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Washington and Lee Law Review - Print Edition


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.


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.


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.


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.


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.


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.


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.


by Daniel Fryer

In this Article, written in connection with a symposium honoring Chief Judge Roger L. Gregory’s twenty years on the bench, I place Judge Gregory’s jurisprudence within the tradition of African-American political thought. I suggest that, at bottom, Judge Gregory has a leveling-up jurisprudence that seeks to interpret the Constitution in a way that ensures the least well-off in society are granted the same rights as the most privileged. This brand of democratic theorizing approximates a mainstream position by Black political theorists optimistically seeking to have the least well-off integrated into a fully equal society. By comparing and contrasting his work with other legal and political thinkers in this tradition, I sketch an example of how Judge Gregory uses his role in the judiciary to help shape an America that lives up to the ideals expressed in its founding documents.


by Elena Schiefele

Justice Neil Gorsuch’s approach to textualism, which this Note will call “muscular textualism,” is unique. Most notably exemplified in Bostock v. Clayton County, muscular textualism is marked by its rigorous adherence to what Justice Gorsuch perceives to be the “plain language” of the text. Because Justice Gorsuch’s opinions exemplify muscular textualism in a structured and consistent manner, his appointment to the Supreme Court provides the forum from which he can influence the decision-making process of other members of the judiciary when they seek guidance from Supreme Court precedent. Accordingly, it is important for both advocates and judges to understand the muscular textualist analysis and its often rights-restrictive results.

Muscular textualism departs from new textualism, the interpretive approach Justice Scalia promoted, in several respects. This Note focuses on two main differences between muscular textualism and new textualism: muscular textualism’s enhanced literalness, which causes the interpreter to adopt the most basic, narrow, and superficial interpretation of the text rather than exploring the nuances of the phrase at issue, and muscular textualism’s constrained view of what context interpreters may consider to discover the proper meaning of the text.

Part III of this Note applies the framework developed in Part II to two interpretive questions that have created a circuit split. First, it examines whether Section 2 of the Voting Rights Act prohibits restrictive voter ID laws. It then turns to Title III of the Americans with Disabilities Act and asks whether plasma centers are subject to compliance with Title III. Finally, this Note concludes by pointing to the potential impact of muscular textualism beyond the confines of statutory interpretation.


by Rosa Nielsen

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes seem antiquated. The framework also leads to inconsistent results. This is partly because courts make CIMT determinations using the categorical approach, which is as confusing as it is controversial. In addition, the standard may allow for arbitrary and potentially discriminatory decisions by immigration adjudicators.

This Note evaluates a CIMT determination that the Eighth Circuit recently upheld. There, the court agreed that failure to register as a sex offender involves moral turpitude. This Note argues that the Eighth Circuit applied the categorical approach incorrectly and relied on an outdated case that should be overturned. A violation of Minnesota’s sex offender registration law lacks the requisite depravity and intent to be a CIMT. Further, this Note contends that the moral turpitude standard creates too many problems and should be abandoned in immigration law.