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Washington and Lee Law Review - Volume 78:1


by Katy Barnett; Alison Bell; Jeff Berryman; Neil Birkhoff; Daniel Friedmann; Thomas P. Gallanis; Claire Hagan Eller; Brandon Hasbrouck; Corey Hauser; Brant Hellwig; Margaret Howard; Alexandra L. Klein; Douglas Laycock; Benjamin V. Madison, III; Judith L. Madison; Kyle McNew; Linda Mullenix; Rami Rashmawi; Caprice Roberts; Victoria Shannon Sahani; Joan Shaughnessy; Barry Sullivan; Martha Vazquez; and Edilson Vitorelli

A tribute to Professor Doug Rendleman, who served on the faculty of the Washington and Lee University School of Law from 1988 to 2020. Rendleman became Professor of Law, Emeritus in 2020.


by Courtney K. Cross

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis—especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they fail to disclose their HIV-positive serostatus before engaging in sexual or needle-sharing activities. Passed in response to panic following the discovery of HIV, these laws have not kept pace with medical advancements regarding the transmission and treatment of the infection. As a result, they criminalize behaviors that pose little risk of transmission and punish people who cannot or do not infect others. HIV criminalization laws also contribute to the spread of HIV by disincentivizing HIV testing, which would otherwise connect people to prevention and treatment plans.

While other scholars have critiqued these laws, this Article is the first to argue that state legislatures should pivot away from criminalization toward a comprehensive response to HIV informed by harm reduction—a branch of public health emphasizing risk mitigation. This approach must prioritize both the expansion of preventative services and the repeal of most HIV exposure laws. Simultaneously broadening services and narrowing criminal liability would remove barriers to HIV testing and promote early medical interventions, which reduce the spread of HIV and improve health outcomes. This paradigmatic shift also introduces a framework that can be implemented in other public health contexts that currently over-rely on criminalization throughout the region and the country.


by Keith Cunningham-Parmeter

Employers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses and holding employers automatically responsible for all proven incidents of workplace harassment.

When the Supreme Court created the harassment loophole years ago, it assumed that employers would enact workplace measures to effectively deter harassment. Unfortunately, the #MeToo movement has convincingly demonstrated that the problem of workplace harassment remains widespread despite decades of harassment training. Even though firms express a rhetorical commitment to antiharassment values, many employers engage only in cosmetic compliance and fail to take meaningful steps to actually curb harassment. Closing the harassment loophole would not only represent a tangible legal solution to the ongoing problem of harassment, it would also advance the goals of compensation, deterrence, and cost-spreading that lie at the core of Title VII. Just as companies must pay for all other Title VII violations—regardless of formal policies that prohibit misconduct—courts should hold firms strictly accountable for sexual harassment.


by Claudia E. Haupt and Wendy E. Parmet

Current First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course. This Article examines the permissibility of compelled public health and safety warnings after the Supreme Court’s decision in National Institute of Family & Life Advocates v. Becerra (NIFLA) through the lens of a concurrence to the Ninth Circuit’s en banc decision in American Beverage Ass’n v. City & County of San Francisco (American Beverage II) suggesting that only health and safety warnings dating back to 1791 are presumptively constitutional under the First Amendment.

Rejecting this form of “public health originalism,” this Article first assesses the current doctrinal landscape of compelled public health and safety warnings in the context of commercial speech. It then turns to the history of such warnings, revealing that contrary to apparent assumptions underlying “public health originalism” in its deregulatory form, laws compelling speech including to protect public health existed in the framing era and were not thought to clash, in the modern sense, with individual liberties, including the freedom of expression. Finally, this Article offers a reading of NIFLA in light of the underlying normative interests of speakers and listeners that attempts to reconcile contemporary First Amendment doctrine and compelled public health and safety warnings.


by John O. McGinnis and Linda Sun

As the digital revolution continues to transform competition among businesses, U.S. antitrust enforcement has struggled to remain effective. The U.S. has long depended on a system of dual antitrust enforcement through both the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Modern technology has greatly exacerbated existing structural deficiencies of the two-headed approach, at times resulting in deadlock. The two agencies approach new antitrust issues generated by computational technologies differently and fight over who should lead key investigations, leading to economic uncertainty in the most important business sectors. These enforcement disagreements can also hobble the government’s response to significant national security issues emerging from the interplay of technological competition among private companies and among nation states. Further, dual enforcement hinders government action in the newly critical area of data privacy: the agency responsible, the FTC, suffers a mission overload of enforcing both antitrust and privacy, which can work against each other.

The best solution is for the DOJ to become the sole antitrust enforcement agency. First, antitrust decisions, especially in the technology arena, directly affect geopolitical competition and international relations, a province constitutionally assigned to the president. It therefore makes more sense for the DOJ, which, unlike the FTC, is controlled by the president, to direct antitrust enforcement as one piece of a larger foreign policy. Second, consolidating enforcement in the DOJ would also allow the FTC to concentrate on enforcing privacy law, free from its sometimes-conflicting antitrust mandate. Dual enforcement of antitrust law should yield to single agency enforcement, with the FTC enforcing privacy and the DOJ enforcing antitrust.


by Patricia J. Zettler

Although we often—and rightly—think of the U.S. Food and Drug Administration (FDA) as regulating important therapies for patients, the agency also can regulate non-therapeutic uses of drugs and devices. The Federal Food, Drug, and Cosmetic Act defines drugs and devices as including not only products intended to address disease but also those intended to affect the structure or function of the body, such as cognitive enhancements, wrinkle removers, and recreational drugs. Indeed, if these broad definitions were read literally, many everyday consumer products—such as winter jackets intended to keep wearers’ warm—may be drugs or devices. Accordingly, Congress, courts, and the agency itself have sought reasonable limits on the definitions.

This Article critiques one limit that is sometimes offered: that the FDA cannot regulate certain non-therapeutic technologies because those technologies cannot be shown to be safe and effective. A careful review of the FDA’s past decisions on non-therapeutic uses reveals that this reasoning is descriptively incorrect. Further, examining the purposes of FDA oversight demonstrates that the agency is not necessarily normatively required to set an insurmountable bar for showing the safety and effectiveness of non-therapeutic uses. Reconsidering this reasoning as a limit on FDA jurisdiction is warranted at a time when evolutions in both policy and science are opening the door to a potentially diverse market of new, or newly legal, non-therapeutic technologies.


by Lee S. Brett

The Supreme Court’s 2004 decision in Missouri v. Seibert forbade the use of so-called question-first interrogations. In a question-first interrogation, police interrogate suspects without giving Miranda warnings. Once the suspect makes incriminating statements, the police give the warnings and induce the suspect to repeat their earlier admissions.

Lower courts are increasingly interpreting a per curiam Supreme Court case, Bobby v. Dixon, to significantly limit the scope and applicability of Seibert. These courts claim that postwarning statements need only be suppressed under Seibert when there is an “earlier confession to repeat.” In this Note, I argue that this reading of Dixon is erroneous for three reasons. First, the language that lower courts seize upon was obiter dictum. Second, the rule created by a categorical reading of Dixon is unworkable. And third, a limiting reading is inconsistent with the specific dangers of question-first interrogations and the rationales identified in the Seibert decision. When police undermine the effectiveness of Miranda warnings by using question-first tactics, any statements made after the warnings should be suppressed.

This Note received the 2020 Roy L. Steinheimer Law Review Award for outstanding student Note.


by Michael R. Hoernlein

Decades after the Supreme Court mandated in Miranda v. Arizona that police advise suspects of their constitutional rights before custodial interrogation, confusion remains about the contours of the rule, and some law enforcement officers still try to game the system. In his excellent Note, “No Earlier Confession to Repeat”: SeibertDixon, and Question-First Interrogations, Lee Brett presents a careful analysis of the legal landscape applicable to so-called question-first interrogations. Mr. Brett offers a compelling argument urging courts not to interpret Bobby v. Dixon as limiting the application of Missouri v. Seibert to two-step (i.e., question-first) interrogations only when there’s an “earlier confession to repeat.”

I’m a little biased about this topic: I was one of the lawyers representing Bobby Johnson in petitioning the United States Supreme Court to review his case, which was the backdrop for Mr. Brett’s Note. Mr. Brett has done such an outstanding job that there’s not much left for me to say about those legal issues. So, I’d like to use this opportunity to explore false confessions and how the field of behavioral economics—specifically, the phenomenon that psychologist Daniel Kahneman dubs WYSIATI (What You See Is All There Is)—can help explain false confessions and the convictions they produce.


by Mitchell E. McCloy

This Note argues that Virginia’s mandatory jury sentencing scheme, which bars juries from reviewing state sentencing guidelines, impermissibly burdens a defendant’s Sixth Amendment right to a jury trial. By analyzing both judge and jury sentencing guidelines compliance rates from the past twenty-five years, this Note demonstrates that in Virginia, a defendant has a significantly higher chance of receiving a harsher sentence after a jury trial than after a bench trial or a guilty plea. Given that judges rarely modify jury sentences, the defendant is effectively left with a choice between two different sentences before plea negotiations can even begin.

Because it creates this disparity, Virginia’s mandatory jury sentencing scheme is unconstitutional. Jury sentencing may serve a legitimate purpose by empowering a decision maker more in touch with the “conscience of the community” than a judge—the jury. But by limiting the jury’s ability to review sentencing guidelines and to make further modifications to sentences, this particular jury sentencing scheme fails to serve this legitimate purpose and is, therefore, unconstitutional.

During the Virginia General Assembly’s 2020 Regular Session and a 2020 Special Session, lawmakers introduced a variety of bills to modify jury sentencing. Among other things, the bills would make jury sentencing optional for defendants.

This Note assesses those bills and determines whether they adequately address the constitutional problem created by Virginia’s mandatory jury sentencing scheme. The Note cautions against a rosy impression of jury sentencing. Instead, both academic and political figures must reckon with the possibility that political actors could exploit the practice to threaten a defendant’s fundamental right to a jury trial.

This Note received the 2020 Washington and Lee Law Council Law Review Award for outstanding student Note.


by Alexandra L. Klein

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant’s penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy’s excellent Note provides a compelling illustration of this problem in jury sentencing in Virginia. Until very recently, when criminal defendants in Virginia exercised their Sixth Amendment right to a jury trial, they had been sentenced by that jury in a bifurcated trial system. Although the trial judge provides the jury with information about the statutory minimum and maximum sentences, Virginia law provides that juries are not allowed to receive any information about Virginia’s sentencing guidelines. The jury may not offer recommendations about whether sentences should be suspended or run concurrently or consecutively.

Part I of this Comment discusses Mr. McCloy’s findings, analysis, and ultimate conclusions. Part II briefly explores two significant questions that arise from Mr. McCloy’s Note: the consequences of recognizing rights without meaningful enforcement and the problem of jurors’ preference for harsher sentences. This Comment concludes by offering some final thoughts on the necessary work to make our justice system live up to the promise of “Equal Justice Under Law.”