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Washington and Lee Law Review - Print Edition


by Claudia E. Haupt and Wendy E. Parmet

Current First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course. This Article examines the permissibility of compelled public health and safety warnings after the Supreme Court’s decision in National Institute of Family & Life Advocates v. Becerra (NIFLA) through the lens of a concurrence to the Ninth Circuit’s en banc decision in American Beverage Ass’n v. City & County of San Francisco (American Beverage II) suggesting that only health and safety warnings dating back to 1791 are presumptively constitutional under the First Amendment.

Rejecting this form of “public health originalism,” this Article first assesses the current doctrinal landscape of compelled public health and safety warnings in the context of commercial speech. It then turns to the history of such warnings, revealing that contrary to apparent assumptions underlying “public health originalism” in its deregulatory form, laws compelling speech including to protect public health existed in the framing era and were not thought to clash, in the modern sense, with individual liberties, including the freedom of expression. Finally, this Article offers a reading of NIFLA in light of the underlying normative interests of speakers and listeners that attempts to reconcile contemporary First Amendment doctrine and compelled public health and safety warnings.


by John O. McGinnis and Linda Sun

As the digital revolution continues to transform competition among businesses, U.S. antitrust enforcement has struggled to remain effective. The U.S. has long depended on a system of dual antitrust enforcement through both the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Modern technology has greatly exacerbated existing structural deficiencies of the two-headed approach, at times resulting in deadlock. The two agencies approach new antitrust issues generated by computational technologies differently and fight over who should lead key investigations, leading to economic uncertainty in the most important business sectors. These enforcement disagreements can also hobble the government’s response to significant national security issues emerging from the interplay of technological competition among private companies and among nation states. Further, dual enforcement hinders government action in the newly critical area of data privacy: the agency responsible, the FTC, suffers a mission overload of enforcing both antitrust and privacy, which can work against each other.

The best solution is for the DOJ to become the sole antitrust enforcement agency. First, antitrust decisions, especially in the technology arena, directly affect geopolitical competition and international relations, a province constitutionally assigned to the president. It therefore makes more sense for the DOJ, which, unlike the FTC, is controlled by the president, to direct antitrust enforcement as one piece of a larger foreign policy. Second, consolidating enforcement in the DOJ would also allow the FTC to concentrate on enforcing privacy law, free from its sometimes-conflicting antitrust mandate. Dual enforcement of antitrust law should yield to single agency enforcement, with the FTC enforcing privacy and the DOJ enforcing antitrust.


by Patricia J. Zettler

Although we often—and rightly—think of the U.S. Food and Drug Administration (FDA) as regulating important therapies for patients, the agency also can regulate non-therapeutic uses of drugs and devices. The Federal Food, Drug, and Cosmetic Act defines drugs and devices as including not only products intended to address disease but also those intended to affect the structure or function of the body, such as cognitive enhancements, wrinkle removers, and recreational drugs. Indeed, if these broad definitions were read literally, many everyday consumer products—such as winter jackets intended to keep wearers’ warm—may be drugs or devices. Accordingly, Congress, courts, and the agency itself have sought reasonable limits on the definitions.

This Article critiques one limit that is sometimes offered: that the FDA cannot regulate certain non-therapeutic technologies because those technologies cannot be shown to be safe and effective. A careful review of the FDA’s past decisions on non-therapeutic uses reveals that this reasoning is descriptively incorrect. Further, examining the purposes of FDA oversight demonstrates that the agency is not necessarily normatively required to set an insurmountable bar for showing the safety and effectiveness of non-therapeutic uses. Reconsidering this reasoning as a limit on FDA jurisdiction is warranted at a time when evolutions in both policy and science are opening the door to a potentially diverse market of new, or newly legal, non-therapeutic technologies.


by Lee S. Brett

The Supreme Court’s 2004 decision in Missouri v. Seibert forbade the use of so-called question-first interrogations. In a question-first interrogation, police interrogate suspects without giving Miranda warnings. Once the suspect makes incriminating statements, the police give the warnings and induce the suspect to repeat their earlier admissions.

Lower courts are increasingly interpreting a per curiam Supreme Court case, Bobby v. Dixon, to significantly limit the scope and applicability of Seibert. These courts claim that postwarning statements need only be suppressed under Seibert when there is an “earlier confession to repeat.” In this Note, I argue that this reading of Dixon is erroneous for three reasons. First, the language that lower courts seize upon was obiter dictum. Second, the rule created by a categorical reading of Dixon is unworkable. And third, a limiting reading is inconsistent with the specific dangers of question-first interrogations and the rationales identified in the Seibert decision. When police undermine the effectiveness of Miranda warnings by using question-first tactics, any statements made after the warnings should be suppressed.

This Note received the 2020 Roy L. Steinheimer Law Review Award for outstanding student Note.


by Michael R. Hoernlein

Decades after the Supreme Court mandated in Miranda v. Arizona that police advise suspects of their constitutional rights before custodial interrogation, confusion remains about the contours of the rule, and some law enforcement officers still try to game the system. In his excellent Note, “No Earlier Confession to Repeat”: SeibertDixon, and Question-First Interrogations, Lee Brett presents a careful analysis of the legal landscape applicable to so-called question-first interrogations. Mr. Brett offers a compelling argument urging courts not to interpret Bobby v. Dixon as limiting the application of Missouri v. Seibert to two-step (i.e., question-first) interrogations only when there’s an “earlier confession to repeat.”

I’m a little biased about this topic: I was one of the lawyers representing Bobby Johnson in petitioning the United States Supreme Court to review his case, which was the backdrop for Mr. Brett’s Note. Mr. Brett has done such an outstanding job that there’s not much left for me to say about those legal issues. So, I’d like to use this opportunity to explore false confessions and how the field of behavioral economics—specifically, the phenomenon that psychologist Daniel Kahneman dubs WYSIATI (What You See Is All There Is)—can help explain false confessions and the convictions they produce.


by Mitchell E. McCloy

This Note argues that Virginia’s mandatory jury sentencing scheme, which bars juries from reviewing state sentencing guidelines, impermissibly burdens a defendant’s Sixth Amendment right to a jury trial. By analyzing both judge and jury sentencing guidelines compliance rates from the past twenty-five years, this Note demonstrates that in Virginia, a defendant has a significantly higher chance of receiving a harsher sentence after a jury trial than after a bench trial or a guilty plea. Given that judges rarely modify jury sentences, the defendant is effectively left with a choice between two different sentences before plea negotiations can even begin.

Because it creates this disparity, Virginia’s mandatory jury sentencing scheme is unconstitutional. Jury sentencing may serve a legitimate purpose by empowering a decision maker more in touch with the “conscience of the community” than a judge—the jury. But by limiting the jury’s ability to review sentencing guidelines and to make further modifications to sentences, this particular jury sentencing scheme fails to serve this legitimate purpose and is, therefore, unconstitutional.

During the Virginia General Assembly’s 2020 Regular Session and a 2020 Special Session, lawmakers introduced a variety of bills to modify jury sentencing. Among other things, the bills would make jury sentencing optional for defendants.

This Note assesses those bills and determines whether they adequately address the constitutional problem created by Virginia’s mandatory jury sentencing scheme. The Note cautions against a rosy impression of jury sentencing. Instead, both academic and political figures must reckon with the possibility that political actors could exploit the practice to threaten a defendant’s fundamental right to a jury trial.

This Note received the 2020 Washington and Lee Law Council Law Review Award for outstanding student Note.


by Alexandra L. Klein

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant’s penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy’s excellent Note provides a compelling illustration of this problem in jury sentencing in Virginia. Until very recently, when criminal defendants in Virginia exercised their Sixth Amendment right to a jury trial, they had been sentenced by that jury in a bifurcated trial system. Although the trial judge provides the jury with information about the statutory minimum and maximum sentences, Virginia law provides that juries are not allowed to receive any information about Virginia’s sentencing guidelines. The jury may not offer recommendations about whether sentences should be suspended or run concurrently or consecutively.

Part I of this Comment discusses Mr. McCloy’s findings, analysis, and ultimate conclusions. Part II briefly explores two significant questions that arise from Mr. McCloy’s Note: the consequences of recognizing rights without meaningful enforcement and the problem of jurors’ preference for harsher sentences. This Comment concludes by offering some final thoughts on the necessary work to make our justice system live up to the promise of “Equal Justice Under Law.”


by Doug Ammar, David Carson, Kelly Faglioni, John Fishwick, Mark H. Grunewald, Stephen Halpin, Brandon Hasbrouck, Brant Hellwig, Lyman Johnson, Bill Johnston, Rick Kirgis, Brian Murchison, Joan M. Shaughnessy, and Howard Wall

A tribute to Professor Samuel W. Calhoun, who served on the faculty of the Washington and Lee University School of Law from 1978 to 2020. Calhoun became Professor of Law, Emeritus in 2020.


by Steven J. Cleveland

In the 2019 decision Rucho v. Common Cause, the U.S. Supreme Court concluded that federal challenges to partisan gerrymandering—a practice yielding election results that “reasonably seem unjust”—were non-justiciable. If partisan gerrymandering claims are not federally justiciable, and if that conclusion emboldens politicians, how else might incumbents manipulate election mechanics to preserve their political advantage? This Article explores one possibility that was briefly mentioned by the Rucho majority: the strategic advancement or delay of the date of a federal election. The strategic shift of election day is not simply a theoretical problem. Foreign politicians have strategically altered their election days for partisan advantage, U.S. states have delayed elections to fill vacant seats in the Senate, and members of the U.S. Congress have repeatedly proposed changing the date of federal elections.

Because the U.S. Constitution empowers federal legislators to establish the date of a federal election, just as the Rucho Court emphasized that our charter empowers state legislators to establish federal districts, a court may conclude that any challenge to a shift in the date of an election is non-justiciable. This Article addresses charter provisions not pertinent to partisan gerrymandering that limit legislative discretion regarding a shift in the date of a federal election. Moreover, this Article expands on a growing body of scholarship that recognizes federal legislators as fiduciaries and that imports principles of corporate law to analyze issues of federal election law. Given the foundational importance of the shareholder franchise to corporate law, courts closely scrutinize decisions by directors that impede shareholders’ effective franchise, such as a shift in the date that shareholders elect directors. Those corporate law principles should inform a court’s analysis of any challenge to a shift in the date of a federal election.


by Eldar Haber

Bystanderism is becoming largely digital. If being subjected to perilous situations was once reserved almost solely for the physical world, individuals now might witness those in peril digitally from afar via online livestreams. New technological developments in the field of artificial intelligence (AI) might also expand bystanderism to new fields, whereby machines—not just humans—are gradually positioned to better compute their surroundings, thus potentially being capable of reaching a high statistical probability that a perilous situation is currently taking place in their vicinity. This current and future expansion of bystanderism into the digital world forms a rather new type of digital bystander that might challenge the legal and social meaning of bad Samaritan laws—legal duties to act on the behalf of others in a perilous situation by reporting the events or aiding those in the perilous situation, when the burden or risk of such aid is low. With the rise in the availability of livestreaming crimes on social media platforms, and the rise in AI capabilities, the current legal framework that governs bad Samaritans might become inappropriate in regulating social behavior and personal safety, which in turn might shift to the almost sole prerogative of platform governance—transforming online users and platforms into becoming the new digital Samaritans.