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Washington and Lee Law Review - Print Edition


by Marsha Griggs

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private interest. By outsourcing the mechanisms that dictate admission to the bar, the legal profession has all but surrendered control of the most crucial component of its gatekeeping function to an unregulated industry that profits at the expense of those seeking entry.

The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. The manner in which state courts have fostered privatized bar admission brings into question whether the delegation of judicial power is consistent with Constitutional prerogatives. This Article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing an exclusive judicial power that is essential to the goals of self-regulation. This Article ultimately questions whether the legal profession has surrendered, or will soon lose, the ability to regulate itself. The Article concludes with multiple recommendations to reverse the directional flow of power in attorney licensure in a manner that will yield more transparency and public accountability.


by Sheldon Bernard Lyke

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by accounting for bias in admissions measures like grades, standardized testing, and letters of recommendation which are the products of racial bias. Given this fact, affirmative action is neither a racial preference nor a form of “benign” racial discrimination. Instead, affirmative action acts as a corrective function.

This Article argues that the Supreme Court’s dismantling of affirmative action in Students for Fair Admissions v. Harvard (“SFFA v. Harvard”) was not solely the work of conservatives. Advocates of affirmative action implemented an over forty-year, weak affirmative defense strategy that centered diversity and treated race conscious remedies as a form of preferential treatment. This Article discusses how portions of the SFFA decision that are critical of the diversity rationale align with principles of racial equality. Additionally, this Article discusses equality, the critiques of the diversity rationale, and calls for advocates of affirmative action to abandon diversity in the wake of SFFA.


by Courtlyn G. Roser-Jones

Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large scale. In addition to being against the law, these practices impose substantial costs on taxpayers and distort the competitive labor market, as law-abiding employers struggle to compete with others who cut costs by underpaying workers.

This Article explores government contracting initiatives at the state and local level as a supplemental tool for deterring wage theft. In addition to deterring unlawful behavior, conditioning government contracts and other public business relationships on recipients’ past and continued compliance with existent wage payment laws ensure that public funds are not used to subsidize wage theft’s public harm. Furthermore, publicly labeling wage-theft offenders as ill-fit government partners or providers of public goods and services challenges industry practices that have normalized this one particular kind of property “theft.”

While contract-based initiatives are an increasingly popular government tool for promoting certain workplace activities, these initiatives are specifically well suited for promoting wage-payment obligations and addressing the economic and logistical shortcomings of existing anti-wage-theft laws. Rather than relying on individual worker complaints to spur the enforcement process, contract-based initiatives make self-enforcement and rigorous disclosure obligations the price tag for lucrative public works and publicly subsidized opportunities. And because the potential penalty (or cost) of committing wage theft is contract ineligibility, contract-based initiatives turn employers’ cost-benefit analyses inside out. Instead of using low enforcement rates and predictable penalties to determine whether wage theft is likely the most profitable course of action, conscious employers must make these decisions with an added cost variable—the potential loss of public business opportunities. As the movement towards privatization marches on into new services and industries, more employers than ever should assess these costs as too high to risk having to pay.


by Portia Pedro

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling procedure to increase justice for marginalized groups and to decrease procedural subordination and white supremacy—is a form of what I am calling resistance proceduralism. I draw from engagement with procedures, such as requirements to file a lawsuit or for bonds and securities, in my ancestors’ freedom suits—lawsuits fighting for their freedom from slavery—to query whether some marginalized litigants, and even people who were enslaved at the time, may have engaged in resistance proceduralism.


by Natalie Ram, Jorge L. Contreras, Laura M. Beskow, and Leslie E. Wolf

Federal Certificates of Confidentiality (“Certificates”) protect sensitive information about human research subjects from disclosure and use in judicial, administrative, and legislative proceedings at both the state and federal levels. When they were first authorized by Congress in the 1970s, Certificates covered sensitive information collected in research about drug addiction use. Today, however, they extend to virtually all personal information gathered by biomedical research studies. The broad reach of Certificates, coupled with their power to override state subpoenas and warrants issued in the context of law enforcement, abortion regulation, and other police powers typically under state control, beg the question whether Certificates are constitutional.

This Article, for the first time, examines the fundamental constitutional underpinnings of Certificates and situates them within the context of federal statutory privilege law. In so doing, it makes several contributions to the existing literature. First, after a brief background about Certificates and other congressional action relating to biomedical research, this Article argues that the Certificate statute creates a federal statutory privilege. To date, the language of privilege has been wholly absent from discussions of Certificates and their reach. Yet understanding the Certificate as a privilege provides well understood nomenclature and legal principles for applying the Certificate statute. Second, this Article locates the primary constitutional authority undergirding the Certificate statute in the Commerce Clause. Third, this Article argues that Congress’s power to tax and spend provides further constitutional grounding for Certificates, at least with respect to federally-funded researchers and institutions. For both bases of constitutional authority, this Article maps new territory, yielding clarity where there has previously been uncertainty. Fourth, this Article brings together constitutional doctrines limiting both congressional power and evidentiary privileges to illuminate how these doctrines may require Certificate protections to give way in exceptional cases. In so doing, it bridges traditional constitutional law and evidence law, reaping insights from their intersection from which scholars in both fields may benefit. Finally, this Article considers the implications of this constitutional analysis not only on Certificates, but also on congressional action aimed at regulating human subjects research more generally and on the law surrounding federal statutory privileges.


by Wayne Unger

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored—like neurodata—it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind.

This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual’s neurodata, because such intrusion would violate the First Amendment’s right not to speak and the freedoms of thought and belief. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment’s well-established doctrines against compelled speech and its recognition of the freedom of thought ought to extend to prevent government access to an individual’s stored ideas, thoughts, and beliefs. In furtherance of this argument, this Article synthesizes First Amendment scholarship and proposes the Privacy Theory of the First Amendment to illustrate how the First Amendment broadly protects the privacy interests of individuals.


by Shannon M. Roesler

Since the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems. In doing so, it often enlisted states as regulatory partners—creating a system of shared governance that underpins major environmental statutes, such as the Clean Water Act and the Clean Air Act. These governance structures remain important today as we seek to adapt our laws and institutions to the serious disruptions of climate change. But recent Supreme Court decisions challenge this long-established vision of governance. This raises a critical question: How resilient is our current system of constitutional governance?

Originally applied to the natural sciences, resilience theory has since inspired scholars across disciplines to think about how social-ecological systems respond to disruptive change. At the heart of resilience thinking is an attempt to balance stability with change. But as legal scholars of adaptive governance have argued, if our normative goal is to promote the resilience of ecosystems and natural resources, our system of governance must also encourage an ecological resilience that supports the flexibility and adaptive capacity of our governing institutions and laws. Not surprisingly, the adaptive governance literature focuses on democratic processes and institutions at all levels of government. Constitutional design is a background condition rather than a feature of adaptive governance or decision making.

But background conditions may impede or facilitate the emergence of adaptive laws. Moreover, the judicial interpretations of these conditions are less static and therefore capable of either facilitating or hindering the adaptive capacity of institutions and laws. The premise of this Article is that constitutional governance doctrines can and should balance the stability of static rule-of-law resilience with the flexibility required for adaptive governance in a climate-disrupted world. Judicial doctrines can enhance adaptive capacity by fostering shared, overlapping governance and regulatory flexibility. Unfortunately, recent doctrinal trends threaten to hinder adaptive capacity. This Article examines some of these constraining threads, including the narrowing of Congress’s authority under the Commerce Clause, the resurgence of the nondelegation doctrine, and doctrines governing state authority under the Dormant Commerce Clause.


by Yifat Naftali Ben Zion

Almost a century ago, a legal dispute over who is the rightful owner of Pepsi-Cola, at the time an unknown syrup company on the verge of bankruptcy, led the Supreme Court of Delaware to develop what is now famously known as the corporate opportunity doctrine. This doctrine is the central framework Delaware courts use to this day to determine whether an officer who seized a business opportunity has breached his fiduciary duties. Despite the doctrine’s old roots, it has thus far failed to reach stable ground. For one, while many corporate law scholars have supported the rule developed following this decision—which instructs the courts to consider not only the company’s interests, but also the officer’s “rights”—others have argued that the rule is too soft and even perversely so. For another, the application of this lenient rule has proven unstable. The corporate opportunity doctrine is vague and contested, as demonstrated by the contradicting rulings from other U.S. states. This Article suggests a way out of the mess. Using a comprehensive comparative analysis of the case law from the United States, the United Kingdom, and Canada, this Article demonstrates that the lenient interpretation of the corporate opportunity doctrine by Delaware courts is misguided and results from a misunderstanding of its normative foundations. The corporate opportunity doctrine derives from the general principles of fiduciary law, and thus a theoretical understanding of the concept of “fiduciary” is crucial for its proper application. As this Article shows, this decisive aspect of the doctrine has been largely neglected by the literature. By taking a “first principles” approach and going back to the roots of this concept, this Article demonstrates that neither side in this ongoing debate on the desirability of the doctrine is free from error. It concludes that the lenient position should be rejected and explains how to ameliorate current legal instability.


by Mariya Denisenko

Government sponsored segregation of urban neighborhoods has detrimentally impacted the health of Black Americans. Over the last century, federal, state, and local governments have promulgated racist laws and policies that shaped the racial divide of communities in major metropolitan cities. This divide has contributed to poor health outcomes and large discrepancies in life expectancy for Black Americans when compared to their White counterparts. While health is impacted by various factors, segregation has been shown to impose various challenges that make it difficult for Black Americans to attain good health.

Segregated Black communities struggle with economic inequality, environmental racism, and face difficulties accessing healthcare services. All these challenges have been linked to poor health outcomes. This Note argues that the federal government must make amends for its role in shaping the segregated communities of America. The federal government should do this by passing a comprehensive reparations package to address economic inequality, environmental pollution, and barriers to accessing healthcare services that stem from segregation. Although such sweeping legislation is likely to face legal challenges, Congress can rely on its power to eliminate all badges and incidents of slavery under the Thirteenth Amendment to uphold the legislation in the courts.


by Scott Koven

To combat the continued devastation wrought by the opioid crisis in the United States, forty-eight states have passed medical amnesty (or “Good Samaritan”) laws. These laws provide varying forms of protection from criminal punishment for certain individuals if medical assistance is sought at the scene of an overdose. Thus far, the nascent scholarly conversation on medical amnesty has focused on the types of statutory protections available and the effectiveness of these statutes. To summarize, although medical amnesty laws have helped combat drug overdose, the statutes are replete with arbitrary limitations that cabin their life-saving potential.

This Note extends the dialogue on medical amnesty in two ways. First, it examines how judges, in applying these laws, can either frustrate or promote their life-saving purpose. Second, this Note connects the conversation on medical amnesty laws to the broader context they have entered—namely, the United States’ troubled history with the criminalization of addiction.

Medical amnesty laws reflect a legislative interest in health over punishment. Today, substance use disorder is recognized as a medical, neurological issue and the overdose crisis is recognized as a public health phenomenon. This Note argues that, both in statutory language and judicial application, gaps in the medical amnesty response stray from this reality and instead reflect the stigmatizing, racist normative view promoted during the War on Drugs—that substance use is a moral failing, symptomatic of a lack of personal responsibility. This Note’s key point is that, as long as legislators and judges fail to acknowledge, interrogate, and learn from the United States’ prior failures in responding to addiction, fatal gaps will continue to exist both in medical amnesty laws and in the broader response to the drug overdose crisis.