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Washington and Lee Law Review - Volume 76:1


by William W. Berry

In light of the dehumanizing effects of a felony conviction, the Eighth Amendment sentencing principle requiring individualized sentencing determination in capital sentences and juvenile life-without-parole sentences should be extended to all felony cases. In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama. Specifically, the Court held that juvenile offenders also were unique—in their capacity for rehabilitation and their diminished culpability—such that they too deserved individualized sentencing determinations. The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases. Felony convictions, however, are serious too. The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma. As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases. Doing so would require the Court to overrule its prior decisions, including Harmelin v.Michigan, but the Court’s opinion in Miller hints at a willingness to do just that. While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny. The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming. Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations; (2) it would eliminate draconian mandatory sentencing practices; and (3) it would shift the sentencing determination away from prosecutors back to judges. Part I of the Article describes the evolution of the individualized sentencing doctrine. Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing. In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable. Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine for defendants, legislators, and judges alike.


by David B. Wilkins & Brant J. Hellwig

Professor David B. Wilkins of Harvard Law School undertook considerable research in crafting a commencement address that incorporated several prominent figures from the history W&L Law and the University. Professor Wilkins delivered the address to the Washington and Lee Law Class of 2018 at their commencement ceremony. Following the conclusion of the ceremony, Dean Brant Hellwig secured Professor Wilkins’ gracious permission to publish the address in the Washington and Lee Law Review, and provides a written introduction to Professor Wilkins’ speech here.

His speech highlighted not only the contributions of George Washington and Robert E. Lee, for whom the University is named, but also two of the Law School’s most prominent alumni: John W. Davis, former Solicitor General of the United States, President of the American Bar Association, and founder of the Davis Polk law firm; and Supreme Court Justice Lewis F. Powell, Jr.


by David Eggert

This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.


by E. Kyle McNew

In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make them safe for travel, which includes remediating dangerous conditions on adjoining property. It also makes perfect sense from a policy standpoint to say that the Commonwealth should shoulder that burden. This Response disagrees, however, that either of these are reasons to suggest that the Court got it right in Cline v. Dunlora South, LLC, primarily because that conclusion is premised upon viewing the case with too tight of a lens. Rather, the question—and thus the answer—should have been framed more broadly so as to provide guidance for a broader range of fact patterns.


by Ian J. McElhaney

This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement to immunity, before considering a potential legislative solution to some of the present difficulties associated with sovereign immunity. Finally, this Note reviews anticipated impacts in the world of litigation as a result of the duty of reasonable care, before addressing the legal and policy arguments of those who say the impact of such a duty would be negative.

* This Note received the 2018 Washington and Lee Law Council Law Review Award, and was presented at the 2018 Student Notes Colloquium on October 4, 2018.


by Samuel W. Calhoun

The Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended. This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly.


by Caroline Mala Corbin

This Response to Mary Nobles Hancock’s Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.


by Mary Nobles Hancock

This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme Court has placed significant emphasis on the history of legislative prayer in evaluating modern prayer practices, as seen in its two cases Marsh v. Chambers and Town of Greece v. Galloway. Part III examines the first two circuit court decisions to consider challenges to local legislative prayer in the wake of Town of Greece. Though factually identical, the Fourth Circuit in Lund and the Sixth Circuit in Bormuth arrived at opposite holdings concerning the constitutionality of the contested prayer practices. Part IV assesses each of the Lund four factors, comparing the Fourth Circuit’s reasoning in favor of these factors with the Sixth Circuit’s explanation for why they are an inaccurate measure under the Supreme Court’s guidance. In considering both the constitutionality and applicability of these four factors in legislative prayer challenges, this Note ultimately concludes that until the Supreme Court articulates a clearer test, these factors provide a valuable tool for lower courts.


by Jason Rantanen & Sarah E. Jack

The conventional explanation for why people seek patents draws on a simple economic rationale. Patents, the usual story goes, provide a financial reward: the ability to engage in supracompetitive pricing by excluding others from practicing the claimed technology. People are drawn to file for patents because that is how these economic rewards are secured. While scholars have proposed variations on the basic exclusionary mechanism, and there is a general acknowledgement that patents can affect a firm’s reputation, the actual mechanisms of patents’ effect on individuals—human beings—remains relatively uncharted. In this Article we offer a concrete theory and framework for understanding the relationship between patents and individuals in terms other than the lure of supracompetitive pricing. Our framework focuses on the idea of patents as credentials: formal abstractions of a person’s inventive nature. By acting as boundaries and identifiable indicators, patents serve purposes beyond the strictly exclusionary. One purpose is to satisfy social or self-worth needs. The formalization of invention through a patent allows those human beings who want to be recognized by society as inventors to be so recognized, thus fulfilling an innate human desire. A second purpose is economic—but not because of the power to exclude. Instead, as the literature has recognized on the firm level, viewing patents as credentials acknowledges their role as economic signals, indicating particular characteristics possessed by the recipient. Considered in these terms, patents serving as credentials are all around us, from resumes and curriculum vitae to framed patents in offices. But these examples only scratch the surface of the role of patents as credentials in our society. By using the formal lens of patents as credentials, we demonstrate that there are reasons why individuals seek patents beyond the lure of supracompetitive pricing.


by Jeremy Kidd

Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature of probate funding. This Article approaches probate funding in a neutral fashion, analyzing the characteristics of the transaction in order to gain greater insights into not only probate funding but also litigation funding, as well as illuminating the options for lawmakers in deciding how the law should react to the continuing evolution of legal funding generally.