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Washington and Lee Law Review - Vol. 73


by Johanna Bond

The Zika epidemic caused serious concerns about fetal health throughout Latin America and some southern states in the United States. The prevailing governmental response throughout the region continues to emphasize two disease control factors: pregnancy delay and mosquito abatement. This essay argues that the current health policy approach of the World Health Organization, the Centers for Disease Control, and various national governments fails in three primary ways. First, the approach does not adequately consider the intersection of gender and poverty; thus, the current policy fails to respond to the needs of women living in poverty. Second, the health policy response fails to consider the impact of gender-based violence in its efforts to control the epidemic. The recommendation to delay pregnancy, for example, fails to account for the widespread incidence of intimate partner violence in the region. A high rate of sexual violence in intimate partnerships makes the policy less effective, because some women will be impregnated as a direct result of intimate partner violence and others will be unable to negotiate for safe sex for the same reason. Third, the policy response fails to address the broader question of access to contraception and abortion in the region. Two decades of research concerning the connections between gender and HIV/AIDS transmission have taught policymakers a great deal about the need to carefully consider gender in the design and implementation of a public health response. Those lessons, however, have not translated to the Zika context and, unfortunately, the myopic public health response will leave women and their children increasingly vulnerable to Zika infection.


by Carl Tobias

When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 election returns indicate that more confirmations will be necessary due to additional court members’ probable retirement or assumption of senior status during President Trump’s administration. Striking politicization could frustrate this effort, however. Soon after the inauguration, President Trump signed a novel executive order proscribing U.S. immigration travel from seven predominantly Muslim nations— which the court of appeals subsequently blocked—leading President Trump to criticize the tribunal as chaotic and the motions panel opinion and the judges who decided the case as “so political.” Because the Ninth Circuit resolves the greatest number of filings, and often does so more slowly than other regional circuits even when the tribunal is at full capacity, the compelling need for the President and the Senate to fill these four open positions deserves scrutiny.


by Susan McCarter, Elisa Chinn-Gary, Louis A. Trosch Jr., Ahmed Toure, Abraham Alsaeedi, Jennifer Harrington

This article describes regional institutional organizing efforts to bring racial justice to the Charlotte courts and community through a collaborative called Race Matters for Juvenile Justice (RMJJ). The authors explain community and institutional organizing in-depth using the example of minority overrepresentation in the juvenile justice system, but recognize the pervasiveness of racial and ethnic disparities. Moreover, as the Race Matters for Juvenile Justice-Charlotte Model has gained national prominence, many jurisdictions seek to replicate the collaborative and the authors, therefore, provide RMJJ’s history as well as strategies for changing the narrative through communication and education, workforce development, data and research, community collaboration, practice change, and legislation reform.


by Harold J. Krent

Adam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the criminal defendant can benefit—the state saves resources while the defendant gets off death row.

Gershowitz’s article, therefore, affords a window into the increasing use of predictive analytics in deciding whether to bring or resolve litigation. Sifting through data on all prior capital cases can yield clues as to the likelihood of success or the length of litigation in future capital cases. Not surprisingly, the past can, to some extent, help us predict the future and thereby inform the governor’s commutation decision.

Deployment of predictive analytics is more familiar in the private sector. The life insurance industry historically is predicated on actuarial science, and credit card companies rely on complex data to score riskiness of a loan or to detect fraud. Even sports teams follow a “Moneyball” approach to drafting and acquiring the best talent possible based on prior data.

Gershowitz’s article presages the role that predictive analytics will play in the public sector, saving vast resources and limiting subjectivity in governmental decision-making. Reliance on prior data can help determine when the government should settle torts cases, pay Veterans claims, and subject those receiving disability to review to determine if their disability continues. Predictive analytics may also help the IRS streamline tax auditing and collection. On the other hand, unlike in private law, individuated decision-making may be required by the government either under the Constitution or legislative directives. Moreover, the government’s consideration of historical factors correlated with protected categories such as race may result, on occasion, in discrimination when reliance on the prior data culminates in denial of a benefit or increased punishment. As with any other technological breakthrough, predictive analytics as applied to the public sector brings tremendous promise but concerns as well.


by Valena Beety

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, this Essay also posits ways to ensure complete Brady compliance as well as obtain accurate and reliable forensic findings. Correctly understanding forensic findings can remedy a lack of transparency surrounding whether results were completely disclosed and whether the results support the testimony of lab analysts. Finally, to assist the court with its gate-keeping role of admitting forensic science disciplines and findings, this Essay recommends that courts appoint independent experts under Federal Rule of Evidence 706.


by Sonja R. West

When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these moments, even though they technically occurred in public. By operating in this semi-public sphere, the justices have robbed the public of important information about the workings of its Court. This essay adds to the ongoing discussion about transparency by exploring the Court’s “limited public forum” and the ways the justices have found to hide in plain sight.