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Washington and Lee Law Review - Vol. 78

Response

How to Compromise on Saving the Most Lives: A Commentary on Hellman and Nicholson, “Rationing and Disability”

by David Wasserman

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much of their analysis, as well as with their conclusion that the “reserve approach” offers both a principled and practical compromise between these deeply embedded values. And until their article made me rethink the issue, I agreed with the authors that the “probability of survival” (PS) and “resource intensity” (RI) principles they see as presenting close calls were equally consequentialist, relying to the same extent on the tenacious appeal of the imperative to save the most lives when all cannot be saved.

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Note

The Haunting of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape

by Jordan S. Miceli

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction in custody proceedings and adoption proceedings, punishing both the victim mother who chooses to carry the pregnancy to term and the child born of rape. Although termination of parental rights is a civil matter, the Commonwealth currently imposes a criminal standard of proof on victim mothers.

Thus, this Note urges the adoption of the clear and convincing evidence standard in such termination proceedings. The current scheme debilitates a victim mother unable to secure a conviction against her rapist due to the unique and complex nature of the crime. The Commonwealth leaves the victim with no real choice in the matter: either abort the pregnancy and be free of her attacker forever, or carry the pregnancy to term and live in fear that her rapist will assert his parental rights over the child. The adoption of the clear and convincing evidence standard will help alleviate the life-altering harm facing a mother and child, and will ensure that all parties are given equal treatment under the law.

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Development

Chief Justice John Roberts: Institutionalist or Hubris-in-Chief?

by Eric J. Segall

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. A master of the long game and the catchy sound bite, hubris, not institutionalism, most defines the Chief Justice of the United States.

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Note

The Cost of Doing Business? Corporate Registration as Valid Consent to General Personal Jurisdiction

by Matthew D. Kaminer

Every state has a statute that requires out-of-state corporations to register with a designated official before doing business there, but courts disagree on what impact, if any, those statutes can or should have on personal jurisdiction doctrine. A minority of states interpret compliance with their registration statutes as the company’s consent to general personal jurisdiction, meaning it can be sued on any cause of action there, even those unrelated to the company’s conduct in that state. The United States Supreme Court upheld this “consent by registration” theory over 100 years ago, but since then has manifested a sea change in personal jurisdiction jurisprudence that leaves its continued viability in limbo. Two decisions by the Court from the 2010s—Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman—drastically contracted the scope of contacts-based general jurisdiction but did not appear to address the contours of consent jurisdiction. The palpable discord makes it high time for the issue to reach the Supreme Court, as it has in the high courts of four states in 2021 alone.

So, the question remains: what is left of consent by registration? Many courts and scholars have rejected the theory, reasoning that a corporation cannot give valid, knowing consent to general jurisdiction by simply complying with a state business registration statute. This Note sets out to address these concerns; it suggests that, under certain legal frameworks—where either explicit statutory language or controlling decisional law makes clear to corporations the jurisdictional consequences of registration—corporations can indeed give valid, informed consent to general jurisdiction by registering to do business in the state.

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Development

How Biden Began Building Back Better the Federal Bench

by Carl Tobias

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in practically all cases, because the United States Supreme Court Justices grant certiorari in such a minuscule number of appeals. The nomination and confirmation processes that the Republican White House and upper chamber majorities implemented and the myriad conservative judges whom they approved undermined appellate court and district court diversity in terms of ethnicity, gender, sexual orientation, ideological balance, and experience; the appointments procedures; as well as citizen respect for discharge of the preeminent responsibility to nominate and confirm exceptional jurists, the presidency, the Senate, the judiciary, and the rule of law. Accordingly, President Biden promised that he would comprehensively rectify those stunning complications.

The initial five superb, experienced prospects whom President Biden officially nominated during the month of April 2021 and the Senate members efficaciously investigated, questioned, and considered during the spring and confirmed throughout June demonstrated that the President and the Democratic chamber majority respected these pledges to strongly counter the deleterious consequences imposed by the judicial appointments which the Republican chief executive and the two GOP Senate majorities orchestrated, to improve the court diversity constituents, and to comprehensively revitalize dynamic “regular order” throughout the nomination and confirmation regimes. Therefore, the complications which Trump as well as the Republican Senate majorities in the 115th and 116th Congress caused and how Biden and the Democratic Senate majority commenced remedying or ameliorating the problems deserve consideration, which this piece undertakes.

The first section of the paper evaluates federal judicial selection throughout the administration of former-President Trump and the tenure of the two Grand Old Party Senate majorities during his term in office. The second portion explores how President Biden and the nascent Democratic Senate majority in the 117th Congress have started rectifying the detrimental consequences of the judicial selection practices that Trump and the Republican Senate majorities deployed. Because the segment detects that the Democratic chief executive and the razor-thin chamber majority have begun implementing nomination and confirmation processes that address the difficulties created by the former Republican President and the Senate majorities in the 115th and 116th Congress, the final part affords suggestions for improving the federal judicial selection process in Biden’s presidency, the 117th Senate, and the future.

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Development

Working While Mothering During the Pandemic and Beyond

by Nicole Buonocore Porter

Although combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit nevertheless suffered workplace consequences from logging many fewer work hours than before the pandemic. The exact magnitude of this toll, in terms of costs and careers, will not be known for years, if ever. This Article explores the challenges working mothers faced during the pandemic and sketches an outline of what solutions might have mitigated the difficulties during the pandemic and could make a difference in the lives of working mothers moving forward.

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