Menu Close

Washington and Lee Law Review - Print Edition

Note

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. RobinsonUnited 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.

Note

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. AndrewsUnited 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.

Article

by Anita Bernstein

This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom. These figurative pillars help support one-sided results in court. However, each of the pillars on examination turns out at least a bit shaky. This Article puts them forward for review to start a necessary discussion.

The locus of this Article is products liability, where a court concludes that a manufactured object is defective or could be called defective by a factfinder following a trial. Drug manufacturers enjoy near-immunity from this consequence. Modern products liability identifies three categories of product defect, and courts insulate drug manufacturers from responsibility for all three.

In clarifying an ill-understood state of the law, this Article holds back on overt condemnation of what it observes. Skepticism about the fit between products liability and prescription drugs certainly could be defended. Judges and juries competent enough to assess a more mundane product might be unsuited to the task of determining defectiveness of a prescription drug. Instead of lamenting the absence of products liability redress for injured drug consumers, this Article pursues transparency about what it reports.

The author argues that the current state of the law appears healthier than it really is because unexamined premises about the no-liability status quo sound plausible and soothing: Figurative pillars hold up a barely seen exception to accountability under the law. Prescription drugs look worthier of indulgence than other products because they purport to increase welfare beyond the satisfaction of individual preferences.

In contrast to other products that purport only to give buyers what they want, pharmaceuticals purport to give every one of us what we need. Judgments that transfer money to individuals at the expense of a savior-sector seem perverse. From there, a deferential-to-manufacturers consensus has emerged and holds steady.

Article

by Ray Worthy Campbell

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants are involved. By requiring an antecedent “top of mind” focus on the forum state when actions that lead to litigation are taken, the Court would exclude from U.S. litigation activities that bear a close relationship to the forum and that would provide a basis for jurisdiction in many, if not most, other nations. This matters especially because the U.S. conducts so much of its national regulation through litigation in state courts and through litigation based on state causes of action. This Article gives fresh emphasis to the notion that states are members of a shared sovereignty, and that state actions implicate national sovereignty as much as actions by the federal branch of government.

The problem is compounded by the incoherency of the Court’s “our federalism” state sovereignty analysis. Other commentators have not focused on how the Court’s assumption in recent personal jurisdiction cases that states are in purely rivalrous relationships contrasts with reality, which is increasingly recognized to involve overlapping, reinforcing, sometimes coordinated spheres of jurisdiction. Rather than treating the states as rivals involved in a zero-sum game, where an assertion of power by one undercuts the power and dignity of another, this Article looks at the polycentric, pluralistic nature of U.S. governance, where state members of a “more perfect union” coordinate, collaborate, pursue shared goals independently, and only sometimes compete.

State sovereignty ultimately is national sovereignty. To exaggerate concepts of state rivalry and exclusiveness in a modern age of legal pluralism serves only to diminish the regulatory reach of individual states, and, ultimately, the nation as a whole. The Court’s narrow focus on sovereignty threatens to make the scope of U.S. jurisdiction far narrower than that of other nations, and by Constitutionalizing that scope to make adjustments in rapidly changing circumstances difficult.

Article

by Anuj C. Desai

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court then treats the two statutes as though they were one. The doctrine thus permits judges to use ordinary doctrines of intra-statute interpretation across the two statutes. Determining that two statutes are “on the same subject” thus gives interpreters a powerful tool of interstatutory interpretation.

How, then, should courts determine whether to treat two statutes as one? If we frame the question through the lens of the two currently predominant theories of statutory interpretation — textualism and intentionalism—we can see that the traditional approach of asking about the statutes’ “subject matter” in the abstract makes little sense. For textualist judges who care about objective meaning, it makes more sense to engage in interstatutory cross-referencing if and only if the audience for the two statutes—the appropriately informed objective reader of the statutes—is the same. For interpreters who care about subjective legislative intent, interstatutory cross-referencing would generally be appropriate if and only if the two statutes were drafted by and came through the same Congressional committees.

Even if one rejects my proposed approaches, thinking about how to fit interstatutory cross-referencing into modern theories of statutory interpretation raises some confounding issues for those theories. In particular, it requires textualists to articulate explicitly who the audience for any given statute is, for without doing so, the textualist has no theoretical basis for determining when interstatutory cross-referencing is appropriate and when it is not. Thus, irrespective of the specifics of my proposals, looking at the ancient doctrine of in pari materia through the lens of modern theories of statutory interpretation sheds light on important questions about statutory interpretation that courts and theorists have largely ignored.

Article

by Meghan J. Ryan

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Article

by Barry Sullivan & Cristina Carmody Tilley

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades?

This Article seeks to address those questions by comparing the print media coverage of two highly salient cases involving similar legal issues decided fifty years apart. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments.

Note

by Ryan E. Johnson

This Note analyzes two intra-Second Circuit splits that make it nearly impossible for prisoners to recover against supervisors under § 1983. First, district courts in the Second Circuit are divided as to whether the five categories of personal involvement defined in Colon v. Coughlin survive the Supreme Court’s decision in Ashcroft v. Iqbal. Personal involvement by the supervisory defendant is a necessary element to impose supervisory liability. Some district courts hold that only the first and third Colon factors survive Iqbal, while others hold that all five factors still apply.

Second, district courts in the Second Circuit are divided as to whether a supervisor is personally involved in a constitutional tort when he or she rejects a prisoner’s grievance complaining of the misconduct. Some district courts always find personal involvement when a supervisor denies a grievance without considering any other factors. Other district courts only find personal involvement when a supervisor investigates the alleged misconduct or answers the grievance with a detailed response.

The Second Circuit must resolve both intra-circuit splits to give full effect to § 1983 because the disagreement allows district courts to dismiss claims on qualified immunity grounds. Government officials are immune from suit and “entitled to qualified immunity” if their actions “did not violate clearly established law.” District courts point to both of the intra-circuit splits as evidence that the law surrounding supervisory liability is not clearly established and therefore grant supervisory defendants qualified immunity.

The confusion surrounding supervisory liability in the Second Circuit perfectly encapsulates how legislatures and courts have quietly dismantled § 1983 as a viable cause of action for prisoners in recent years. Congress passed § 1983 with bold aspirations to punish oppressive government actors who abuse their power by infringing on individuals’ constitutional rights. Given how vulnerable prisoners are by virtue of their incarceration, § 1983 serves as one of the only practical tools they have to put them on equal footing with their government custodians. As the law currently stands in the Second Circuit, this tool is broken.

This Note received the 2019 Washington and Lee Law Council Law Review Award.

Note

by Andrew Robert Klimek

This Note argues that the Racketeer Influenced and Corrupt Organizations Act (RICO) may be suited to cryptocurrency prosecutions. RICO subsection 1962(a) addresses the infiltration of an enterprise by investing proceeds from racketeering activities and this Note contends that a cryptocurrency network could serve as the “enterprise” required by the statute. Instead of having to investigate and prove the relationships in an underlying criminal enterprise, proponents of a RICO case against crypto-criminals could rely on well-documented and publicly available information about the cryptocurrency network to prove the enterprise and the relationships among its members. If accepted by courts, prosecutors and plaintiffs could proceed under investing subsection with assurances that the “enterprise” element of the statute would be satisfied. In addition to punishing criminals, this proposed method would also benefit legitimate cryptocurrency users by discouraging criminals from infiltrating legitimate cryptocurrency businesses.

In order to provide some background, this Note will first summarize the history of cryptocurrencies and RICO. Next, this Note will explore the elements of a RICO claim and the current methods of prosecuting cryptocurrency criminals. The discussion will turn to how cryptocurrency networks could be used to satisfy the enterprise element of the RICO statute. This Note will then examine some potential criticisms of cryptocurrencies as a RICO enterprise. The discussion will conclude with some thoughts regarding the prudence of cryptocurrency prosecutions under RICO and what type of cryptocurrency cases should be prosecuted under RICO. In essence, this Note argues that prosecutors should be able to demonstrate that a criminal using cryptocurrencies has infiltrated an enterprise in violation of RICO, but should exercise restraint unless the criminal is engaging in criminal activities on the scale of traditional organized crime.

This Note received the 2019 Roy L. Steinheimer Law Review Award.

Note

by Courtney Joy McMullan

This Note examines if, and to what degree, courts should consider the pressure put on universities to address sexual misconduct on campus as support for an accused student’s Title IX claim of gender discrimination during university disciplinary proceedings. This Note begins in Part II by discussing the prevalence of campus sexual assault and the ways in which Title IX is used to address it on university campuses. Part III examines reverse Title IX claims by accused students, including the various causes of action and the pleading standards required. Part III also surveys the success of reverse Title IX claims using public pressure on universities to address sexual assault to support their allegations of gender discrimination. Part IV then evaluates the way summary judgment rules and burden-shifting frameworks affect the likelihood of success for reverse Title IX claims. Finally, Part V emphasizes the need for clarity and consistency in the evaluation of reverse Title IX claims. In considering the purposes and policies of Title IX, this Note ultimately argues that reverse Title IX claims, especially those relying on external pressure on universities, should be assessed in a strict and limited manner going forward. This Note concludes in Part VI by discussing the possibilities of proposed changes to federal regulations and their impact on reverse Title IX claims.

css.php