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Washington and Lee Law Review - Volume 80:1


by Patricia Roberts, Soledad Atienza, Eleanor Myers, Jim Heller, Gary Tamsitt, Neal Devins, Peter Čuroš, Maxim Tomoszek, Veronika Tomoszek, Pavol Žilinčík, Rongjie Lam, José M. de Areilza, Irina Lortkipanidze, Ján Mazúr, Javier Guillen, Lucia Berdisová, and James Étienne Viator

A tribute to Professor James Moliterno, who served on the faculty of the Washington and Lee University School of Law from 2009 to 2022. An internationally active scholar of legal and judicial ethics, Moliterno was most recently the Vincent Bradford Professor of Law. For 21 years prior to joining W&L, he was a member of the faculty of the William & Mary Law School.


by Richard Frankel

Risk assessment and algorithmic tools have become increasingly popular in recent years, particularly with respect to detention and incarceration decisions. The emergence of big data and the increased sophistication of algorithmic design hold the promise of more accurately predicting whether an individual is dangerous or a flight risk, overcoming human bias in decision-making, and reducing detention without compromising public safety. But these tools also carry the potential to exacerbate racial disparities in incarceration, create a false veneer of objective scientific accuracy, and spawn opaque decision-making by “black box” computer programs.

While scholars have focused much attention on how judges in criminal cases use risk assessment to inform pretrial detention decisions, they have paid little attention to whether immigration judges should use risk assessment when deciding whether to detain noncitizens. Yet, the federal immigration detention system is one of the largest in the world, incarcerating nearly 400,000 noncitizens a year. Immigration courts contribute to unnecessary detention and deprivation of liberty due to serious structural flaws. Immigration judges are prone to racial bias, they focus on factors unrelated to danger and flight risk, their bond decisions are nontransparent and opaque, and they are subject to undue political influence that encourages judges to err on the side of detention rather than release.

Given the rise of algorithmic decision-making, the time has come to investigate whether risk assessment has a role to play in immigration court bond decisions. This Article suggests that while there is no easy answer, a well-designed and transparent risk assessment tool could provide a check against the worst features of the current immigration court bond system. Alternatively, even if risk assessment tools prove to be flawed, the information obtained from using them could provide support for broader reform of immigration detention.


by Carissa Byrne Hessick, Ronald F. Wright, and Jessica Pishko

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.


by Michael T. Morley

Over the past century, two global pandemics have struck during American elections—the Spanish Flu of 1918 and COVID-19 in 2020. The legal system’s responses to those pandemics, occurring against distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to address the impact of election emergencies, including public health crises, on the electoral process. States should adopt election emergency laws that both empower election officials to modify an election’s rules as necessary to respond to such disasters and set forth “redlines” to identify certain policies that, even in a disaster, are too risky and problematic to adopt. Courts, for their part, must recognize the unique challenges that election emergency litigation poses and adapt their jurisdictional, procedural, and equitable requirements to be able to effectively adjudicate challenges arising from pandemics and other disasters that threaten the electoral process.


by Bethany R. Berger

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, tradition, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. The legal advocacy that led to Cedar Point continues this trend, both undermining protections for vulnerable immigrant workers in this case and succeeding in a decades-long effort to use exclusion as a constitutional shield against regulation.


by Jesse M. Cross

A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.

To begin that cross-disciplinary conversation, this Article turns to five themes in the executive-branch literature. These are: (i) the dual-allegiance problem, (ii) bureaucratic resistance, (iii) dual advising-adjudicating roles, (iv) agency capture, and (v) comparative understandings of the judiciary. In each case, theories developed in the executive branch context enrich our understanding of the congressional bureaucracy, while new knowledge about the congressional bureaucracy also forces revisions to those executive-branch theories. In many cases, the congressional bureaucracy also reveals new governance solutions in our tripartite system—solutions that are overlooked when bureaucracy scholarship is confined to studies of a single branch. Through an exploration of these and other lessons, the Article illustrates the many possibilities inherent in a new cross-disciplinary dialogue on the role of bureaucracy in our federal system.


by Irene Oritseweyinmi Joe

Much of the attention following the reversal of a defendant’s wrongful conviction focuses on the role the police or the prosecutor played in perpetuating the injustice. To the extent that the public defender institution’s role is considered, it is often limited to its failure to provide effective assistance of counsel. This Article challenges the conventional wisdom that the public defender institution’s role in addressing a wrongful conviction is limited to ineffective assistance of counsel claims and ends once a wrongful conviction is reversed. At minimum, the legal profession’s mandate for competent representation requires public defenders, and the institutions that house them, to learn from any performance that permitted a wrongful result so that it can limit the possibility that such an error would occur again.

The medical, military, and aviation sectors have adopted sentinel event reviews to broadly examine the behaviors and actions that lead to loss of life or physical harm. Perhaps due to its adversarial underpinnings, the criminal justice system has yet to adopt similar large-scale reviews. In the absence of a similarly expansive review of how each component of the criminal process failed to uphold systemic integrity for any client found to be wrongfully convicted, the public defender institution should engage in its own comprehensive learning process. Such a process should include more direct involvement by trial attorneys in appellate work, greater action by public defender institutional leadership to address the official misconduct of other government actors, and a more formalized review by independent evaluators to unearth any failure to abide by professional licensing standards. By adopting such review methods, the public defender institution would more clearly mirror other entities tasked with protecting the public from significant harm and reduce the systemic brittleness that permits repeat failures in the criminal justice system.


by Lara Morris

Internships have skyrocketed in popularity as they become the new entry-level position for professional careers across the country. Despite their popularity, the legality of internships falls in a gray area created by a vague statute and a flexible, factor-based judicial test. The Fair Labor Standards Act (FLSA), which regulates employment relationships and importantly mandates a minimum wage and hour requirements, was written long before internships became commonplace and provides little direction for how to regulate these positions. In this void, both the Department of Labor and federal courts have developed guidance, the ultimate culmination of which is the modern primary beneficiary test.

The equestrian industry’s attempt at internships is a position known as a “working student.” These positions did not arise in the same Petrie dish or era as many other internships. Instead, this type of internship is an ages-old derivative of the barter economy and apprenticeships. In short, a young, developing equestrian exchanges her labor for benefits such as training and housing—but, notably, not FLSA-complaint wages—with a professional equestrian. This position is seen both as a rite of passage into a career as an equestrian but also as an opportunity to test the waters of the industry. Working students work long hours, take on physically intensive tasks, and are often fully immersed in the industry and their positions.

Do these positions pass the modern primary beneficiary test? This Note applies the factors of the test to the facts of the working student position and asserts that, for many working students, the answer is ‘no.’ This analysis is largely based on an extensive survey and interviews with working students, which were compiled by the Author and further explained within. Finally, this Note suggests solutions that will preserve the significant benefits of the working student position while bringing the equestrian industry into compliance.


by Susan D. Carle

In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention.


by Brenna M. Rosen

Supported decision-making is a relatively new, powerful, and quickly developing alternative to restrictive guardianships and other draconian surrogate decision-making arrangements for individuals with cognitive disabilities. Its power lies specifically in the protection and affirmation of their autonomy, allowing these individuals to remain central in the planning of their lives and affairs. Despite supported decision-making’s theoretical promise, it is often unclear whether and how the model interacts with other legislation presiding over how one may make crucial life choices, such as those at end of life.

This Note attempts to bridge the gap by analyzing how supported decision-making may be a valuable tool in effectuating equal access to end-of-life health care. For several reasons, individuals with disabilities are living longer and are subsequently more likely to encounter complex end-of-life treatment decisions. Unfortunately, they also face significant barriers in accessing health services. Their autonomy is often subjugated in favor of paternalistic norms, potentially rendering them ineligible for certain pain-mitigating care and forcing them to suffer needlessly at end of life. It is possible that through the use of supported decision-making, patients may be able to access pain mitigating treatment that may otherwise be unavailable to them. At the same time that supported decision making is gaining legal traction and public favor, laws like the FDA’s Expanded Access Program, otherwise called compassionate use, and state medical aid in dying legislation are promoting individual autonomy and the ethical concept of mercy by providing alternative avenues to limit suffering at end of life.

Undoubtedly, those with cognitive disabilities wishing to access medical aid in dying or compassionate use are in unique circumstances, but no individual should be forced to suffer through a terminal diagnosis without access to the health care of their choice. Although more research is needed regarding how supported decision-making agreements are commonly used and how they interact with end-of-life legislation, a continued push for expansion and revision of both supported decision-making statutes and end-of-life legislation may legitimize its application to end-of-life pain management. This would halt foreclosure of individuals’ rights to self-determination.