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Washington and Lee Law Review - Print Edition

Tribute

by Cristina Becker, C. Elizabeth Belmont, Johanna Bond, J.D. King, Zoe Bruck, Judy Clarke, Dawn M. Davison, Bernadette M. Donovan, Matthew L. Engle, William S. Geimer, Dan Goldman, Brandon Hasbrouck, Laura G. Hastay, Alexandra L. Klein, Emily Kuchar, Charu Kulkarni, Kristina Leslie, Kamyle Li, Kevin McNally, Maisie Osteen, Jonathan Shapiro, and Scott E. Sundby

A tribute to Professor David I. Bruck, who served on the faculty of the Washington and Lee University School of Law from 2004 to 2020. Bruck directed W&L’s death penalty defense clinic, the Virginia Capital Case Clearinghouse, also known as “VC3”. He became Professor of Law, Emeritus in 2020.

Article

by Sonia M. Gipson Rankin

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth about race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.

The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an eighteen-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use. It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.

According to anti-lynching advocate, Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step. The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies. It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.

Article

by Kit Kinports

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda—in Shatzer’s case while he was living among the general prison population and in Fields’s case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown. This Article maintains that the Court’s language and reasoning in Shatzer and Fields, as well as the relevant policy considerations, call for limiting the reach of those opinions to prisoners serving time.

This Article therefore concludes that pretrial detainees should be deemed to be in Miranda custody for the duration of their confinement prior to trial. Any other result would allow gamesmanship on the part of prosecutors in making charging decisions and bail recommendations and would enable law enforcement to trade on the coerciveness of pretrial detention to elicit unwarned confessions from suspects who are especially susceptible to the threats and promises that are a leading cause of false confessions and who disproportionately represent communities of color and financially vulnerable populations.

Article

by Leigh Osofsky and Kathleen DeLaney Thomas

De minimis tax rules—rules that eliminate tax burdens for low-income taxpayers or low-dollar transactions—abound in the tax law. Despite the prevalence of such rules, legal scholarship has treated them as—well—de minimis, or as mere rounding errors that do not merit sustained attention. This perspective is understandable. If de minimis rules address insignificant taxpayers or tax liabilities, aren’t the rules themselves likely to be insignificant?

Recent tax law developments have revealed that this conception of de minimis tax rules is deeply misguided. Major allocations of tax law liability, as well as accompanying questions about the fairness, efficiency, and administrability of the tax system, turn on the existence and design of de minimis tax rules. In the wake of the recent Tax Cuts and Jobs Act, for example, astute industry players successfully lobbied the Treasury Department to create de minimis tax rules, thereby scoring significant monetary victories. De minimis tax rules like these not only serve as low-salience giveaways but are also poorly designed in a way that undermines the integrity of the tax system.

The lack of scholarly attention to de minimis tax rules has left this lobbying largely unchecked. There is no scholarly framework evaluating existing de minimis tax rules. There is no policy framework to help lawmakers decide why, when, or how such rules should be made. And there is no separation of powers framework analyzing when the Treasury Department has the authority to create de minimis tax rules without express Congressional authorization. This Article seeks to fill this gap by analyzing de minimis tax rules along all of these dimensions. It provides a framework for considering when de minimis tax rules are preferable to other policy options and offers important design considerations. Scholars can apply this analysis to the de minimis tax rules that already pervade the Internal Revenue Code and policymakers can use it to guide the many more they will consider in the future.

Article

by Alexander Tsesis

This Article analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme Court and Congress in achieving aspirations of the Second Founding. The framework that emerges requires the judiciary to defer to legitimate legislative functions in enforcing racial equality, dignitary justice, and access to the ballot box. Congress’s discretion extends to safeguards for fundamental rights, civil liberties, and political representation. Rational basis review is appropriate when Congress advances autonomy, equality, and franchise. However, when courts safeguard equal enjoyment of fundamental rights against legislative encroachments, those three amendments require heightened judicial scrutiny of adverse state actions.

Note

by Alexandra P. Clark

This Note explores the Tunney Act’s mechanism for judicial review of consent decrees negotiated by the U.S. Department of Justice and merging parties to remedy alleged antitrust issues. The Tunney Act requires that the reviewing court only approve a consent decree if it is “in the public interest.” This Note argues, however, that courts have improperly circumscribed their review by affording too much deference to the Department of Justice when reviewing these consent decrees. This deference subverts Congress’s intent in imposing judicial review and allows the government and merging parties the opportunity to skirt meaningful judicial review. As such, this Note concludes that courts should reanimate their role in reviewing consent decrees under the Tunney Act by affording a lower degree of deference to the Department of Justice. It is the correct reading of both the statute and the legislative history, it does not pose an unconstitutional imbalance between the judicial and executive branches, and it is critical to containing the harmful effects of anticompetitive mergers.

Note

by Sophie R. Rogers Churchill

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) included a now-ubiquitous provision designed to protect the privacy of patients’ protected health information. The provision prohibits covered entities, including health care providers and their agents, from disclosing any demographic information that may identify a patient and that relates to that patient’s medical care. The provision is broad and can include such simple information as which doctor a patient consults or the date of a patient’s consultation with a physician.

Unfortunately, such protections become impracticable in the bankruptcy setting. When a health care provider files bankruptcy, it files a host of documents that may inadvertently disclose protected health information. For example, recent patients usually must be given the opportunity to file a claim. To do so, the provider must list them on its initial schedules filed with its petition. These schedules, like almost all bankruptcy filings, become public record and can be found online, resulting in the type of disclosure prohibited by HIPAA. And the problem compounds as the case continues.

By walking through the hypothetical Chapter 11 case of a bankrupt fertility clinic, this Note highlights a few of the bankruptcy disclosures that prove particularly risky to protected health information (PHI). It argues that the rigidity of the Federal Rules of Bankruptcy Procedure and Title 11 of the United States Code (the Bankruptcy Code) contravene HIPAA’s privacy rule. It then recommends several opportunities to protect PHI through attorney, court, and legislative action. Specifically, this Note proposes that Congress incorporate specific language aimed at protecting PHI into existing bankruptcy laws. Enacting even a few of the recommendations in this Note would facilitate the protection of PHI and HIPAA compliance.

Tribute

by Katy Barnett; Alison Bell; Jeff Berryman; Neil Birkhoff; Daniel Friedmann; Thomas P. Gallanis; Claire Hagan Eller; Brandon Hasbrouck; Corey Hauser; Brant Hellwig; Margaret Howard; Alexandra L. Klein; Douglas Laycock; Benjamin V. Madison, III; Judith L. Madison; Kyle McNew; Linda Mullenix; Rami Rashmawi; Caprice Roberts; Victoria Shannon Sahani; Joan Shaughnessy; Barry Sullivan; Martha Vazquez; and Edilson Vitorelli

A tribute to Professor Doug Rendleman, who served on the faculty of the Washington and Lee University School of Law from 1988 to 2020. Rendleman became Professor of Law, Emeritus in 2020.

Article

by Courtney K. Cross

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis—especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they fail to disclose their HIV-positive serostatus before engaging in sexual or needle-sharing activities. Passed in response to panic following the discovery of HIV, these laws have not kept pace with medical advancements regarding the transmission and treatment of the infection. As a result, they criminalize behaviors that pose little risk of transmission and punish people who cannot or do not infect others. HIV criminalization laws also contribute to the spread of HIV by disincentivizing HIV testing, which would otherwise connect people to prevention and treatment plans.

While other scholars have critiqued these laws, this Article is the first to argue that state legislatures should pivot away from criminalization toward a comprehensive response to HIV informed by harm reduction—a branch of public health emphasizing risk mitigation. This approach must prioritize both the expansion of preventative services and the repeal of most HIV exposure laws. Simultaneously broadening services and narrowing criminal liability would remove barriers to HIV testing and promote early medical interventions, which reduce the spread of HIV and improve health outcomes. This paradigmatic shift also introduces a framework that can be implemented in other public health contexts that currently over-rely on criminalization throughout the region and the country.

Article

by Keith Cunningham-Parmeter

Employers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses and holding employers automatically responsible for all proven incidents of workplace harassment.

When the Supreme Court created the harassment loophole years ago, it assumed that employers would enact workplace measures to effectively deter harassment. Unfortunately, the #MeToo movement has convincingly demonstrated that the problem of workplace harassment remains widespread despite decades of harassment training. Even though firms express a rhetorical commitment to antiharassment values, many employers engage only in cosmetic compliance and fail to take meaningful steps to actually curb harassment. Closing the harassment loophole would not only represent a tangible legal solution to the ongoing problem of harassment, it would also advance the goals of compensation, deterrence, and cost-spreading that lie at the core of Title VII. Just as companies must pay for all other Title VII violations—regardless of formal policies that prohibit misconduct—courts should hold firms strictly accountable for sexual harassment.

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