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Washington and Lee Law Review - Student Notes

Note

by Shanelle Doher

Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially disrupts or interferes with school activities. However, prior to 2021, the Court had never directly addressed whether a school’s capacity to sanction speech extended off campus. This changed with Mahanoy Area School District v. B. L., where the Court implemented a heightened Tinker standard for off campus speech, indicating some hesitation to extend school authority to cyberspace.

As monumental as the decision is, it is unlikely that Mahanoy will do much to safeguard professional students’ First Amendment rights. In the fifty years following Tinker, the Supreme Court has consistently denied certiorari in cases involving professional student speech, whether on or off campus. In the absence of such guidance, appellate courts have struggled with how and to what extent to apply Tinker and its progeny to professional programs. This has led to inconsistent judicial approaches—almost all favoring universities—that provide professional students with little guidance or reassurance in the strength of their constitutional rights.

This Note argues that courts have failed to protect professional students’ First Amendment speech rights, both on and off campus. The method by which appellate courts have analyzed and applied these doctrines suggests that bad facts are creating bad, or at least incomplete, law. By carefully examining student speech doctrines before exploring professional student speech decisions, this Note asserts that appellate courts have performed relatively cursory reviews of Tinker and its progeny, resulting in misrepresentations of the Supreme Court’s precedent. However, this Note proposes that this is an avoidable outcome that careful, rhetorical analysis of Supreme Court precedent can rectify. When properly analyzed, student speech doctrines should provide a sufficient basis to reliably evaluate professional student speech, so long as courts consider the special characteristics of the professional school environment.

Note

by Charisma Hunter

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the United States Constitution during the Constitutional Convention in 1787. During the period of Reconstruction in 1868, the Fourteenth Amendment was ratified to remedy racial injustices and to provide Black people with equal protection under the law.

The Supreme Court’s jurisprudence on whether the Fourteenth Amendment’s Due Process Clause selectively incorporates basic freedoms and rights outlined in the Bill of Rights is nearly incomprehensible. For example, the Supreme Court, in a piecemeal fashion, has found that the Due Process Clause of the Fourteenth Amendment should be construed to require police and the judiciary to acknowledge and respect basic rights found in the amendments, such as the Fourth and Eighth Amendments. Yet, for over fifty years after the ratification of the Reconstruction Amendments, the Court refused to acknowledge that the Due Process Clause was designed to protect the rights of individuals against the state.

The Black Fourth Amendment will repair and remedy the discriminatory policing of Black bodies. The Black Fourth Amendment will repair and remedy the Court’s Fourth Amendment jurisprudence by creating a rebuttable presumption, making prosecutors and the state prove that the officer had an actual reasonable suspicion or probable cause basis to arrest a Black person, instead of mere subjective ideas and preconceived notions. Through this measure, the Black Fourth Amendment will carry out what the Fourteenth Amendment’s enigmatic Due Process Clause was intended to do—to incorporate substantive due process rights, such as those rights outlined in the Fourth Amendment, and to guarantee equal protection to Black people through the Fourteenth Amendment’s Equal Protection Clause.

Note

by Molly E. O'Connell

The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without a marijuana breathalyzer or reliable Field Sobriety Tests, law enforcement officers are forced to find another way to determine impairment. Searching the vehicle for evidence of recent marijuana use can be an attractive option. However, the Fourth Amendment prohibits “search first, find probable cause later” policing. A roadside vehicle search violates a driver’s Fourth Amendment rights if sufficient evidence of impairment is lacking. Until law enforcement can reliably determine marijuana impairment at the roadside, drivers need protection from these unconstitutional searches. This Note addresses how states can disincentivize potential Fourth Amendment violations.

To provide context for this discussion, this Note begins by outlining the history of marijuana’s legal status and summarizing the relevant Fourth Amendment case law. Next, it contrasts the challenges of determining marijuana impairment with the relative ease of testing for alcohol impairment during motor vehicle stops. This Note then presents case studies of three states that each have a distinct legal approach to determining marijuana impairment amongst drivers. Finally, this Note provides prescriptive recommendations for states that have legalized or plan to legalize marijuana. Ultimately, this Note provides the reader with a primer on an important legal issue: how the inability to reliably establish marijuana impairment during a traffic stop creates an incentive for the police to search the vehicle first and find probable cause later.

Note

by Halley Townsend

The Small Business Administration (SBA) was established by Congress to create and administer programs to help small businesses compete in the national economy. But far too often, large, sophisticated firms profit from SBA programs meant to assist the little guy. Currently, Congress legislates specific programs tailored towards one type of small business, and the SBA is responsible for implementing the program. This process has resulted in loopholes in the SBA’s enabling act that permit powerful businesses to qualify for SBA programs. This result is the opposite of what Congress intended.

Part II provides background and the history of the SBA. Part III then discusses four SBA programs in detail: the 8(a) Business Development Program for minority owned small businesses, the Service Disabled Veteran Owned Small Business Program, the 7(a) Business Loan Program, and the 7(b) Disaster Loan Program. Part IV exposes the loopholes in these four programs that, at best, enable large entities to profit and, at worst, facilitate outright fraud. Finally, to ensure that federal assistance programs intended for smaller businesses do not instead benefit larger entities, Part V proposes that Congress amend the Small Business Act to create a broad, enabling superstructure under which the SBA could both create and implement its own programs to assist small businesses.

Note

by Jordan S. Miceli

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction in custody proceedings and adoption proceedings, punishing both the victim mother who chooses to carry the pregnancy to term and the child born of rape. Although termination of parental rights is a civil matter, the Commonwealth currently imposes a criminal standard of proof on victim mothers.

Thus, this Note urges the adoption of the clear and convincing evidence standard in such termination proceedings. The current scheme debilitates a victim mother unable to secure a conviction against her rapist due to the unique and complex nature of the crime. The Commonwealth leaves the victim with no real choice in the matter: either abort the pregnancy and be free of her attacker forever, or carry the pregnancy to term and live in fear that her rapist will assert his parental rights over the child. The adoption of the clear and convincing evidence standard will help alleviate the life-altering harm facing a mother and child, and will ensure that all parties are given equal treatment under the law.

Note

by Matthew D. Kaminer

Every state has a statute that requires out-of-state corporations to register with a designated official before doing business there, but courts disagree on what impact, if any, those statutes can or should have on personal jurisdiction doctrine. A minority of states interpret compliance with their registration statutes as the company’s consent to general personal jurisdiction, meaning it can be sued on any cause of action there, even those unrelated to the company’s conduct in that state. The United States Supreme Court upheld this “consent by registration” theory over 100 years ago, but since then has manifested a sea change in personal jurisdiction jurisprudence that leaves its continued viability in limbo. Two decisions by the Court from the 2010s—Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman—drastically contracted the scope of contacts-based general jurisdiction but did not appear to address the contours of consent jurisdiction. The palpable discord makes it high time for the issue to reach the Supreme Court, as it has in the high courts of four states in 2021 alone.

So, the question remains: what is left of consent by registration? Many courts and scholars have rejected the theory, reasoning that a corporation cannot give valid, knowing consent to general jurisdiction by simply complying with a state business registration statute. This Note sets out to address these concerns; it suggests that, under certain legal frameworks—where either explicit statutory language or controlling decisional law makes clear to corporations the jurisdictional consequences of registration—corporations can indeed give valid, informed consent to general jurisdiction by registering to do business in the state.

Note

by Lucy Dempsey

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But does this divergent treatment constitute impermissible racial discrimination? Should the ICWA’s protections be applied to children merely eligible for tribal membership? What level of scrutiny should courts use when analyzing the ICWA’s constitutionality? This Note will provide insight into these questions which the U.S. Supreme Court has not yet addressed.

This Note provides a background of the ICWA and examines the current constitutional controversy in the Fifth Circuit by placing the ICWA in the larger statutory context of federal Indian jurisprudence. This Note analyzes the fundamental question raised in Indian law equal protection cases—whether the term “Indian” should be interpreted as a racial or political classification. An examination of precedent confirms the unique status of Indians as non-racial, semi-autonomous actors who often receive uncommon treatment. With this context in mind, this Note explores past equal protection challenges to the ICWA and lays out the current case. This Note recommends that the Supreme Court uphold the Fifth Circuit’s finding of constitutionality on the equal protection claim and provides two possible analytical paths to reach that conclusion. The first ascribes to the common argument that “Indian” should be viewed as a political classification, subject to reduced scrutiny. The second, however, questions the assumption that the application of strict scrutiny is fatal to the ICWA, instead proposing an alternative path forward drawing from Supreme Court reasoning in affirmative action cases. This Note concludes that future challenges to the ICWA should be struck down as the ICWA passes all levels of constitutional scrutiny.

Note

by Llewellyn Kittredge Shamamian

Over twenty years ago, in Leicester v. Warner Bros., the Ninth Circuit limited copyright protection for a certain sculptural complex located within a downtown Los Angeles high‑rise. The court determined that the sculpture, otherwise protected from pictorial reproduction, could be visually replicated without infringing on the artist’s copyright because it was part of its architectural context.

This Note explores two recent copyright cases where companies capitalized on painted street art, using the works as backdrops for social media advertising. The resulting litigation calls into question Leicester’s holding and the extent to which it may allow visual reproduction of non-sculptural works incorporated into architecture. This Note’s introduction addresses the rise of legal disputes in the street art community and the circumstances of these recent cases. Part II addresses fundamentals of domestic copyright law and the varied protection for certain forms of authorship. Part III discusses an important exception for the visual reproduction of architectural works and judicial application of the exception to disputes involving painted street art. Part IV argues that Leicester should not serve as the legal standard for all such controversies, and Part V articulates a clarified inquiry to limit judicial dependency on Leicester.

Note

by Chandler Gray

This Note explores recent state efforts to reshape their respective Medicaid programs through Section 1115 waivers. Specifically, this Note looks at states that wish to convert their Medicaid program to a block grant through Section 1115 waivers. Examining the lawfulness of these waivers requires analyzing the language and application of both the Medicaid Act and the Administrative Procedure Act. This Note argues that any use of Section 1115 waivers to implement a block grant program would be a violation of the Medicaid Act and thus unlawful. Further, federal approval of such programs would be deemed arbitrary and capricious. To justify this conclusion, this Note considers three recent federal court decisions striking down states’ use of Section 1115 waivers to enforce Medicaid work requirements. This Note determines that any use of Section 1115 waivers to create a block grant program would face similar legal challenges as the work requirements cases.

Note

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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