Menu Close

Washington and Lee Law Review - Developments

Development

by Cadman R. Kiker III

We are at the dawn of a new era of policing in the United States. In recent months, images of armed police officers patrolling the streets of Ferguson, Missouri, and of a toddler burned by a Georgia SWAT team’s grenade have been indelibly branded into America’s social consciousness. There is a unique bipartisan outcry from Washington in a time otherwise marked by bitter political divides. Politicians and journalists alike are questioning the efficacy of a militaristic police force and the path that led to this shift in the paradigm of policing.

This Essay examines the how and why of police militarization in the United States; it details some of the most egregious instances of police overreach, mission creep, and proliferation of military-style police units treating citizens as an enemy population. It seems all is quiet in Congress after a few seemingly futile hearings on militarization. The Executive Branch has released suggestions that are expected to manifest in an executive order any day. Unfortunately, all of these solutions are too little, too late. The streets of America are much more akin to a war zone than the democratic nation that our Founders envisioned, and it is up to the people, at a local level, to reclaim what was intended.

Development

by Ronald Turner

In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an individual’s freedom to marry the person of his or her choice, and (2) that interracial marriage bans are conceptually distinguishable from laws forbidding same-sex marriages and therefore do not violate the Constitution. The Essay concludes that Loving is a useful and authoritative analogy supporting the claims of plaintiffs who contend, among other things, that states may not constitutionally deny same-sex couples the right to marry based solely on the traditional view that marriage is, and should only be, the legal union of one man and one woman.

Development

by David S. Levine and Sharon K. Sandeen

Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets Act and the Trade Secret Protection Act, which would create a private cause of action under the federal Economic Espionage Act. This Article addresses the possibility of introducing trolling behavior—using litigation as a means to extract settlement payments from unsuspecting defendants—to trade secret law through creation of a federal private trade secret misappropriation cause of action. Like the existing problem of patent trolls, trade secret trolling has the potential to undermine the structure of trade secret law and create serious problems and costs for innovators across all industries. Thus, this Article addresses the heretofore unexplored link between patent and trade secret trolling established by this legislation. It assesses in detail the benefits and downsides of creation of a federal trade secret misappropriation cause of action and, for the first time, the risk of trolling.

Development

by Colin Miller

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its non-production. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This Essay argues these courts are wrong.

Development

by Kevin Bennardo

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

Development

by Lawrence L. Muir, Jr.

In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: State-controlled cyberunits can act with impunity under the present mix of international and domestic law. No laws govern conduct between nation-states, and, thus, neither victims nor nation‑states have recourse against violators.

This Article suggests that the United States should pursue national interest diplomacy to triangulate Russia and China by negotiating a trilateral cyberlaw treaty. The Article first demonstrates why the United States has failed in bilateral negotiations with these two nations in the past. It proposes that the United States should shift strategies by beginning to pursue national interest diplomacy rather than multilateral diplomacy. This strategy would encourage rapprochement with Russia first, thereby putting pressure on China to join the treaty or else be isolated. Finally, the Article lays out a workable framework on which policymakers can construct the diplomatic means to secure restitution for the victims of cyber-attacks.

Development

by Horace

In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. It decided the inapplicability of audita querela under the English common law, citing cases from 1670, 1701, and 1792. In the course of the opinion it conflated Virginia Code §§ 1-200 and 1-201 and held in dictum that Virginia’s adoption of the common law of England “ends in 1607 . . . . From that time forward, the common law we recognize is that which has developed in Virginia.” This was dictum because the opinion holds the common law of England on the use of the writ of audita querela was the same before and after 1607. Your author submits this dictum is erroneous considering the years of decision of the English cases cited, the plain meaning of the two applicable statutes, and the court’s own precedent.

css.php