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Washington and Lee Law Review - Vol. 73


by Kevin R. Johnson

Jenny-Brooke Condon’s article The Preempting of Equal Protection for Immigrants?analyzes important issues surrounding the constitutional rights of immigrants. Professor Condon in essence contends that the current legislative, executive, and scholarly focus on the distribution of immigration power between the state and federal governments has undermined the Equal Protection rights of legal immigrants in the United States. Despite the contentious national debates over immigration reform, immigrants’ rights have generally been of secondary concern in contemporary immigration scholarship, which is now dominated by analysis of immigration federalism.

Professor Condon undoubtedly is correct that we should not lose sight of the rights of immigrants through a myopic focus on federalism concerns. Courts should be vigilant to protect noncitizens from the excesses of all governmental exercises of power, including discrimination against immigrants by the federal government.

This essay identifies two areas for future inquiry that build on The Preempting of Equal Protection for Immigrants? First, Professor Condon questions the arbitrary line-drawing between the standards of review of state and federal alienage classifications. But, she herself draws a questionable line by advocating for greater protection of the constitutional rights of legal immigrants, while stopping short of calling for the extension of rights to undocumented immigrants. However, all immigrants are disenfranchised, lack direct political power, and frequently suffer the disfavor of the majority in the political process. That status militates in favor of strict scrutiny review of laws targeting undocumented as well as lawful immigrants.

Second, if Professor Condon’s call for greater attention to the Equal Protection rights of noncitizens is taken seriously, we must examine the continuing vitality of the plenary power doctrine. That exceptional doctrine shields from judicial review invidious classifications under the U.S. immigration laws, including discrimination that would be patently unconstitutional if applied to U.S. citizens; those laws historically have discriminated against noncitizens who are racial minorities, poor, disabled, women, political dissidents, and others. Dismantling what is known as “immigration exceptionalism” has long puzzled immigration law scholars. Professor Condon reminds us of the need to reconsider the constitutional immunity for immigrant admissions and removal criteria.


by Mark Glover

In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the distribution of property upon death. However, the law’s archetypical testator does not represent the many real testators who are irresolute and irrational, those possessing incoherent and only partially formed thoughts regarding the disposition of their estates.

Based upon the disconnect between the law’s paradigm of resolute will-making and the irresoluteness of testation in the real world, Baron argues that reforms that have given probate courts discretion to correct mistakes in testation do not function appropriately. For instance, Baron argues that the harmless error rule, which allows courts to excuse defects in a testator’s compliance with will-execution formalities when the testator’s intent is established by clear and convincing evidence, does not meaningfully limit probate courts’ discretion to correct mistakes. Specifically, she argues that many courts are concerned with not only the technical mistakes of resolute testators but also the more troubling mistakes of irresolute testators, and consequently, these courts overreach the boundaries of the harmless error rule.

This essay acknowledges Baron’s insight regarding the tension between the law and reality but questions whether this tension renders the harmless error rule and its clear and convincing evidence standard ineffective. More particularly, this essay argues that, despite potential overreaching by some courts, the clear and convincing evidence standard likely operates in the way that reformers intended and that the harmless error rule represents an improvement upon the conventional law of will-execution.


by Naomi Cahn

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error.Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators.


by Wee Jin Yeo

The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used exclusively overseas, if it has achieved a measure of renown in the United States. However, until now, it remains uncertain whether the doctrine is part of United States federal trademark law, given the split between the Ninth and the Second Circuits on the issue.

On March 23, 2016, the Fourth Circuit handed down the decision of Belmora LLC v. Bayer Consumer Care AG, which protected foreign marks neither registered nor used in the United States.

This Article takes this timely opportunity to revive the debate on the applicability of the well-known marks doctrine in trademark law. Analyzing the Fourth Circuit’s decision, this Article argues that it provides a useful insight on how the circuit split should be resolved, but cautions future courts not to mechanically apply the Fourth Circuit’s decision.


by Colin Miller

On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer this question in the affirmative without overturning precedent holding that the U.S. government can unilaterally impose the Federal Death Penalty Act in Puerto Rico. In other words, the Court cannot deprive Puerto Rican citizens of the protection of the Double Jeopardy Clause unless it adopts the concept of popular sovereignty.


by Candace Johnson & Mae C. Quinn

In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead’s critique by further focusing on the plight of children of color and surfacing non- financial sanctions in our juvenile courts that similarly marginalize minority youth. They argue these practices— including shackling, intentional and unintentional shaming, and educational deprivation—also work to reproduce a secondary caste in communities across the country.

Student Note

by Mitchell D. Diles

The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ vote also potentially implicates the relocation of the San Diego Chargers and the Oakland Raiders. Though applauded by numerous sports commentators, athletes, and fans, the vote reflects the failure of negotiations between the City of St. Louis and the Rams organization. The approval also sets the stage for a new generation of controversies over valuable team property. This includes disputes over team logos and other trademarks.

Although cities and fans may appear helpless when faced with franchise relocation, one powerful, although rarely invoked, point of leverage for local governments is the threat of exercising eminent domain power. In theory, this action could prevent a team from relocating. During the 1980s and 1990s, efforts to prevent professional sports franchises from moving, which included condemnation proceedings initiated by multiple cities, largely failed. Given the current, broad interpretation of the public use language in the Takings Clause, however, it is unclear whether another eminent domain action could succeed. Moreover, it is unclear whether an eminent domain action could seize a moving franchise’s trademarks given the “propertization” of trademarks and other forms of intellectual property.

This Note examines whether a city could exercise its eminent domain powers to acquire the intangible intellectual property rights associated with a professional sports franchise, specifically a team’s trademarks and associated goodwill. In doing so, it examines the unresolved issue of whether trademarks constitute constitutionally protected private property under the Takings Clause of the Fifth Amendment. If trademarks constitute constitutionally protected private property, the Fifth Amendment provides users of the mark with enhanced protection against government seizures. In the context of professional sports franchises, this would give teams greater protection upon relocation.