A tribute to Professor Joan Shaughnessy, who served on the faculty of the Washington and Lee University School of Law from 1983 to 2022. A recognized scholar and teacher in areas of civil procedure, federal courts, evidence, family law, and poverty law, Shaun was appointed as W&L’s inaugural Roger D. Groot Professor of Law in 2012.
Washington and Lee Law Review - Print Edition
by Tom Lininger
Building on my recent article in the Minnesota Law Review proposing reforms of evidentiary privilege law, this Article focuses on the unique context of communication about abortion. There is an urgent need to protect such communication in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to recriminalize abortion. Now abortion seekers, providers, and third parties who aid and abet abortion could face significant exposure to both criminal penalties and civil suits in many states. Those states are attempting to extend the reach of their bans by sanctioning out-of-state travel and third-party aid to the traveler if the purpose of the travel is to abort a pregnancy. Advocates for reproductive freedom recognize the need to establish an “underground railroad” akin to the surreptitious assistance of fugitive slaves fleeing the Antebellum South. A stricter evidentiary privilege for abortion-related communication is crucial to protect those who seek to defy the draconian new regime.
In this Article, I offer a model rule that legislatures and judges should adopt. I also propose a comprehensive set of related reforms including changes to the crime-fraud exception in privilege law, changes to attorneys’ ethical rules, and changes to regulations governing data privacy.
The benefits of this Article’s proposals could be significant. For those who need to terminate their pregnancies but live in states that have criminalized abortion—a population consisting largely of low-income people of color—the new privilege could be the difference between privacy or prison. The proposals in this Article would improve access to abortion, reduce exposure to reprisals in court after an abortion, and limit the surveillance that could otherwise plague people of childbearing age.
From a conceptual standpoint, this Article’s proposals would make privilege law more egalitarian by shifting the focus from the professional credentials of the audience to the subject matter of the conversation—a long-overdue reorientation. Evidentiary privilege should not be coextensive with economic privilege.
by Viva R. Moffat
People in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should.
Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both while they are incarcerated and after they are released. In the prison context, copyright should be thought of as akin to a civil right and a part of the movement to reform the U.S. carceral system, empowering those who create. Moreover, because copyright is a right in intangibles, there is no reason that prisoners cannot or should not advance and vindicate their copyright interests just as they would if they were not incarcerated. In other words, copyright behind bars should not operate any differently than copyright in the free world.
This Article first describes the enormous range of artistic work created by those who are imprisoned, as well as the prison system’s regular attempts to deter and suppress such work. The Article then explains how copyright law protects virtually all of these works and why copyright is valuable to prisoners and should become part of the carceral reform project. Finally, the Article argues that there is no reason to limit the exercise of copyright by those who are incarcerated and no justification for impinging on prisoners’ ability to create, disseminate, and profit from their expressive and artistic works.
by Kathleen DeLaney Thomas and Erin Scharff
The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.
That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. The past five years have seen a dramatic shift in the landscape of false information and scholars in a variety of disciplines, from law to psychology to journalism, have explored the increasing influence of fake news.
Building on this burgeoning literature, this Article is the first to examine the incidence and impact of fake news on tax law. We analyze a unique dataset of tax stories flagged as “false” or “untrue” by reputable, third-party news sources. We use this dataset to explore common themes in fake tax news, as well as the ways tax laws’ complexity contributes to spreading false information. We then offer recommendations for how tax administrators and policymakers can combat these misinformation efforts. Specifically, we argue that insights from the literature on fake news can and should inform how administrators disseminate true tax information to the public. Further, understanding what types of tax laws are easily misunderstood or subject to manipulation should inform substantive tax policy design.
by Larry J. Pittman
In 1925, Congress, to provide for the enforcement of certain arbitration agreements, enacted the Federal Arbitration Act (“FAA”) as a procedural law to be applicable only in federal courts. However, the United States Supreme Court, seemingly for the purpose of reducing federal courts’ caseloads, co-opted the FAA by disregarding Congress’s intent that the FAA be applicable only in federal courts. And in furtherance of its own Court-created “federal policy in favor of arbitration,” the Court created precedents that limit state regulation of arbitration agreements, including that states cannot exempt disputes from forced or mandatory arbitration agreements or otherwise regulate the enforcement of arbitration agreements in a manner that is inconsistent with the FAA. The Court’s precedents have left a regulatory gap where states cannot prevent some of the dangers that arbitration poses to litigants in many areas of the law, including in consumer and employment contracts. Recently, however, Congress has reentered the arbitration field to reassert its authority over arbitration. In 2022, it enacted the Ending Forced Arbitration of Sexual Abuse and Sexual Harassment Act to exclude these types of claims from forced or mandatory arbitration. This Article asserts that Congress, having reentered the field, should continue its reforms of the FAA to recalibrate the balance of power between the Court and Congress. This would include Congress clearly stating whether Section 2 of the FAA should be applicable only in federal courts; should not be applicable to adhesion arbitration agreements; and should not be applicable to federal statutory claims, as well as whether the lack of diversity in arbitrators should be one of the justifications for not enforcing predispute arbitration agreements. This Articles discusses these topics and offers suggestions on how Congress should resolve these issues.
by Samuel D. Romano
In 2021, Secretary of Homeland Security Alejandro Mayorkas asserted that “[d]omestic violent extremism is the greatest terrorist-related threat” facing the United States. Although domestic extremism is often characterized as a lone wolf threat, it is frequently spurred on by white supremacist and neo-Nazi organizations that use the internet to radicalize their members and then avoid accountability by hiding behind constitutional protections—a strategy called “leaderless resistance.” This strategy results in devastating consequences. While the number of hate groups and hate crimes in the United States have risen to record highs, constitutional protections prevent domestic extremist organizations from being treated the same as foreign terrorist organizations. In turn, those who support domestic extremist organizations are also largely precluded from prosecution for providing material support.
Enter the Racketeer Influenced and Corrupt Organizations Act (RICO). Despite its roots in countering the mafia and other organized crime groups, RICO has become a catch-all statute to prosecute criminal organizations of all types. The statute allows the government to encapsulate and address decentralized organizations whose members commit criminal offenses without explicit agreement or instruction. In essence, RICO allows the government to constitutionally criminalize organizational membership and involvement.
The organizations that lead the “leaderless” resistance must be held accountable. This Note asserts that Congress can use RICO’s model of organizational accountability to create a domestic extremism statute that enables the government to undermine these organizations by: (1) designating domestic extremist organizations; and (2) prosecuting their support networks. This statute would provide the government with an effective and constitutional method to deter the greatest current extremist threat to the United States.
by Brian T. Warren
From the American Revolution to the War in Afghanistan, the United States has hired private contractors to perform a myriad of tasks, from feeding the troops to researching hypersonic missile defense systems. Following the collapse of the Soviet Union, however, the nature of work performed by these contractors began to shift. No longer were contractors relegated solely to unarmed tasks. From the jungles of Colombia to the deserts of Iraq, armed contractors—known as Private Security Contractors (PSCs)—have guarded American military bases, protected heads of state, assaulted enemy compounds, and more.
Using PSCs is not without risk. Incidents like the Nisour Square massacre highlight the devastation that PSCs can cause. While advocates point to a seemingly robust web of legal restraints that constrain the worst excesses of PSC abuse, this Note argues that these checks are ultimately inadequate. Moreover, PSCs escape one of the strongest protections that would limit their use: the War Powers Resolution. The War Powers Resolution is a pioneering piece of legislation meant to constrain the unfettered zeal of executive authority. However, because the Resolution applies only to the “U.S. Armed Forces,” and not PSCs, the President may deploy PSCs for long periods of time without meaningful congressional oversight.
This Note proposes that Congress should expand the War Powers Resolution to incorporate PSCs by explicitly adding the phrase “Private Security Contractors” to the statute. By including PSCs, Congress will have more legislative tools to monitor and potentially restrict the President’s use of PSCs. Requiring the President to consult, report, and notify Congress when deploying PSCs allows Congress to exert pressure on the President to avoid any unwarranted use and prevent potential future catastrophe.
by Patricia Roberts, Soledad Atienza, Eleanor Myers, Jim Heller, Gary Tamsitt, Neal Devins, Peter Čuroš, Maxim Tomoszek, Veronika Tomoszek, Pavol Žilinčík, Rongjie Lam, José M. de Areilza, Irina Lortkipanidze, Ján Mazúr, Javier Guillen, Lucia Berdisová, and James Étienne Viator
A tribute to Professor James Moliterno, who served on the faculty of the Washington and Lee University School of Law from 2009 to 2022. An internationally active scholar of legal and judicial ethics, Moliterno was most recently the Vincent Bradford Professor of Law. For 21 years prior to joining W&L, he was a member of the faculty of the William & Mary Law School.
by Richard Frankel
Risk assessment and algorithmic tools have become increasingly popular in recent years, particularly with respect to detention and incarceration decisions. The emergence of big data and the increased sophistication of algorithmic design hold the promise of more accurately predicting whether an individual is dangerous or a flight risk, overcoming human bias in decision-making, and reducing detention without compromising public safety. But these tools also carry the potential to exacerbate racial disparities in incarceration, create a false veneer of objective scientific accuracy, and spawn opaque decision-making by “black box” computer programs.
While scholars have focused much attention on how judges in criminal cases use risk assessment to inform pretrial detention decisions, they have paid little attention to whether immigration judges should use risk assessment when deciding whether to detain noncitizens. Yet, the federal immigration detention system is one of the largest in the world, incarcerating nearly 400,000 noncitizens a year. Immigration courts contribute to unnecessary detention and deprivation of liberty due to serious structural flaws. Immigration judges are prone to racial bias, they focus on factors unrelated to danger and flight risk, their bond decisions are nontransparent and opaque, and they are subject to undue political influence that encourages judges to err on the side of detention rather than release.
Given the rise of algorithmic decision-making, the time has come to investigate whether risk assessment has a role to play in immigration court bond decisions. This Article suggests that while there is no easy answer, a well-designed and transparent risk assessment tool could provide a check against the worst features of the current immigration court bond system. Alternatively, even if risk assessment tools prove to be flawed, the information obtained from using them could provide support for broader reform of immigration detention.
by Carissa Byrne Hessick, Ronald F. Wright, and Jessica Pishko
Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.
Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.