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Washington and Lee Law Review - Print Edition

Article

by Deborah Hellman and Kate M. Nicholson

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused on explicit exclusions of people with particular medical conditions or the standards’ failure to be sufficiently individualized. Amending the protocols to address these concerns, while important, will simply tinker at the margins. The more consequential and harder question is how states should balance the demand to save as many lives as possible while also ensuring that people with disabilities and other vulnerable groups are treated fairly.

To answer that question, this Article distills and analyzes four rationing principles that animate the state standards and contends that none ultimately balances these two important aims in a manner consistent with the Americans with Disabilities Act (ADA) and the moral commitments on which it rests. It thus provides a moral and legal framework to guide the ongoing revision of the standards. The Article concludes by proposing a novel, alternative rationing system that reserves resources to accommodate both efficiency and equity, thereby better instantiating the balance that undergirds the ADA.

Article

by Gregory Day

Antitrust rarely, if ever, gives primacy to a dispute’s subject matter. For instance, exclusionary conduct that raises the price of a lifesaving drug receives the same analysis as a restraint of baseball cards. Since antitrust’s purpose is to promote consumer welfare, the equal treatment of important and mundane goods might appear perplexing. After all, competition to produce affordable foods, medicines, and other necessities would seem to foster consumer welfare more than inane products do.

In fact, defendants generally win antitrust lawsuits even when monopolizing necessities because the primary method of antitrust review is notably deferential to defendants. To explain this landscape, the high prices available in a monopoly should incentivize rivals to enter the market, creating competition and correcting the market. Additionally, people may presumably mitigate high prices by buying a lesser substitute or nothing at all. Since courts apply the same level of deference regardless of the market’s importance, a defendant who cites an efficiency gained from excluding competition can typically survive antitrust scrutiny.

This Article argues that core pillars of antitrust make little sense with necessities. An exclusionary act in an essential market extracts an added premium reflecting society’s vulnerability, making the costs of market power much greater than with mundane goods. The effect is that antitrust courts have systematically underestimated the costs of monopolies and trade restraints in essential markets, causing them to misidentify anticompetitive acts as procompetitive. Indeed, whereas antitrust assumes that consumers enjoy options when faced with monopoly pricing, people who need a necessity such as a life-saving drug will pay the high prices so long as they can. The implications are many. First, a larger spectrum of consumers must pay the monopoly rates. Second, whereas a cartel of artisan belt makers may only charge so much before consumers purchase mass-produced belts, a monopolist can demand a greater premium without losing consumers. Third, this landscape incentivizes collusion since firms can extract more money from more people. Fourth, anticompetitive conduct is more likely to harm marginalized groups who suffer higher switching costs (for example, self-medication over expensive pharmaceuticals) or even complete deprivations of necessities. This Article argues that the concepts of essentialness and inelasticity must be integrated into the substantive analysis of whether conduct is anticompetitive. It provides a logical framework to do so using a seldom employed approach called the “quick look,” which would flip the burden onto the defendant and thereby strip the typical analysis of its deference in essential markets. In fact, since confusion over when the quick look is proper has made it a rarity—despite widespread support for its usage—this Article’s approach would establish an effective place for the test. Also, recognizing the greater level of harm inflicted on especially marginalized populations, the proposal would enhance welfare by beginning to disaggregate the term “consumers.”

Article

by Rachel Rebouché

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.

What might surprise even close observers of abortion policy is how the federal courts, including the Supreme Court, have cited contemporary public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion—a two-drug regimen taken over two days—is an example. The federal district court, in that litigation, drew heavily from public health research demonstrating the health consequences of denied or delayed abortion care.

Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering remote or virtual care. The confluence of regulation, funding, and evidence has helped facilitate both telehealth for abortion and self-managed abortions, which can extend abortion access despite the evisceration of constitutional rights.

This Article argues that current developments in abortion law suggest a way forward that hinges neither on defending nor abandoning the constitutional right to abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent—or more possible—than it is right now.

Article

by Andrew Coan and DeLorean Forbes

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might judicial capacity concerns prompt judges to take countermeasures that discourage constitutional tort suits, effectively reproducing qualified immunity by another name? Can anything be done to prevent this outcome?

This Article takes up these questions, which will remain relevant as long as qualified immunity persists and become urgent if and when the doctrine is seriously reformed or abolished. The first step is to disaggregate the federal judiciary into its component parts. A substantial influx of new constitutional tort litigation poses little threat to the capacity of the Supreme Court because the Justices would not feel compelled to review more than a tiny fraction of these cases. Lower courts, however, must decide every case presented to them and many of them are already staggering under overwhelming workloads. Several of the tools available for managing a sudden surge of cases would raise substantial obstacles to the success of constitutional tort plaintiffs, replicating many, if not all, of the effects of qualified immunity. This outcome is not inevitable, however. Avoiding it will be “Round Two” in the battle over qualified immunity. The most powerful weapons in that fight, as in Round One, will be political and social, rather than legal.

Article

by Carla L. Reyes

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy financial losses.

To solve this problem, this Article introduces a smart-contract-based U.C.C.-1 form built using Lexon, an innovative new programming language that enables the development of smart contracts in English. The proposed “Lexon U.C.C. Financing Statement” does much more than merely replicate the financing statement in digital form; it also performs several U.C.C. rules so that, for the first time, the filing system works as intended. In demonstrating that such a system remains compatible with existing law, the Lexon U.C.C. Financing Statement also reveals important lessons about the interaction of technology and commercial law.

This Article brings cryptolaw to the U.C.C. in three parts. Part I examines the failure of the U.C.C. Article 9 filing system to achieve actual notice and argues that blockchain technology and smart contracts can help the system function as intended. Part II introduces the Lexon U.C.C. Financing Statement, demonstrating how the computer code implements U.C.C. provisions. Part II also examines the goals that influenced the design of the Lexon U.C.C. Financing Statement, discusses the new programming language used to build it, and argues that the prototype could be used now, under existing law. Part III proposes five innovations for the Article 9 filing system enabled by the Lexon U.C.C. Financing Statement. Part III then considers the broader implications of the project for commercial law, legal research around smart contracts, and the interplay between technology-neutral law and a lawyer’s increasingly important duty of technological competence. Ultimately, by providing the computer code needed to build the Lexon U.C.C. Financing Statement, this Article demonstrates not only that crypto-legal structures are possible, but that they can simplify the law and make it more accessible.

Note

by Lauren R. Robertson

For some, the open ocean is prison. The Maritime Drug Law Enforcement Act (MDLEA) prohibits individuals from knowingly or intentionally distributing a controlled substance or possessing it with the intent to distribute. Empowered by the MDLEA, the United States Coast Guard arrests and detains foreign nationals hundreds of miles outside of U.S. territorial waters. After months shackled to Coast Guard ships, these individuals face the harsh reality of American mandatory minimum drug sentencing, judged by the kilograms of drugs on their vessels. But the MDLEA conflates kilograms with culpability. More often than not, those sentenced are fishermen-turned-smugglers due to financial desperation or coercionnot the kingpins the statute aspired to target.

In the First Step Act of 2018, Congress attempted to grant sentencing reprieve to these defendants by extending the safety valve provision to the MDLEA. When it works, the safety valve provision enables judges to sentence below mandatory minimum penalties. Unfortunately, the unique qualities of international drug couriers preclude them from receiving such relief. Until the legislature and presiding judges recognize this, MDLEA defendants will continue to receive irrationally long prison sentences. This Note argues that including the MDLEA as an offense under the safety valve provision fails to mitigate the MDLEA’s harsh mandatory minimum sentences.

This Note begins in Part I by discussing the MDLEA’s history as well as how the Coast Guard arrests these defendants. It then explains how the statutory mandatory minimum sentence interacts with the Sentencing Guidelines and highlights the flaws of this system. Part II addresses the safety valve provision as well as the previous circuit split regarding its applicability to the MDLEA. Part III introduces the First Step Act of 2018 and describes how it resolved that split. Part III then evaluates the effectiveness of the First Step Act’s change and provides a recent case example. Finally, Part IV concentrates on how defendants sentenced under the MDLEA are uniquely incapable of sentencing reprieve. It explores general improvements for the safety valve as well as specific changes for the MDLEA. This Note ultimately argues that Congress must amend the MDLEA’s sentencing regime.

Note

by Ryan D'Ercole

Throughout the 1960s, young people protested for racial and LGBTQ+ equality, women’s rights, and an end to the Vietnam war. In the process, they earned the most fundamental right—the right to vote.

Fifty years ago, in the summer of 1971, the Twenty-Sixth Amendment was ratified. In addition to lowering the voting age to eighteen, the Twenty-Sixth Amendment prescribed that the right to vote “shall not be denied or abridged by the United States or by any State on account of age.” But in the fifty years since ratification, states have continued to enact laws that abridge the right to vote of young people, particularly those who attend college. This Note begins by inventorying current restrictions on college student voting. Despite the persistent nature of these restrictions, the Twenty-Sixth Amendment has remained a little-used enforcement tool even as more states have moved to restrict student voting. As a result, this Note argues that Congress should use its authority under the Twenty-Sixth Amendment’s enforcement clause to protect student voters.

This Note proposes three legislative solutions: (1) automatic voter registration at colleges and universities; (2) polling place requirements at colleges and universities; and (3) a statutory cause of action implementing a burden-shifting, disparate-impact framework to make it easier to bring and adjudicate Twenty-Sixth Amendment claims. All three of these solutions are analyzed in accordance with the Court’s congruence and proportionality framework, first articulated in City of Boerne v. Flores. Such analysis reveals that the proposed solutions are well within Congress’s authority, especially given the history of voting discrimination against college students. As a result, Congress should take these actions to protect voters who have all too often served as our nation’s conscience.

Article

by Daniel Harawa and Brandon Hasbrouck

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system who would treat Blackness as synonymous with crime. Judge Gregory’s jurisprudence can—and frequently does—serve as a model for judges in other circuits who are working to enact the vision of a color-conscious Constitution.

Article

by Leah M. Litman

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Article

by Fred O. Smith, Jr.

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and perspectives of marginalized and subjugated members of the American community. The second is that additional scholarly attention should be given to the moments in which jurists center and elevate the voices and perspectives of the marginalized. To that end, this essay focuses on a Fourth Circuit case in which Chief Judge Roger L. Gregory did center such perspectives: United States v. Curry.

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