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Washington and Lee Law Review - Volume 81:1


by Sarah Gottlieb

Progressive prosecutors have been acclaimed as the new hope for change in the criminal legal system. Advocates and scholars touting progressive prosecution believe that progressive prosecutors will use their power and discretion to address systemic racism and end mass incarceration. Just as this hope has arisen, however, so have concerns that meaningful change cannot be enacted within the criminal system by the very actors whose job it is to incarcerate. This Article highlights these concerns by looking at the bail reforms enacted by four different progressive prosecutors and analyzes the initial promises made, the actions taken to reform and eliminate monetary bail, and the resulting impacts on pretrial incarceration rates and existing racial disparities. This analysis shows how these prosecutors failed to deliver on their promises of reduced incarceration and more equitable treatment in the criminal system, and examines why these efforts often resulted in a shift to more conservative rhetoric and refocused efforts to incarcerate. Finally, this Article will use bail reform to show why progressive prosecutors are not a reliable method for transforming the criminal legal system due to their lack of transparency and accountability, role as political and adversarial actors, and lack of power to dismantle the carceral state.


by Erin C. Carroll

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Perhaps unsurprisingly then, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds.

As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine.

No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article explains how and provides examples of just what types of metaphors might work.


by Jason Reinecke

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue.

For example, the results show that, in the aggregate, patent-related ideology plays a role in voting and decisionmaking at the Federal Circuit—that is, some judges are more likely to vote in a pro-patentee direction than others. This patent ideology is not explained by political affiliation, nor is it significantly explained by the judges’ prior patent-related experience. The former observation undercuts the assumption made by scholars that if political affiliation does not predict voting in an area of law, then that area of law must either be clear and binding, or there must be a near-consensus about the appropriate principles.

The results also indicate that decisionmaking at the Federal Circuit is influenced by panel effects, which refer to changes in judges’ voting patterns based on the preferences of the other judges on the panel. The study exemplifies how prevalent panel effects can be in an area of law, considering they persist in patent cases at the Federal Circuit despite several reasons to believe panel effects may not exist.

This study also compares decisionmaking in precedential, nonprecedential, and summarily affirmed cases and finds that voting and decisionmaking is most influenced by patent ideology in precedential cases. Prior studies of judicial decisionmaking in other circuits typically focus exclusively on precedential cases, and thus must be interpreted in view of that limitation.

Furthermore, according to the results, judges do not appear to use summary affirmances as a tool to systematically bury cases opposing their patent ideology. To the contrary, decisionmaking in summarily affirmed cases is largely, if not entirely, independent of patent ideology. And judges are not more likely to summarily affirm cases coming out against their patent ideology, when considered as a fraction of the total number of opportunities to issue a summary affirmance.

The results also show that judges tend to write a disproportionate share of opinions favoring their patent ideology. As a result, there is greater risk than previously recognized that the law will develop to reflect the idiosyncratic preferences of a few judges and that opinions will be written ideologically.


by William W. Berry III

Strict liability crimes—crimes that do not require a criminal intent—are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.

In a different galaxy far, far away, mandatory sentences—sentences automatically imposed upon a criminal conviction—are unconstitutional in certain contexts for the exact same reason. Mandatory death sentences risk treating those who do not deserve death the same as those that might.

Two completely separate contexts, two parallel rules of law. Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole. Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes.

This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes. Specifically, the Article argues that courts should reconceptualize mandatory sentences as a type of strict liability. To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences.


by Jordan Hicks

Since the late twentieth century, federal and state jurisdictions across the United States have explored the use of Alternative Dispute Resolution (“ADR”) programs to resolve legal disputes. ADR programs provide extrajudicial mechanisms through which parties can resolve their disputes without the delay and expense of a traditional judicial proceeding. Courts and practitioners alike have lauded ADR programs. For litigators, ADR programs are a way to deliver outcomes to clients quickly and efficiently. For courts, ADR programs are a way to remove cases from overcrowded dockets.

While ADR is generally considered to be speedier and more cost-efficient than a trial, little empirical research has been done to determine which sorts of ADR programs deliver the greatest returns. An examination of the last four decades of ADR programs in Delaware Superior Court may provide just this insight.

Since 1978, the Delaware judiciary has enacted, repealed, and amended three similar, but distinct, iterations of an ADR program in Delaware Superior Court. Because all three iterations were enacted in the same court system, the Delaware ADR program is a microcosm in which different characteristics of ADR programs may be compared against each other. This objective comparison reveals which iteration of the ADR program has proven most efficient for Delaware, and may provide valuable insights for legislators and rule-makers who seek to design efficient ADR programs in jurisdictions across the United States.


by Benjamin G. Davis

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts in different jurisdictions. Whether this approach can be incorporated in the analysis of ADR efficacy on a broader level is the topic of this comment.


by Fenja R. Schick-Malone

Families in the United States suffer from a removal epidemic. The child welfare framework allows unnecessary and harmful intervention into family and parenting matters, traditionally left to the discretion of the parent. Many states allow Child Protective Services (“CPS”) to investigate, intervene, and permanently separate a child from their parents for innocuous activities such as letting the child play outside unattended. This especially affects low-income and minority families.

To prevent CPS from unnecessarily intervening in a family’s decision to let their children engage in independent, unsupervised activities, Utah passed a “free-range” parenting act (“Act”) in 2018. The Act explicitly excludes independent, age-appropriate activities from the definition of neglect. This Act has remained largely unexamined: whether the passage of the free-range parenting law has resulted in a decrease of non-supervision cases referred to and substantiated by CPS is unclear. It is also unclear whether free-range parenting laws are a viable solution to the issue of unnecessary and harmful state intervention, in general.

This Note explores whether the free-range parenting law passed in Utah in 2018 has led to any discernible reduction in non-supervision cases and removals. Since the statistical analysis has significant limitations, the Note then takes a more general approach in examining whether these laws address the causes of unnecessary state intervention. The Note finds that many free-range parenting laws fail to address larger issues in the child welfare system and tend to mainly benefit middle-class and high-income families. A solution will likely require a concerted effort by all three branches of the government. It is imperative that efforts to pass free-range parenting laws are not abandoned but rather utilized for bigger and more equitable change.


by David Pimentel

The legal problem of how to give parents flexibility and how to give children independence cuts to the core of some of our most sacred values: (1) how we raise our kids in this society, (2) the degree to which parents are free to raise their children as they see fit, and (3) the extent to which the state gets to substitute its own judgment for that of parents. Incursions into the family, and disruptions of family security and integrity, should be the exception rather than the rule. Schick-Malone joins a small group of legal scholars who are not content to stand by and watch while families are disrupted and parents are forced to infantilize their children for fear of legal consequences. Her contribution to the discussion and debate in this area is most welcome, as it highlights the problem and raises awareness of the need for better solutions and better approaches.