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Washington and Lee Law Review - Online Edition


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.


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.



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.


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.


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.


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.


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.


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.


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.