytic approach. This essay discusses what such an alternative approach might have looked like. Specifically, I suggest that the SJC could have upheld the statutory ban by emphasizing the relative rarity of stun guns as a preferred means of self-defense not only as a matter of founding era history, but also as a matter of contemporary reality. This sort of analysis would have allowed the SJC to distinguish stun guns from other weapons that have received constitutional protection in other cases, and would have been fully consistent with both the scope and limitations of the right to bear arms under the Supreme Court’s Second Amendment jurisprudence.


by Darrell A. H. Miller

William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts to protect that same class or right. Dignity helps explain the Court’s halting approach to Reconstruction Amendment enforcement power more generally – an approach in which constitutional versus unconstitutional legislation turns on seemingly insignificant regulatory distinctions. And dignity’s role in § 5 enforcement helps explain the efforts of gun rights advocates to portray themselves as disempowered and despised members of a subordinate class. Araiza has cogently broken down the complicated mechanics of the Court’s equal protection, substantive rights, and § 5 enforcement power jurisprudence, but it is notions of dignity that seems to drive this particular constitutional engine.


by Eve Hanan

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor Benjamin Edwards’ central argument in The Professional Prospectus: A Call for Effective Professional Disclosure—that attorneys should provide potential clients with a prospectus disclosing their performance historyapplies to criminal defense. I reject the proposition that most people charged with crimes would have better representation if they could choose their attorneys and, to that end, had adequate information about their attorney’s past performance. I conclude, instead, that the problem of inadequate criminal defense representation can be better remedied by improving the infrastructure for public defense.

Others have argued that large, state-wide public defender offices provide better representation than smaller public defender offices or systems in which private attorneys accept public appointments from the court because large offices can aggregate resources. This essay adds to the discussion of the benefits of large public defender offices in two ways. First, it argues that statewide public defender offices can be evaluated for effectiveness, allowing potential clients and the general public to assess the quality of representation they provide. Adequate information about the effectiveness of the large public defender offices can overcome a common mistake that potential clients make regarding criminal defense—that a private attorney is always more effective than a public defender.

Second, statewide public defender offices can use performance data and institutional processes to implement uniform structural and attitudinal changes that insure consistently excellent representation from all attorneys working in the office. The question of access to information about attorney performance is still relevant but should be reframed. It is not a question of how individual clients can evaluate individual attorneys, but of how the public sphere can use the information available to institutionalize excellence in public defense.


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.