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Washington and Lee Law Review - Volume 72:1


by Jordan M. Blanke

The challenge of finding a workable solution for applying the right of publicity is a formidable one because it implicates not only a delicate balance between First Amendment rights and the rights of publicity, but also the complications of varying state laws. The best of the tests developed by the courts so far—the transformative use test—was borrowed from copyright law and itself reflects a careful balance between First Amendment and copyright interests. Additionally, because of dramatic progress in technology, it is likely that in the near future this balancing will often involve not only the rights of publicity and the First Amendment but also copyright law as well.


by R. Garrett Rice

This Note reexamines the three major existing alternatives and concludes that none of them is an effective standard that courts can apply consistently. It addresses this problem by proposing an alternative test that will be easier for courts to apply consistently, will protect video game producers’ reasonable expectations, and is designed specifically for balancing the right of publicity with the First Amendment in the video game context.


by Jay A. Soled & Mitchell M. Gans

For the vast majority of the twentieth century, trusts served two pivotal roles. The first was as a vehicle to help mitigate federal and state estate tax burdens, the rates of which could be quite significant. The second was to assist in asset preservation, safeguarding trust beneficiaries from their profligacy, former spouses, creditors, and the like.

At the start of the twenty-first century, Congress passed legislation that curtailed the impact of the federal estate tax, and many state legislatures have followed suit, either eliminating or significantly reducing their estate taxes. As a result of these legislative changes, trust instrument reliance to mitigate transfer tax burdens is no longer a commonplace objective. Instead, the role of trusts has shifted entirely toward asset preservation, buoyed by state legislative reforms that facilitate fulfillment of this role.

However, state legislative reform measures that are designed to strengthen the asset preservation element of trusts are replete with problems. In particular, they drain government coffers as they pit states against one another and the federal government; furthermore, insofar as they promote an aristocracy-like environment (where wealth cascades down from one generation to the next), they thwart economic mobility, an essential component of our nation’s financial fabric. Using three specific examples of states’ aggressive efforts to attract trust formation within their borders, this analysis demonstrates the shortcomings associated with the evolving role of trusts in asset preservation and its corrosive effects. Because too much is at stake for this role to be left unchecked, this analysis recommends several viable reforms.


by David S. Rubenstein

Federal agencies are key players in our federalist system: they make front-line decisions about the scope of federal policy and whether such policy should preempt state law. How agencies perform these functions, and how they might fulfill them better, are questions at the heart of “administrative federalism.” Some academic proposals for administrative federalism work to enhance states’ ability to participate in federal agency decisionmaking. Other proposals work to protect state autonomy through adjustments to the Supreme Court’s administrative preemption doctrine. As jurists and scholars debate what these proposals entail for federalism, this Article doubles-down with a twist: it examines what these same proposals can do for separation of powers.

As uncovered here, adjustments to the administrative system—although made in federalism’s name—will derivatively affect how national law is made and checked along the separation-of-powers dimension. Moreover, as shown here, federalism-inspired proposals for the administrative system may require a tradeoff in constitutional values. Pushed to decide, we might choose federalism over separation of powers, or vice versa. This Article informs that choice by comparing and contrasting what administrative federalism’s major proposals entail for federalism and separation of powers, simultaneously.


by Margo Kaplan

This Article pushes lawmakers, courts, and scholars to reexamine the concept of pedophilia in favor of a more thoughtful and coherent approach. Legal scholarship lacks a thorough and reasoned analysis of pedophilia. Its failure to carefully consider how the law should conceptualize sexual attraction to children undermines efforts to address the myriad of criminal, public health, and other legal concerns pedophilia raises. The result is an inconsistent mix of laws and policies based on dubious presumptions. These laws also increase risk of sexual abuse by isolating people living with pedophilia from treatment.

The Article makes two central arguments: (1) although pedophilia does not fit neatly into any existing legal rubric, the concept of mental disorder best addresses the issues pedophilia raises; and (2) if the law conceptualizes pedophilia as a mental disorder, we must carefully reconsider how several areas of law address it. Specifically, it argues that sexually violent predator statutes expand state power to civilly commit individuals by distorting the concept of pedophilia as a mental disorder. At the same time, anti-discrimination law is dismissive of pedophilia as a mental disorder, excluding it from civil rights protections ordinarily associated with mental illness. Closer examination of these distinctions reveals them to be based on questionable premises.

The law should take pedophilia seriously as a mental disorder. Many individuals living with pedophilia pose a danger to others. Yet we should not categorically deny pedophilia the civil rights protections afforded to other mental disorders without a convincing normative justification supported by cogent scientific evidence. Strengthening civil rights protections for those with pedophilia also increases access to treatment and support that helps prevent child abuse.


by Russell L. Christopher

Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty years of death row incarceration is unconstitutional. Nearly every lower court disagrees, reasoning that prisoners have the choice of pursuing appellate and collateral review (with the delay that entails) or crafting the perfect remedy to any delay by submitting, as Justice Thomas has invited complaining prisoners to do, to execution. By choosing the former, any resulting delay is self-inflicted; delayed executions are prisoners’ own fault. Despite this argument’s commonsense appeal, left unexplained is how prisoner fault inoculates state-imposed punishment from Eighth Amendment violation. Lacking a rationale for the prisoner fault argument, this Article proposes the two most obvious candidates: (i) analogizing to fault attribution for delays in the Sixth Amendment speedy trial right context; and (ii) choosing post-conviction review rather than submitting to execution, prisoners waive Eighth Amendment challenge of the resulting delay. But neither is persuasive; moreover, each proposed rationale presupposes the existence of the very right that Justice Thomas and nearly every court vigorously deny: an Eighth Amendment right against excessively delayed execution. The absence of a persuasive rationale exposes prisoner fault as irrelevant and removes the primary obstacle to courts recognizing that execution following decades of death row incarceration constitutes cruel and unusual punishment.