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Washington and Lee Law Review - Print Edition


by Jesse M. Cross

A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.

To begin that cross-disciplinary conversation, this Article turns to five themes in the executive-branch literature. These are: (i) the dual-allegiance problem, (ii) bureaucratic resistance, (iii) dual advising-adjudicating roles, (iv) agency capture, and (v) comparative understandings of the judiciary. In each case, theories developed in the executive branch context enrich our understanding of the congressional bureaucracy, while new knowledge about the congressional bureaucracy also forces revisions to those executive-branch theories. In many cases, the congressional bureaucracy also reveals new governance solutions in our tripartite system—solutions that are overlooked when bureaucracy scholarship is confined to studies of a single branch. Through an exploration of these and other lessons, the Article illustrates the many possibilities inherent in a new cross-disciplinary dialogue on the role of bureaucracy in our federal system.


by Irene Oritseweyinmi Joe

Much of the attention following the reversal of a defendant’s wrongful conviction focuses on the role the police or the prosecutor played in perpetuating the injustice. To the extent that the public defender institution’s role is considered, it is often limited to its failure to provide effective assistance of counsel. This Article challenges the conventional wisdom that the public defender institution’s role in addressing a wrongful conviction is limited to ineffective assistance of counsel claims and ends once a wrongful conviction is reversed. At minimum, the legal profession’s mandate for competent representation requires public defenders, and the institutions that house them, to learn from any performance that permitted a wrongful result so that it can limit the possibility that such an error would occur again.

The medical, military, and aviation sectors have adopted sentinel event reviews to broadly examine the behaviors and actions that lead to loss of life or physical harm. Perhaps due to its adversarial underpinnings, the criminal justice system has yet to adopt similar large-scale reviews. In the absence of a similarly expansive review of how each component of the criminal process failed to uphold systemic integrity for any client found to be wrongfully convicted, the public defender institution should engage in its own comprehensive learning process. Such a process should include more direct involvement by trial attorneys in appellate work, greater action by public defender institutional leadership to address the official misconduct of other government actors, and a more formalized review by independent evaluators to unearth any failure to abide by professional licensing standards. By adopting such review methods, the public defender institution would more clearly mirror other entities tasked with protecting the public from significant harm and reduce the systemic brittleness that permits repeat failures in the criminal justice system.


by Lara Morris

Internships have skyrocketed in popularity as they become the new entry-level position for professional careers across the country. Despite their popularity, the legality of internships falls in a gray area created by a vague statute and a flexible, factor-based judicial test. The Fair Labor Standards Act (FLSA), which regulates employment relationships and importantly mandates a minimum wage and hour requirements, was written long before internships became commonplace and provides little direction for how to regulate these positions. In this void, both the Department of Labor and federal courts have developed guidance, the ultimate culmination of which is the modern primary beneficiary test.

The equestrian industry’s attempt at internships is a position known as a “working student.” These positions did not arise in the same Petrie dish or era as many other internships. Instead, this type of internship is an ages-old derivative of the barter economy and apprenticeships. In short, a young, developing equestrian exchanges her labor for benefits such as training and housing—but, notably, not FLSA-complaint wages—with a professional equestrian. This position is seen both as a rite of passage into a career as an equestrian but also as an opportunity to test the waters of the industry. Working students work long hours, take on physically intensive tasks, and are often fully immersed in the industry and their positions.

Do these positions pass the modern primary beneficiary test? This Note applies the factors of the test to the facts of the working student position and asserts that, for many working students, the answer is ‘no.’ This analysis is largely based on an extensive survey and interviews with working students, which were compiled by the Author and further explained within. Finally, this Note suggests solutions that will preserve the significant benefits of the working student position while bringing the equestrian industry into compliance.


by Susan D. Carle

In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention.


by Brenna M. Rosen

Supported decision-making is a relatively new, powerful, and quickly developing alternative to restrictive guardianships and other draconian surrogate decision-making arrangements for individuals with cognitive disabilities. Its power lies specifically in the protection and affirmation of their autonomy, allowing these individuals to remain central in the planning of their lives and affairs. Despite supported decision-making’s theoretical promise, it is often unclear whether and how the model interacts with other legislation presiding over how one may make crucial life choices, such as those at end of life.

This Note attempts to bridge the gap by analyzing how supported decision-making may be a valuable tool in effectuating equal access to end-of-life health care. For several reasons, individuals with disabilities are living longer and are subsequently more likely to encounter complex end-of-life treatment decisions. Unfortunately, they also face significant barriers in accessing health services. Their autonomy is often subjugated in favor of paternalistic norms, potentially rendering them ineligible for certain pain-mitigating care and forcing them to suffer needlessly at end of life. It is possible that through the use of supported decision-making, patients may be able to access pain mitigating treatment that may otherwise be unavailable to them. At the same time that supported decision making is gaining legal traction and public favor, laws like the FDA’s Expanded Access Program, otherwise called compassionate use, and state medical aid in dying legislation are promoting individual autonomy and the ethical concept of mercy by providing alternative avenues to limit suffering at end of life.

Undoubtedly, those with cognitive disabilities wishing to access medical aid in dying or compassionate use are in unique circumstances, but no individual should be forced to suffer through a terminal diagnosis without access to the health care of their choice. Although more research is needed regarding how supported decision-making agreements are commonly used and how they interact with end-of-life legislation, a continued push for expansion and revision of both supported decision-making statutes and end-of-life legislation may legitimize its application to end-of-life pain management. This would halt foreclosure of individuals’ rights to self-determination.


by Alexandra L. Klein

A person’s status may change over time and people should have the right to maximize their autonomy and learn and grow from their experiences. Legal structures must encourage autonomy and growth, rather than producing a static environment that prevents people from challenging external controls imposed upon their lives. Law can create legal structures that sustain an individual’s right to live according to their values. As Ms. Rosen writes, “[i]f an individual is capable of valuing, the wishes stemming from those values should dictate how the individual ought to be treated.” By protecting those values, Ms. Rosen’s Note advises us how the law can be a stronger tool for the project of freedom. The choice of whether to use that tool is ours.


by Amitai Heller

As Ms. Rosen’s Note explains in further detail, the use of supported decision-making creates an opportunity for persons with cognitive impairments to participate more fully in their end-of-life care. While this Comment focuses on the legal requirement for healthcare providers to serve people with cognitive impairments at the end of life, the tenets of patient autonomy, self-determination, and the dignity of risk must be integrated into end-of-life practice to provide guidance where legal requirements are absent or ambiguous. The use of the supported decision-making model in end-of-life care will only succeed when healthcare providers participate in an open-minded manner. It is only through this type of engagement that we empower individuals with cognitive disabilities to participate fully in their own end of life journey.


by Stephen Wilks

This Article frames the killing of George Floyd as the result of flawed business regulation. More specifically, it captures the expansion of third-party policing paradigms throughout local nuisance abatement regulations over a period of time that coincided with the militarization of policing culture across the United States. Premised on the notion that law enforcement alone cannot succeed in reducing crime and disorder, such regulations transform grocery stores, pharmacies, bars, and other retail spaces into surveillance hubs by prescribing situations that obligate businesses to contact the police. This regulatory framework, however, sustains the larger historical project of rationalizing enhanced scrutiny of the public and private spaces that Black people occupy; supplies the imprimatur for wider societal involvement in the scrutiny of Black bodies—particularly by constituencies outside the ranks of traditional policing; and complicates psychological relationships Black people have with the settings they enter, while fueling the continued disregard for their bodily dominion.


by Shaakirrah R. Sanders

This Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Clarence Thomas and Neil Gorsuch have recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.

United States v. Alvarez recently identified the significance of Sullivan and the actual malice rule when announcing First Amendment protection for false speech. Alvarez notably excluded defamation from the categories of protected false speech. No federal district or circuit court that has applied Alvarez to agriculture privacy laws has considered Sullivan or the actual malice rule. Agriculture privacy laws are a type of gag law that seek to: (i) prevent the use of misrepresentations to gain access, employment, or unauthorized entry; (ii) prevent unauthorized or nonconsensual use of video, audio, and photographic cameras or recorders if there was an intent to cause harm to the enterprise; or (iii) impose a duty to submit recordings of animal or agriculture abuse. Some of the legislative histories of these laws demonstrate an intent to prevent undercover investigations into or exposés on the industry. Arkansas has applied a similar type of gag to all commercial businesses.

The Eighth, Ninth, and Tenth Circuits are currently split on the scope of Alvarez’s protection against agriculture privacy and commercial gagging laws. This Article demonstrates how Sullivan and the actual malice rule also balance the First Amendment right of privacy and press to gather and disseminate information about public matters. Part I introduces agriculture privacy and commercial gagging laws. Part II deliberates the civil rights roots and recent resurgence of Sullivan in contemporary jurisprudence. Part III contemplates how Sullivan alleviates First Amendment deficiencies that gagging courts left unaddressed, particularly with regard to the effect of gagging laws on undocumented workers and others in the marketplace of ideas about commercial food production.


by David Dante Troutt

From before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, this Article argues that transformative change can only come about through recognition that the current system achieves the objectives for which it was designed. These objectives must change.