Washington and Lee Law Review

Articles from Vol. 59, No. 4, Fall

A Remembrance of Things Past?: Reflections on the Warren Court and the Struggle for Civil Rights
The logic of passion, even when it serves the right cause, is never irrefutable to someone who is not moved by passion.1I. IntroductionAs the Articles that follow demonstrate, the Warren Court's legacy in the field of civil rights and civil liberties...
A Restatement or a Redefinition: Elimination of Inherent Agency in the Tentative Draft of the Restatement (Third) of Agency
"[I]t is easier for heaven and earth to pass away, than for one stroke of a letter in the law to be dropped." Luke 16.17 (NRSV)I. IntroductionThe inherent agency doctrine is one means by which a third party may subject principals to liability for their...
A Subversive Strand of the Warren Court
I. IntroducttionThe choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense...
Causation, Constitutional Principles, and the Jurisprudential Legacy of the Warren Court
I. IntroductionThe jurisprudence of the Warren Court was inherently political,1 and its legacy, which endures today, is also inherently political. The very term "the Warren Court" is synonymous with notions of progressive values and a long string of...
Come Back to the Nickel and Five*: Tracing the Warren Court's Pursuit of Equal Justice under Law
I. The Korematsu ConundrumThe evil that men do lives after them; The good is oft interred with their bones.William Shakespeare, Julius Caesar1Brown v. Board of Education2 is justifiably hailed as the herald "of effective enforcement of civil rights in...
Criminal Consequences for Making Babies: Probation Conditions That Restrict Procreation
I. IntroductionWhen people make irresponsible choices, courts customarily hold them accountable for their actions through civil or criminal sanctions. However, occasionally courts punish criminal defendants who have made irresponsible choices by removing...
Equal Educational Opportunity by the Numbers: The Warren Court's Empirical Legacy
I. IntroductionTo Chief Justice Earl Warren, footnote eleven in the Brown v. Board of Educatior1 opinion was little more than a mere afterthought.2 Chief Justice Warren's perspective on this issue remains remarkable for many reasons, not the least of...
How the Supreme Court Delivers Fire and Ice to State Criminal Justice
I. IntroductionThe Warren Court left for us an irresistible case study in legal change, particularly for the criminal justice field. Over the years, many people have evaluated the direction of change that the Warren Court wrought in criminal justice....
Intersection and Divergence: Some Reflections on the Warren Court, Civil Rights, and the First Amendment
During Chief Justice Warren's tenure, a substantial body of First Amendment law emerged from the struggle to secure racial equality, and in several instances the Court seemed quite self-consciously to shape First Amendment doctrines so that freedom of...
Irreparability Resurrected?: Does a Recalibrated Irreparable Injury Rule Threaten the Warren Court's Establishment Clause Legacy?
Prologue: The AMI ProblemAfter a federal judge holds that an Acropolis Military Institute (AMI) official mess-hall grace violates the Establishment Clause and grants an injunction forbidding it, AMI's Commander orders an official parade-ground prayer...
Script Kiddies Beware: The Long Arm of U.S. Jurisdiction to Prescribe
I. IntroductionOn Friday, March 26, 1999, a computer virus shut down computer networks across the United States and around the world.1 The virus, dubbed "W97M.Melissa.A" by the anti-virus industry and "Melissa" by the media, came in the form of an E-mail...
The Devil in U.S. V. Jones: Church Burnings, Federalism, and a New Look at the Hobbs Act
I. Introduction[In the wake of Lopez,] [t]his is not the first occasion on which this Court has agonized over the propriety of the gambit of prosecuting criminal conduct which has historically and traditionally been prosecuted under the state system...
The Law and Culture-Shift: Race and the Warren Court Legacy
When we believe it, we'll see it.Saul Alinsky1The questions which one asks oneself begin, at last, to illuminate the world, and become one's key to the experience of others.James Baldwin2I. IntroductionOn June 17, 1968, the very last day of the Warren...
The Warren Court, Criminal Procedure Reform, and Retributive Punishment
I. IntroductionExtensive literature on the legacy of the Warren Court's criminal procedure decisions exists. Scholars have chronicled and assessed in considerable detail how a set of landmark decisions fared both in the Court's subsequent thirty-plus...
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