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Washington and Lee Law Review - Note

Note

Not Commodities: Proposing a More Protective Interpretation of the Child Sex Trafficking Statute for Victims and Defendants

by Kimberly Blasey

This Note addresses how courts should interpret the “reasonable opportunity to observe” standard when assessing evidence. In other words, what quantum of evidence is, and should be, sufficient to prove a defendant had a “reasonable opportunity to observe” a sex trafficking victim? Would a singular brief encounter with an older-appearing prostitute satisfy the standard? If so, would the mere fact that the “prostitute” was actually a minor be the only evidence needed to obtain a conviction? Or would the defendant’s intention and attempt to order services from an adult prostitute shed light on the reasonableness of his observation opportunity? Moreover, in the age of increasing technology, would trafficking a minor through a webcam videochat satisfy the standard? For instance, would a man in the United States requesting sexual performances from a Filipino child over videochat constitute a “reasonable opportunity to observe” that child even without an in-person, face-to-face interaction? This Note answers these questions.

Part II analyzes three recent cases that employ the “reasonable opportunity to observe” standard: United States v. Robinson, United States v. Copeland, and United States v. Valas. It then determines which factors these cases reveal as sufficient to constitute a “reasonable opportunity to observe.” Part III discusses how the currently utilized factors and interpretation of the standard create two issues: under-criminalization of legitimate forms of sex trafficking and over-criminalization of non-trafficking behavior. Part IV articulates a solution by presenting a revised list of factors that courts should consider when determining whether a defendant had a “reasonable opportunity to observe” a victim.

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Note

Limited Privacy in “Pings:” Why Law Enforcement’s Use of Cell-Site Simulators Does Not Categorically Violate the Fourth Amendment

by Lara M. McMahon

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after analyzing these four factors, a court concludes that law enforcement officers conducted a Fourth Amendment search, the court must then ask whether the search was reasonable. Cell-site simulators are generally used in the “enterprise of ferreting out crime.” Thus, if law enforcement’s use of a cell-site simulator amounts to a Fourth Amendment search, that search should be considered unreasonable, and therefore violative of the Fourth Amendment, if it was conducted without a warrant.

The Note also provides background information regarding the development and use of cell-site simulators at the federal, state, and local levels. Part II lays out a general framework for analyzing Fourth Amendment search and seizure cases. Part II.A concludes that law enforcement’s use of a cell-site simulator does not constitute a Fourth Amendment seizure, but Part II.B argues that it may constitute a Fourth Amendment search. Part II.B then delves into Fourth Amendment search case law, chronicling several key Supreme Court decisions that apply both the traditional, physical trespass test and the Katz reasonable expectation of privacy test to various electronic surveillance techniques. Part II.B next analyzes the three cell-site simulator cases referenced earlier in this Part—Maryland v. Andrews, United States v. Lambis, and Jones v. United States—and concludes that the courts in Andrews and Jones (D.C.) came to overly broad conclusions in holding that law enforcement’s use of cell-site simulators categorically violates individuals’ expectations of privacy. Part III proposes four factors courts should consider to determine whether, on a case-by-case basis, law enforcement’s use of a cell-site simulator constitutes a Fourth Amendment search. Part IV addresses the Fourth Amendment’s reasonableness requirement and concludes that the warrant preference model for determining reasonableness is best-suited to cell-site simulators.

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Note

If the Shoe Fits: Rethinking Minimum Contacts and the FSIA Commercial Activity Exception

by Jacqueline M. Fitch

This Note considers whether, under the direct effect clause of the FSIA commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity.

When United States citizens initiate legal action against a foreign entity, they face a significant jurisdictional obstacle—the Foreign Sovereign Immunities Act (FSIA). The FSIA provides a general grant of immunity to foreign states and their instrumentalities from United States court jurisdiction; however, it establishes a number of exceptions where a foreign sovereign’s acts are subject to adjudication in the United States. Prior to the FSIA, the United States exercised absolute sovereign immunity, leaving any citizen injured by foreign state action with no remedy. But increased international commerce during the twentieth century led to the application of a more restrictive interpretation of immunity and the adoption of the FSIA’s commercial activities exception. The commercial activities exception contains three clauses, each providing grounds for lifting a foreign state’s immunity when a state’s commercial act impacts the United States. This Note examines the third clause of the commercial activities exception—the “direct effect” clause. The direct effect clause provides an exception to the grant of immunity for “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” This note argues that recognizing foreign sovereigns as “persons” under the Due Process Clause is improper, and that reading a minimum contacts test into the direct effect clause is contrary to the structure and intent of the FSIA commercial activities exception.

 

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Facing the Inevitable: The Inevitable Disclosure Doctrine and the Defend Trade Secrets Act of 2016

by M. Claire Flowers

Multiple federal courts have recognized and applied the inevitable disclosure doctrine in cases brought by employers against former employees under the DTSA. The inevitable disclosure doctrine allows a business to temporarily enjoin the new employment of a former employee by a competitor on the theory that the employee learned confidential information while working for that business which the employee cannot possibly forget or refrain from relying on during her employment with the competitor. The application of this doctrine under the DTSA is controversial for two reasons. First, some states refuse to recognize the inevitable disclosure doctrine due, in part, to its restrictive effect on labor mobility. Secondly, the application is controversial because some practitioners thought that the language of the DTSA preempted the application of this doctrine at the federal level.

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Note

Municipal Bonds in Bankruptcy § 902(2) and the Proper Scope of “Special Revenues” in Chapter 9

by Alexander D. Flachsbart

Recent scholarship on Chapter 9 of the Bankruptcy Code has focused on everything from the efficacy of municipal bankruptcy to its intersection with pensioner rights and collective bargaining agreements. However, few (if any) writers have addressed the more intricate question of whether, how, and why certain bondholders have claims superior to other bondholders for scarce municipal assets. This Note seeks to fill that void.

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