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Washington and Lee Law Review - Vol. 74


by Rene Reyes

The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. Supreme Court in 2016. However, the guidance given by the Supreme Court in the Caetano litigation was far from unambiguous: it faulted the SJC’s reasoning without opining on the ultimate question of the ban’s constitutionality, thus leaving open the possibility that the statute could pass constitutional muster under an alternative analytic approach. This essay discusses what such an alternative approach might have looked like. Specifically, I suggest that the SJC could have upheld the statutory ban by emphasizing the relative rarity of stun guns as a preferred means of self-defense not only as a matter of founding era history, but also as a matter of contemporary reality. This sort of analysis would have allowed the SJC to distinguish stun guns from other weapons that have received constitutional protection in other cases, and would have been fully consistent with both the scope and limitations of the right to bear arms under the Supreme Court’s Second Amendment jurisprudence.


by Darrell A. H. Miller

William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts to protect that same class or right. Dignity helps explain the Court’s halting approach to Reconstruction Amendment enforcement power more generally – an approach in which constitutional versus unconstitutional legislation turns on seemingly insignificant regulatory distinctions. And dignity’s role in § 5 enforcement helps explain the efforts of gun rights advocates to portray themselves as disempowered and despised members of a subordinate class. Araiza has cogently broken down the complicated mechanics of the Court’s equal protection, substantive rights, and § 5 enforcement power jurisprudence, but it is notions of dignity that seems to drive this particular constitutional engine.


by Eve Hanan

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor Benjamin Edwards’ central argument in The Professional Prospectus: A Call for Effective Professional Disclosure—that attorneys should provide potential clients with a prospectus disclosing their performance historyapplies to criminal defense. I reject the proposition that most people charged with crimes would have better representation if they could choose their attorneys and, to that end, had adequate information about their attorney’s past performance. I conclude, instead, that the problem of inadequate criminal defense representation can be better remedied by improving the infrastructure for public defense.

Others have argued that large, state-wide public defender offices provide better representation than smaller public defender offices or systems in which private attorneys accept public appointments from the court because large offices can aggregate resources. This essay adds to the discussion of the benefits of large public defender offices in two ways. First, it argues that statewide public defender offices can be evaluated for effectiveness, allowing potential clients and the general public to assess the quality of representation they provide. Adequate information about the effectiveness of the large public defender offices can overcome a common mistake that potential clients make regarding criminal defense—that a private attorney is always more effective than a public defender.

Second, statewide public defender offices can use performance data and institutional processes to implement uniform structural and attitudinal changes that insure consistently excellent representation from all attorneys working in the office. The question of access to information about attorney performance is still relevant but should be reframed. It is not a question of how individual clients can evaluate individual attorneys, but of how the public sphere can use the information available to institutionalize excellence in public defense.


by Thomas M. DiBiagio

A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct, culpable targets often are able to insulate themselves from the underlying criminal conduct and thereby, frustrate the prosecution’s ability to meet this evidentiary standard. The resulting impunity undermines the public’s trust and confidence in the fundamental fairness of the enforcement of the criminal laws.

This Article asserts that the facilitation theory of prosecution can be used to extend the limits of the mail and wire fraud statute to capture culpable targets for financial crimes and corporate corruption. Under the facilitation theory, a defendant culpably participates in criminal conduct when he knowingly acts to influence, enable, further, or conceal the criminal conduct.

Although there are no legal barriers to bringing financial crimes and corporate corruption in full view, it is acknowledged that there are substantial factual challenges. These cases often involve complex fact patterns and shifting narratives. Nevertheless, the interest of justice compel a persistent effort by prosecutors to establish real consequences for facilitating corporate criminal conduct.


by Wendy Gerwick Couture

In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons, application of the securities laws would stifle creativity within this innovative space. This Response proposes a reframing of the Howey test as a response to the risk of regulatory arbitrage, argues that the context clause should only exclude transactions that do not pose such a risk, contends that transactions in virtual space do pose a risk of regulatory arbitrage, and thus concludes that these transactions should not be excluded from the securities laws. In recognition of Professor Chaffee’s compelling argument that securities regulation would hinder creativity within this burgeoning area, this Response argues for a new exemption from registration that would further the policy goals of the securities laws while not stifling innovation in virtual space.


by Michael F. Dearington

Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort those very same shop owners in violation of the Hobbs Act. The corollary is that a shop owner can, in theory, conspire to extort himself. If a shop owner can conspire to extort himself as a matter of law, why can’t a bribe-taking foreign official conspire to bribe himself in violation of the Foreign Corrupt Practices Act (“FCPA”)? This Article posits that, under Ocasio’s flawed holding, and contrary to the oft-cited Fifth Circuit decision, United States v. Castle, 925 F.2d 831 (5th Cir. 1991) (per curiam), he probably can.


by Carl Tobias

During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s efforts to confirm her were unsurprising. However, 2016 was a presidential election year when judicial nominations traditionally slow and ultimately halt. This difficulty was exacerbated when Republicans consistently refused to implement any confirmation process for United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland, the experienced and mainstream nominee whom the chief executive had chosen to fill Justice Antonin Scalia’s Supreme Court vacancy during March 2016.

Notwithstanding Judge Koh’s manifold talents, the Senate Judiciary Committee did not arrange a hearing for the jurist until five protracted months subsequent to her nomination. That hearing proceeded rather smoothly, although the Grand Old Party (GOP) only conducted the nominee’s discussion and vote eight weeks later when Koh earned a thirteen to seven approval ballot. Republicans had plentiful weeks over which they could have scheduled a Senate debate and up or down vote yet refused the candidate those procedures and her nomination expired when senators adjourned in early January 2017. Because Koh is a strong and moderate jurist who received nomination for the appellate court, which experiences critical needs for all of its twenty-nine circuit judges to expeditiously, inexpensively, and equitably resolve appeals, California Democratic Senators Dianne Feinstein and Kamala Harris must champion her renomination and President Donald Trump ought to seriously evaluate nominating the jurist again.

This piece initially analyzes (1) the comprehensive record assembled by Judge Koh; (2) federal judicial appointments in President Obama’s administration, emphasizing 2016 when he selected Koh; and (3) the Ninth Circuit. The paper determines that she was a highly competent and mainstream nominee, while the court of appeals, which confronts four emergency openings, must have its complete contingent to promptly, economically and fairly resolve the United States’ most substantial, complex docket. Nevertheless, Republicans would not cooperate, especially after they had won a majority in the 114th Senate, a complication that the 2016 presidential election year magnified, and the GOP furnished Koh no upper chamber debate and vote. The final segment, therefore, provides suggestions for nominating the jurist again and for rapidly confirming her.


by Elayne E. Greenberg

The Online Journal requested that I evaluate Professor Strong’s empirical research, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” reported in 23 Wash. & Lee. L. Rev. 1973 (2016). The purpose of Professor Strong’s research is to help “fill the informational gap” about international commercial mediation for the United Nations Commission on International Trade (hereinafter UNICITRAL) Working Group II (Arbitration and Conciliation) so that the Working Group could better assess whether, in fact, there is a need for a new UNCITRAL instrument to enforce global commercial mediation agreements.

Professor Strong’s research offers insightful nuggets about international commercial mediation that merit further exploration. For example, her research showed that pre-dispute mediation clauses play a central role in incentivizing the increased use of international commercial mediation. In another highlighted contribution, survey respondents reported time and money to be the top two drivers that contributed to their decision to use international commercial mediation. A third insight is that surveyed participants value international commercial mediation for different reasons when they are asked to prospectively opine about its value versus when asked to opine about mediation’s value when deciding to use mediation.

Although these insights are noteworthy, they do not justify broad application because of methodological weaknesses in the research. To strengthen future research, I propose three fundamental research design modifications. First, the researcher should take affirmative steps to minimize the U.S.-centric bias around mediation. Second, the sampled pool should be more representative of those stakeholders who might be affected by the passage of the proposed global treaty. Third, the label used to describe this neutral facilitated process should be clearly defined to minimize the debate over whether mediation and conciliation are the same or a different dispute resolution procedure.