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Washington and Lee Law Review - Print Edition


by David E. Landau and Rosalind Dixon

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at many moments in U.S. history, including in both the Trump and Biden administrations. We survey examples of restorative constitutionalism both inside and outside the United States and show that it is a powerful and varied mode of change that can facilitate popular and elite consensus and repair damage wrought by anti-democratic political actors. Restoration is not without risks: it may restrict the horizons of constitutional imagination and be abused for authoritarian ends. Nonetheless, progressives would be well-served by engaging with restorative constitutional discourse, rather than treating it as a trap and allowing it to be monopolized by conservative constitutionalists.


by Barbara Ballan and Jason J. Czarnezki

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how these forms of greenwashing litigation are evolving, and (3) the synergistic relationships that do, and should, exist between these forms of litigation.


by Kathryn Ramsey Mason

The divide between the civil and criminal legal systems is one of the most fundamental distinctions in American law. There are laws, however, that do not fit clearly into either category and the Supreme Court’s jurisprudence on how to categorize these statutes has been murky. Crime-free rental housing ordinances, which encourage or coerce private landlords into evicting tenants for a single incident of criminal activity that does not need to result in a conviction, are an example of the laws that occupy this middle ground. Local legislatures designate these laws as civil statutes and use them as a means to accomplish one of the same ends as the criminal legal system—the removal of undesirable people from the community—but without the need to comply with the more stringent constitutional rights and protections that criminal defendants are entitled to. Tenants facing eviction under crime-free rental housing ordinances must confront allegations of criminal activity without the protections of the Fourth Amendment exclusionary rule, the Sixth Amendment right to counsel, or the expectation that the criminal activity be proven beyond a reasonable doubt. This Article argues that, given the severe consequences that individuals and communities suffer as a result of eviction, including the racial justice implications, legislatures and courts should consider designating evictions under crime-free rental housing ordinances as quasi-criminal matters, thereby ensuring better protection of tenants’ constitutional rights.


by Doug Rendleman

Agreements exchanging sex for money and those involving marijuana may encounter illegality defenses in court. Granting a legal remedy for breach of an agreement that exchanges seriously illegal consideration would lower the court’s public standing and endanger its legitimacy. On the other hand, the spectacle of a buyer claiming its own illegality to escape paying its seller troubles courts.

Lord Mansfield stated the illegality defense in Holman v. Johnson: “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Yet he rejected the illegality defense in that case on the ground that the plaintiff’s contract to sell tea that the buyer planned to smuggle into England was complete before the crime occurred.

Difficult illegality decisions arise when the illegality is not serious, as in this Article’s sex and marijuana topics. This Article rejects fixed rules for illegality disputes and favors judicial discretion guided through standards. The standards include the seriousness of the illegality and preventing unjust enrichment leading to restitution. Applying the standards to the Article’s first example leads to potential recovery for an unpaid sex worker. The Article also approves recovery of contractual damages for many marijuana transactions that are illegal under federal law but legal under state law.


by Leo Yu

Scholars have found that, despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This Article is the first to find that, over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This Article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of § 1983. This Article criticizes this approach, as it distorts the rule-of-law value of the Federal Rules of Civil Procedure, and it cannot be reconciled with the statutory text and the original intent of the forty-second Congress in enacting the Civil Rights Act of 1871.

This new circuit split should not be understood as merely a procedural split regarding the pleading burden. Courts often take advantage of procedural law’s elusive nature and use it as a veil to shield judicial activism. This circuit split is another example. Behind the veil of the pleading allocation is a clear policy agenda: anti-civil rights and unconditionally pro-law enforcement.

Yet, one subtle, albeit salient, theoretical strand remains underexplored: the undertones of states’ rights embedded within the contemporary qualified immunity jurisprudence. Both the Rehnquist and Roberts Courts exhibited a predilection for interpreting the objective knowledge test in a manner favorable to law enforcement, leading to a predicament the Reconstruction Congress once grappled with: the enforceability of a federal right today often hinges upon a state actor’s acknowledgment of that right. Such an outcome, far from being serendipitous, resonates with the Court’s overt pro-states’ rights disposition on many civil rights matters. Thus, the contemporary qualified immunity jurisprudence reflects a departure from the vision of the Reconstruction Congress, which envisioned federal courts as guardians of civil rights. The prevailing sentiment of the Court suggests a reimagining of a new role for federal courts: guardians of states’ rights.


by Teressa Colhoun

Youth mental health is in crisis. Children report increased rates of suicidal ideology, depression, and anxiety. Diagnosis rates soar. Pediatric mental health care remains difficult to access. When services are accessible, they are costly—often sending families into medical debt.

This Note discusses Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) benefit. Specifically, it studies the EPSDT benefit’s creation, structure, and administration. This Note focuses on the context in which the EPSDT benefit operates, particularly how health care financing models impact benefit administration. It suggests that the EPSDT benefit has the capacity to address crucial gaps in pediatric mental health care. However, this Note summarizes key issues in the benefit’s current administration. Specifically, it articulates how EPSDT’s medical necessity standard is manipulated by states to deny coverage to children, despite their providers’ opinion that such treatment is necessary. It further discusses inconsistencies that exist when courts are asked to apply the EPSDT benefit’s medical necessity standard in coverage determination challenges.

This Note ultimately advocates for consistency and predictability in medical necessity standards, so that children receive coverage for crucial health care services. It urges three possible solutions to address the EPSDT benefit’s current shortcomings: First, it suggests federalizing a definition for medical necessity. Next, it advocates for the establishment of a consistent burden shifting framework to apply in courts where coverage determinations are being challenged on the basis of medical necessity. Finally, it proposes the implementation of a specialized patient advocacy model. Ultimately, these solutions share a common goal: to capitalize on the potential of the EPSDT benefit’s broad promise to cover medically necessary services so that children can access much needed care, particularly given the ongoing youth mental health crisis.


by Ross C. Reggio

Pharmacy compounding of drugs for companion animals and humans is as old as time. For hundreds of years, pharmacists created these drugs using active pharmaceutical ingredients, otherwise known as bulk drug substances, to address the medical needs of these patients. Congress recognized this longstanding practice when it enacted the Food, Drug, and Cosmetic Act (“FDCA”), with lawmakers then noting that while pharmacists, physicians, and veterinarians were already highly regulated by the states, mass-producing drug manufacturers were not regulated. The FDCA would regulate such manufacturers.

Thereafter, pharmacy compounding from bulk drug substances continued for decades after the FDCA’s enactment and without any attempted interference by the Food and Drug Administration (“FDA”). But, approximately fifty years after Congress enacted the FDCA, the FDA began to change its tune. The FDA’s policy guides first proclaimed such compounding to be illegal under the FDCA in relation to human drugs. Congress pushed back and, in 1997, created the Food and Drug Administration Modernization Act (“FDAMA”), which expressly permits pharmacy compounding from bulk drug substances for human use. Despite this congressional statement, the FDA persisted in its position that using bulk drug substances to compound drugs for companion animals is illegal per se. Its latest 2022 policy guide adheres to this position, stating that the FDA, “in its discretion,” will permit such compounding only in limited, delineated circumstances. But in that same year, the Supreme Court officially recognized the “major questions doctrine,” which attempts to rein in overzealous agency assertions of power beyond that which Congress likely granted. In West Virginia v. EPA, the Court announced that, when faced with dramatic claims of agency authority that have political or economic significance, are novel or unprecedented, or impact traditionally state-regulated areas, the Court will look for a “clear statement” from Congress that it delegated such authority to the agency.

This Note analyzes the legality of the FDA’s 2022 policy guide for pharmacy compounding from bulk drug substances for companion, nonfood animals. For several reasons, the “major questions doctrine” should apply to curtail the FDA’s claimed authority. The FDA’s position ignores centuries of history, several FDCA textual provisions, the FDA’s own inconsistent policy positions, and traditional state regulation over pharmacy and medical practices. And, at bottom, the FDA’s policy jeopardizes companion animals’ medical needs and runs counter to the FDCA’s mission. If the FDA’s 2022 policy guide is allowed to stand, it will have a substantial and unnecessary negative impact on the health and wellbeing of nonfood companion animals—who, for many of us, are beloved members of our families.


by Sarah Gottlieb

Progressive prosecutors have been acclaimed as the new hope for change in the criminal legal system. Advocates and scholars touting progressive prosecution believe that progressive prosecutors will use their power and discretion to address systemic racism and end mass incarceration. Just as this hope has arisen, however, so have concerns that meaningful change cannot be enacted within the criminal system by the very actors whose job it is to incarcerate. This Article highlights these concerns by looking at the bail reforms enacted by four different progressive prosecutors and analyzes the initial promises made, the actions taken to reform and eliminate monetary bail, and the resulting impacts on pretrial incarceration rates and existing racial disparities. This analysis shows how these prosecutors failed to deliver on their promises of reduced incarceration and more equitable treatment in the criminal system, and examines why these efforts often resulted in a shift to more conservative rhetoric and refocused efforts to incarcerate. Finally, this Article will use bail reform to show why progressive prosecutors are not a reliable method for transforming the criminal legal system due to their lack of transparency and accountability, role as political and adversarial actors, and lack of power to dismantle the carceral state.


by Erin C. Carroll

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Perhaps unsurprisingly then, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds.

As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine.

No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article explains how and provides examples of just what types of metaphors might work.


by Jason Reinecke

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue.

For example, the results show that, in the aggregate, patent-related ideology plays a role in voting and decisionmaking at the Federal Circuit—that is, some judges are more likely to vote in a pro-patentee direction than others. This patent ideology is not explained by political affiliation, nor is it significantly explained by the judges’ prior patent-related experience. The former observation undercuts the assumption made by scholars that if political affiliation does not predict voting in an area of law, then that area of law must either be clear and binding, or there must be a near-consensus about the appropriate principles.

The results also indicate that decisionmaking at the Federal Circuit is influenced by panel effects, which refer to changes in judges’ voting patterns based on the preferences of the other judges on the panel. The study exemplifies how prevalent panel effects can be in an area of law, considering they persist in patent cases at the Federal Circuit despite several reasons to believe panel effects may not exist.

This study also compares decisionmaking in precedential, nonprecedential, and summarily affirmed cases and finds that voting and decisionmaking is most influenced by patent ideology in precedential cases. Prior studies of judicial decisionmaking in other circuits typically focus exclusively on precedential cases, and thus must be interpreted in view of that limitation.

Furthermore, according to the results, judges do not appear to use summary affirmances as a tool to systematically bury cases opposing their patent ideology. To the contrary, decisionmaking in summarily affirmed cases is largely, if not entirely, independent of patent ideology. And judges are not more likely to summarily affirm cases coming out against their patent ideology, when considered as a fraction of the total number of opportunities to issue a summary affirmance.

The results also show that judges tend to write a disproportionate share of opinions favoring their patent ideology. As a result, there is greater risk than previously recognized that the law will develop to reflect the idiosyncratic preferences of a few judges and that opinions will be written ideologically.