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Washington and Lee Law Review - Responses


by Alan Trammell, Samuel Calhoun, Ben Davis & Helen Alvare

The 2021 Supreme Court term created shockwaves by overturning Roe v. Wade, 410 U.S. 113 (1973). The Washington & Lee School of Law Federalist Society chapter brought together Professors Helen M. Alvaré of George Mason University Antonin Scalia School of Law, and Professors Samuel Calhoun, Alan Trammell and Ben Davis of Washington & Lee School of Law to discuss the far-reaching ramifications ofDobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022). The panel was moderated by Haley Carter ‘24L, the W&L Federalist Society Vice President. Each panelist addressed aspects of the decision relevant to their areas of expertise. The discussion included how the Fourteenth Amendment could be used to create a right to life for the unborn, how Dobbs may alter any substantive due process cases and rights moving forward, how the law should consider women’s rights when women themselves are split on the issue of abortion, and how abortion restrictions could violate international human rights law. The product resulted in a diverse and balanced discussion of the Supreme Court’s decision last June.

To access the recording:


by Maya Chaudhuri

In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it is time to address this unconstitutional pattern of closures as courts grapple with their obligation to protect criminal procedural rights within a potentially long-term public health situation. This Response explains that following the Waller test as it was contemplated by the Supreme Court can and will vindicate defendants’ Sixth Amendment rights and the public’s First Amendment rights while protecting public health during the COVID-19 pandemic.


by David Wasserman

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much of their analysis, as well as with their conclusion that the “reserve approach” offers both a principled and practical compromise between these deeply embedded values. And until their article made me rethink the issue, I agreed with the authors that the “probability of survival” (PS) and “resource intensity” (RI) principles they see as presenting close calls were equally consequentialist, relying to the same extent on the tenacious appeal of the imperative to save the most lives when all cannot be saved.


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.


by Christopher W. Schmidt

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.


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 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 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 Kevin Barry & Bharat Malkani

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s roots in slavery, several state court judges have risen to the occasion, calling out the impermissible taint of bias that colors the death penalty. This Response suggests how the death penalty’s connection to slavery should inform death penalty jurisprudence and concludes with a discussion of the future of abolition, given a Supreme Court in flux.