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Washington and Lee Law Review - Vol. 72


by Boris Bindman

We are witnessing a revolution in the way we get around, if only we glance up from our phones. “Techies” and suit-clad professionals alike use their phones to request rides from tuxedo-attired professional chauffeurs in luxury vehicles, as well as from part-time nonprofessionals using their “daily-driver” to make some extra cash. It is indisputable that Transportation Network Companies (TNCs)—like Uber and Lyft—are providing unique alternatives to taxis and conventional charter-car carriers while simultaneously paving the way for a new era in transportation.

“App-based” car-for-hire platforms, said to be the cause of market “disruption,” have met unwavering resistance from industry competitors, advocacy groups, and government regulators arguing that these services are illegal, unsafe, and competing unfairly. Consequently, TNCs have often faced outright bans, anachronistic regulations, and numerous legal hurdles. Whether the rationales for regulations and bans have been pretexts for protectionism and resistance to change, or legitimate expressions of concern for safety and fair business practices, it is clear that they are responses to TNCs supplying a demand for easy, affordable, and reliable transportation.

This Note examines whether the dormant Commerce Clause doctrine bars certain types of bans or regulations of TNC platforms. Though TNCs have not shown an eagerness to litigate challenges to their operations, this avenue of defense—a road once treaded by trucking and railroad companies—remains open to them. TNCs may thus look to revive the dormant Commerce Clause in the context of transportation regulations to challenge local limitations on their operations.

Importantly, this Note does not argue that any and all safety or labor concerns offered in efforts to regulate or limit TNC operations are unfounded or that invalidation of well-intentioned attempts to regulate for these concerns on dormant Commerce Clause grounds will somehow take care of them. Genuine concerns do exist, but the only way to seriously and judiciously confront them is through even-handed and constitutional legislation that recognizes that TNCs are parked and here to stay.


by Victor Williams

In March 2015, the debt ceiling was hit again and sovereign default loomed. Refusing to timely raise the debt ceiling, congressional ideologues have four times pushed our nation to the brink of a catastrophic debt default in as many years. Our struggling economy is again threatened, financial institutions are again spending millions planning for default, and vulnerable citizens are once again worrying about their benefit payments. Enough is enough.

This Essay argues that nationwide bondholder litigation can void the unconstitutional debt ceiling, and it presents the first litigation in that effort. (Williams v. Lew, No. 15-1565, U.S. Court of Appeals – D.C. Circuit). The Constitution guarantees not only that public debt will remain valid, but also that the integrity of those obligations will never be so much as questioned by our nation’s government. The debt limit statute, facially and as-applied, violates the Fourteenth Amendment’s Public Debt Clause and the Fifth Amendment’s Due Process Clause. Bondholders have standing to challenge the unconstitutional statute as they suffer economic and noneconomic injuries resulting from the degradation of their investments’ uniquely low-risk profile and monetary value. These injuries manifest as both current harm and certainly-impending future harm.

In the NAACP and ACLU’s tradition of “test cases,” the author’s litigation is prosecuted with modest-success expectations, but with strong determination to prompt future litigation by others. The Justice Department has already exposed a defense strategy based on combining Tea Party default-denial delusion with Clapper v. Amnesty International standing hurdles.

The Essay pleas for state sovereigns and institutional bondholders (with alternative standing allegations) to initiate additional litigation. Public interest law firms, such as the National Chamber Litigation Center and the Constitutional Accountability Center, are challenged to lend support. As bond buying has been since the Republic’s founding, this litigation effort is a necessary act of economic patriotism.


by Dale A. Whitman

In his recent article, Tools of Ignorance: An Appraisal of Deficiency Judgments, Professor Alan Weinberger accurately identifies both the benefits and detriments of statutory “fair value” limitations on deficiency judgments. The principal benefit of these statutes, of course, is that they stand in the way of a windfall double recovery by mortgage creditors. In many cases there is little or no competitive bidding at foreclosure sales, leaving the way clear for the creditor to bid at a level far below the property’s market value and thus, gain both the full value of the property and the amount of a deficiency measured by the artificially low bid. This is simply an outrage, and the basic principles of fairness demand some means of preventing it. On the other hand, determining what fair value is—indeed, defining what we mean by fair value—is often left ambiguous by fair value statutes. Even if the meaning is clear, determining value by a war of expert appraisal witnesses is a messy, complex, expensive, and often inaccurate process


by Rick Kirgis

In a federal system with state lines that are easily crossed, physically and electronically, legal disputes often raise choice-of- law issues. Common among those disputes are torts and contracts cases. The courts have taken a variety of approaches to these cases, leading to inconsistent results that depend largely on which forum the plaintiff selects. Judicial fairness and economy dictate, or should dictate, that the choice-of-law issues be resolvable consistently and without unnecessarily tying up the courts or imposing large litigation costs, if it can be done in a principled manner. This article shows how it could be done.


by John P. Gross

The State of Utah has a unique way of providing representation in criminal cases to defendants who are too poor to hire an attorney. In Utah, there is no statewide funding or supervision of indigent defense. Each county, city, or town is responsible for creating and funding their own indigent defense delivery system. Utah is one of only two states in the United States—Pennsylvania is the other—that fails to provide state funding or oversight of indigent defense. But what makes Utah truly unique is the way in which counties and municipalities are required to structure their indigent defense delivery systems. Utah’s Indigent Defense Act (IDA) mandates a single-source approach to the provision of indigent defense: indigent defendants who require additional “defense resources” to adequately prepare for trial, such as investigators or expert witnesses, must agree to be represented by the county or municipality’s “defense service provider.” A defendant who elects to retain private counsel is not entitled to additional funds from the county or municipality for any additional “defense resources.”

This “single-source approach” does not affect those defendants who are too poor to hire an attorney or those defendants wealthy enough to both retain counsel and pay the cost of whatever additional defense resources are necessary to adequately prepare for trial. But for defendants who are marginally indigent, who have the financial resources to retain counsel but are unable to afford additional “defense resources,” the single-source approach forces them to waive either their Sixth Amendment right to counsel of choice or their Fourteenth Amendment right to “the basic tools of an adequate defense.”

Defendants have the right to select an attorney who will be the architect of their defense, but they also have the right to “the raw materials integral to the building of an effective defense.” Utah’s single-source approach to indigent defense ignores the fact that these rights are two separate and distinct constitutional rights and conditions a defendant’s access to additional resources on a waiver of their right to counsel of their own choice. Now that the Supreme Court of Utah has decided that the IDA’s single-source approach is constitutional, marginally indigent defendants in Utah who wish to retain counsel, but also need additional defense resources to adequately prepare for trial, have no other option than to appeal to the Federal Courts. Whatever decision is ultimately reached by the United States Court of Appeals for the Tenth Circuit, it is abundantly clear that the IDA’s single-source approach to indigent defense is yet another legislative effort to avoid adequately funding an indigent defense system that would seem to have “no other purpose or effect than to chill the assertion of constitutional rights.”


by David Westin

This speech was given at the 2015 Lewis F. Powell Lecture on April 1, 2015 in the Millhiser Moot Court Room at Washington and Lee University.