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Washington and Lee Law Review - Print Edition

Article

by Ray Worthy Campbell

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants are involved. By requiring an antecedent “top of mind” focus on the forum state when actions that lead to litigation are taken, the Court would exclude from U.S. litigation activities that bear a close relationship to the forum and that would provide a basis for jurisdiction in many, if not most, other nations. This matters especially because the U.S. conducts so much of its national regulation through litigation in state courts and through litigation based on state causes of action. This Article gives fresh emphasis to the notion that states are members of a shared sovereignty, and that state actions implicate national sovereignty as much as actions by the federal branch of government.

The problem is compounded by the incoherency of the Court’s “our federalism” state sovereignty analysis. Other commentators have not focused on how the Court’s assumption in recent personal jurisdiction cases that states are in purely rivalrous relationships contrasts with reality, which is increasingly recognized to involve overlapping, reinforcing, sometimes coordinated spheres of jurisdiction. Rather than treating the states as rivals involved in a zero-sum game, where an assertion of power by one undercuts the power and dignity of another, this Article looks at the polycentric, pluralistic nature of U.S. governance, where state members of a “more perfect union” coordinate, collaborate, pursue shared goals independently, and only sometimes compete.

State sovereignty ultimately is national sovereignty. To exaggerate concepts of state rivalry and exclusiveness in a modern age of legal pluralism serves only to diminish the regulatory reach of individual states, and, ultimately, the nation as a whole. The Court’s narrow focus on sovereignty threatens to make the scope of U.S. jurisdiction far narrower than that of other nations, and by Constitutionalizing that scope to make adjustments in rapidly changing circumstances difficult.

Article

by Anuj C. Desai

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court then treats the two statutes as though they were one. The doctrine thus permits judges to use ordinary doctrines of intra-statute interpretation across the two statutes. Determining that two statutes are “on the same subject” thus gives interpreters a powerful tool of interstatutory interpretation.

How, then, should courts determine whether to treat two statutes as one? If we frame the question through the lens of the two currently predominant theories of statutory interpretation — textualism and intentionalism—we can see that the traditional approach of asking about the statutes’ “subject matter” in the abstract makes little sense. For textualist judges who care about objective meaning, it makes more sense to engage in interstatutory cross-referencing if and only if the audience for the two statutes—the appropriately informed objective reader of the statutes—is the same. For interpreters who care about subjective legislative intent, interstatutory cross-referencing would generally be appropriate if and only if the two statutes were drafted by and came through the same Congressional committees.

Even if one rejects my proposed approaches, thinking about how to fit interstatutory cross-referencing into modern theories of statutory interpretation raises some confounding issues for those theories. In particular, it requires textualists to articulate explicitly who the audience for any given statute is, for without doing so, the textualist has no theoretical basis for determining when interstatutory cross-referencing is appropriate and when it is not. Thus, irrespective of the specifics of my proposals, looking at the ancient doctrine of in pari materia through the lens of modern theories of statutory interpretation sheds light on important questions about statutory interpretation that courts and theorists have largely ignored.

Article

by Meghan J. Ryan

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Article

by Barry Sullivan & Cristina Carmody Tilley

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades?

This Article seeks to address those questions by comparing the print media coverage of two highly salient cases involving similar legal issues decided fifty years apart. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments.

Note

by Ryan E. Johnson

This Note analyzes two intra-Second Circuit splits that make it nearly impossible for prisoners to recover against supervisors under § 1983. First, district courts in the Second Circuit are divided as to whether the five categories of personal involvement defined in Colon v. Coughlin survive the Supreme Court’s decision in Ashcroft v. Iqbal. Personal involvement by the supervisory defendant is a necessary element to impose supervisory liability. Some district courts hold that only the first and third Colon factors survive Iqbal, while others hold that all five factors still apply.

Second, district courts in the Second Circuit are divided as to whether a supervisor is personally involved in a constitutional tort when he or she rejects a prisoner’s grievance complaining of the misconduct. Some district courts always find personal involvement when a supervisor denies a grievance without considering any other factors. Other district courts only find personal involvement when a supervisor investigates the alleged misconduct or answers the grievance with a detailed response.

The Second Circuit must resolve both intra-circuit splits to give full effect to § 1983 because the disagreement allows district courts to dismiss claims on qualified immunity grounds. Government officials are immune from suit and “entitled to qualified immunity” if their actions “did not violate clearly established law.” District courts point to both of the intra-circuit splits as evidence that the law surrounding supervisory liability is not clearly established and therefore grant supervisory defendants qualified immunity.

The confusion surrounding supervisory liability in the Second Circuit perfectly encapsulates how legislatures and courts have quietly dismantled § 1983 as a viable cause of action for prisoners in recent years. Congress passed § 1983 with bold aspirations to punish oppressive government actors who abuse their power by infringing on individuals’ constitutional rights. Given how vulnerable prisoners are by virtue of their incarceration, § 1983 serves as one of the only practical tools they have to put them on equal footing with their government custodians. As the law currently stands in the Second Circuit, this tool is broken.

This Note received the 2019 Washington and Lee Law Council Law Review Award.

Note

by Andrew Robert Klimek

This Note argues that the Racketeer Influenced and Corrupt Organizations Act (RICO) may be suited to cryptocurrency prosecutions. RICO subsection 1962(a) addresses the infiltration of an enterprise by investing proceeds from racketeering activities and this Note contends that a cryptocurrency network could serve as the “enterprise” required by the statute. Instead of having to investigate and prove the relationships in an underlying criminal enterprise, proponents of a RICO case against crypto-criminals could rely on well-documented and publicly available information about the cryptocurrency network to prove the enterprise and the relationships among its members. If accepted by courts, prosecutors and plaintiffs could proceed under investing subsection with assurances that the “enterprise” element of the statute would be satisfied. In addition to punishing criminals, this proposed method would also benefit legitimate cryptocurrency users by discouraging criminals from infiltrating legitimate cryptocurrency businesses.

In order to provide some background, this Note will first summarize the history of cryptocurrencies and RICO. Next, this Note will explore the elements of a RICO claim and the current methods of prosecuting cryptocurrency criminals. The discussion will turn to how cryptocurrency networks could be used to satisfy the enterprise element of the RICO statute. This Note will then examine some potential criticisms of cryptocurrencies as a RICO enterprise. The discussion will conclude with some thoughts regarding the prudence of cryptocurrency prosecutions under RICO and what type of cryptocurrency cases should be prosecuted under RICO. In essence, this Note argues that prosecutors should be able to demonstrate that a criminal using cryptocurrencies has infiltrated an enterprise in violation of RICO, but should exercise restraint unless the criminal is engaging in criminal activities on the scale of traditional organized crime.

This Note received the 2019 Roy L. Steinheimer Law Review Award.

Note

by Courtney Joy McMullan

This Note examines if, and to what degree, courts should consider the pressure put on universities to address sexual misconduct on campus as support for an accused student’s Title IX claim of gender discrimination during university disciplinary proceedings. This Note begins in Part II by discussing the prevalence of campus sexual assault and the ways in which Title IX is used to address it on university campuses. Part III examines reverse Title IX claims by accused students, including the various causes of action and the pleading standards required. Part III also surveys the success of reverse Title IX claims using public pressure on universities to address sexual assault to support their allegations of gender discrimination. Part IV then evaluates the way summary judgment rules and burden-shifting frameworks affect the likelihood of success for reverse Title IX claims. Finally, Part V emphasizes the need for clarity and consistency in the evaluation of reverse Title IX claims. In considering the purposes and policies of Title IX, this Note ultimately argues that reverse Title IX claims, especially those relying on external pressure on universities, should be assessed in a strict and limited manner going forward. This Note concludes in Part VI by discussing the possibilities of proposed changes to federal regulations and their impact on reverse Title IX claims.

Note

by Bonnie Gill

Circuit courts disagree on whether participation in a pretrial diversion program counts as a favorable termination of the conviction or sentence such that a § 1983 action challenging the conviction can proceed. Following the Introduction, Part II of this Note gives an overview of federal and state pretrial diversion programs. Part III explores the statutory and doctrinal background of 42 U.S.C. § 1983, including its interaction with another civil rights statute, 28 U.S.C. § 2254, the federal habeas statute. Both statutes are essential to understanding the Heck v. Humphrey doctrine’s purpose and application to pretrial diversion participants. Part III also explores the development and interpretation of the Heck doctrine in four Supreme Court cases. Part IV discusses the circuit split as it currently stands. Part V presents three proposals for resolving the split and analyzes how closely the proposals adhere to the original purpose of § 1983 as well as the potential implications of these proposals on policy concerns. This Note concludes by suggesting that the Court revisit the issue presented by the Heck circuit split and clarify that challenges to allegedly unconstitutional investigatory practices should never be barred by Heck.

Article

by Saurabh Vishnubhakat

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot yet claim broad autonomy to make substantive political judgments. Indeed, the agency until now has wielded its power mostly in disguise. The other difference is that the era of broad Patent Office power is still in relative infancy. Recent years have seen important analytical and empirical studies of the agency’s dramatic changes, but its new and controversial practices are not yet entrenched. Meaningful reform is still possible, and it is desirable. Patent Office power has grown so much so quickly in part because the political valence of that power has been obscured by a blinkered focus on technological expertise. Understanding the agency’s pernicious structural choices—such as commingling separately delegated powers in order to evade judicial review and stacking adjudicatory panels to reach desired outcomes—in terms of politicization reveals significant risks of injury upon the agency’s ability to make credible commitments, and also illuminates potential solutions.

Article

by Elizabeth Thornburg

Fact inferences made by the trial judge are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Non-conscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This Article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different inferences from the same record. It will then review the psychological literature to show ways in which judges are affected by unconscious forces. It concludes by suggesting reforms to judicial education, use of decision mechanisms that promote conscious deliberation, and civil procedure rule changes designed to increase information and decrease the impact of individual judges’ inferences.

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