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Washington and Lee Law Review - Student Notes

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.

Note

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 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.

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