Menu Close

Washington and Lee Law Review - Vol. 77

Roundtable

by Alexandra L. Klein

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states’ modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, when Captain George Kendall was shot to death by a firing squad. Virginia has officially executed 1,390 people, more than any other state.6 I write officially, because Virginia, like many other states also has a history of extrajudicial executions through lynching. The Equal Justice Initiative has calculated that between 1877 and 1950, eighty-four people were lynched in Virginia. Lynchings were arguably a form of “extrajudicial execution” because they frequently involved either the deliberate ignorance or enthusiastic cooperation of local officials and were tools of social control, just like legislatively enacted capital punishment.

Over four hundred years since Captain Kendall died at Jamestown, Virginia has decided to end its brutal regime of capital punishment. This is a truly historic moment. Virginia will be the first southern state, as well as the first state of the group of eleven states that seceded and formed the Confederate States of America during the Civil War to do so.

Development

by Lissa Griffin & Thomas Kidney

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more acute. The UK and the US Supreme Courts must tread a delicate line between the preserving the rule of law and usurping the role of elected representatives. How the Supreme Court in Washington and the Supreme Court in London address these challenges will have a tremendous impact on their respective futures.

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.

Development

by Mark Kelman

With surges in COVID-19 cases threatening to overload some hospital facilities, we must face the possibility that therapeutic treatments will need to be rationed, at least in some places. I do not propose any particular ideal rationing scheme but caution strongly against adopting a position that Professor Bagenstos advocated this past spring, rejecting rationing on the basis of patient life expectancy simply because life expectancy based rationing might threaten the factual interests of those with disabilities and might conceivably be implemented by those making judgments that were not simply inaccurate but grounded in biased, unacceptably discriminatory intuitions that some decision makers would have about the life expectancy of those with disabilities. My view is that Professor Bagenstos does not make either considered normative or empirical arguments that attending to the factual interests of those with disabilities or protecting against the possibility of discriminatory implementation of a plan should trump all other considerations; instead, he is “performing” his rhetorical commitment to a subordinated community as though that commitment functioned in the same way as a formal, normatively and factually defended side constraint on action would function.

Development

by Rep. Eric M. Swalwell & R. Kyle Alagood

A national security strategy is the “nation’s plan for the coordinated use of all the instruments of state power—nonmilitary as well as military—to pursue objectives that defend and advance its national interest.” Perhaps the most straightforward national security objective is to protect the country from foreign invasion, but national security involves other objectives that aim to protect people in the United States as well as their values. For example, protecting U.S. elections from foreign interference is a security objective that advances the nation’s interest in democratic governance. The outbreak of a highly contagious disease like COVID‑19 strikes at the core of national security and the nation’s interest in protecting its citizens from unnecessary harm.

Development

by Michael T. Morley

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when serious emergencies preclude them from being conducted or concluded on Election Day itself.

A court may also postpone or extend a federal election when necessary to prevent constitutional or statutory violations. The Supreme Court has emphasized that courts should generally avoid granting such relief at the last minute, although major unexpected emergencies may sometimes render it necessary. A court may not order an election postponement or extension, however, unless other, less extensive changes to the rules governing the electoral process would be insufficient to remedy the underlying constitutional or statutory violation. And courts may be especially reluctant to grant such relief in states that provide extensive opportunities for early and absentee voting before Election Day. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy—particularly in the unique context of presidential elections—that should be employed only in the rare, extreme case where alternatives would be completely ineffective.

Development

by George D. Brown

The Supreme Court’s decision in the “Bridgegate” controversy has been the subject of intense debate. It has received strong support. However, some critics assail the decision as representative of a pattern of recent cases in which the Court has shown itself as indifferent to political corruption, if not supportive of it. Somewhat lost in the discussion is the decision’s potential to be the foundation for a seismic re-alignment of anti-corruption enforcement in the United States. The current model—with federal prosecution as the norm—is not cast in stone.

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.

Development

by Melanie D. Wilson

While the deadly and highly contagious COVID-19 virus lingers and spreads across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and other concerns for the rights of the accused. Overlooked in this calculus is the importance of jurors and their safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” Without jurors, there is no justice.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this harsh treatment of jurors by exposing them to serious health risks—sometimes to decide cases with minor charges. This exploitation of jurors is short sighted. When courts endanger jurors, they create serious due process concerns for the accused and erode public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate safeguards, verdicts will be suspect, mistrials will dominate, and many citizens who are fearful or susceptible will fail to appear (or worse, contract the virus during jury service), resulting in juries less representative of the community.

Concerns over the virus are already resulting in some jurors defying their legal obligation to appear for service. Surveys also show that seventy five percent of jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting COVID-19. When jurors are worried and distracted, they may rush to a verdict—any verdict—or fail to appreciate all the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.

Roundtable

by Brandon Hasbrouck

It is time for Washington and Lee University to drop both George Washington and Robert E. Lee from the University name. The predominantly White faculty at Washington and Lee recently announced that it will petition the Board of Trustees to remove Lee from the University name. This is the first time in Washington and Lee’s history that the faculty has drafted such a petition. It is worth exploring why the faculty has decided to make a collective statement on Lee now and why the faculty has not included a demand to drop Washington in their petition. The answer is simple—it is no longer acceptable, profitable, or convenient to be associated with Lee but it is for Washington. At least for now.

css.php