Washington and Lee Law Review Online

http://scholarlycommons.law.wlu.edu/wlulr-online

List of Papers (Total 117)

Christianity, Ethics, and Politics in the Age of Isabella Chow

This Essay responds to comments by Samuel Calhoun, Wayne Barnes, and David Smolin, made as part of a roundtable discussion on Calhoun’s symposium address Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics. In Part I, I discuss current events, especially as they pertain to...

Reconsidering Christianity as a Support for Secular Law: A Final Reply to Professor Calhoun

This symposium has revolved around Professor Calhoun’s article, which posits that it is completely legitimate, in proposing laws and public policies, to argue for them in the public square based on overtly religious principles. In my initial response, I took issue with his argument that no reasons justify barring faith-based arguments from the public square argument. In fact, I...

If Separation of Church and State Doesn’t Demand Separating Religion from Politics, Does Christian Doctrine Require It?

This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion From Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that they strengthen the case for the...

Education Reform and Detroit’s Right to Literacy Litigation

Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first half of 2019. This litigation has...

Originalism and Congressional Power to Enforce the Fourteenth Amendment

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of...

America's Creed: The Inevitable, Sometimes Dangerous, Mixing of Religion and Politics

Political and philosophical theorists have often advocated for the exclusion of some or all religious perspectives from full participation in politics. Such approaches create criteria—such as public accessibility, public reason, or secular rationale—to legitimate such exclusion. During the 1990s I argued, as an evangelical Christian, against such exclusionary theories, defending...

The Paradox of Christian-Based Political Advocacy: A Reply to Professor Calhoun

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons.1 Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire...

Chilling: The Constitutional Implications of Body-Worn Cameras and Facial Recognition Technology at Public Protests

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little...

Second Thoughts About Stun Guns

The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. Supreme...

Dignity and Second Amendment Enforcement—Response to William D. Araiza’s, Arming the Second Amendment and Enforcing the Fourteenth

William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts to...

Big Law, Public Defender-Style: Aggregating Resources to Ensure Uniform Quality of Representation

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor...

President Donald Trump and Federal Bench Diversity

By Carl Tobias, Published on 05/03/18

The Once and (Maybe) Future Klein Principle

This Response considers Evan Zoldan’s argument, set forth in his recently-published Article, that one can find a coherent principle underlying the vexing case of United States v. Klein in the idea that government is prohibited from what Zoldan calls “self-dealing.” The promise is a seductive one: Klein, and in particular its language prohibiting Congress from dictating “rules of...

Reaching a Sense of Justice: Understanding How the Facilitation Theory of Prosecution Under Federal Criminal Law Can Be Used to Hold Hard Targets Accountable for Financial Crimes and Corporate Corruption

A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct...

An Essay Concerning Some Problems with the Constitutional-Doubt Canon

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority...

The Risk of Regulatory Arbitrage: A Response to Securities Regulation in Virtual Space

In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons...

Rationality Revisited: A Response to Professor Greenberg

Scholarly debate is meant to improve the legal community’s understanding of both the value and the limitations of a particular strand of research. While it is useful to identify areas of principled disagreement, there are times when criticism is not based on different interpretations of law or theory but instead on a misapprehension of the underlying facts or the context in which...