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Federal Bureaucratic Studies
Get PDFA vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.
To begin that cross-disciplinary conversation, this Article turns to five themes in the executive-branch literature. These are: (i) the dual-allegiance problem, (ii) bureaucratic resistance, (iii) dual advising-adjudicating roles, (iv) agency capture, and (v) comparative understandings of the judiciary. In each case, theories developed in the executive branch context enrich our understanding of the congressional bureaucracy, while new knowledge about the congressional bureaucracy also forces revisions to those executive-branch theories. In many cases, the congressional bureaucracy also reveals new governance solutions in our tripartite system—solutions that are overlooked when bureaucracy scholarship is confined to studies of a single branch. Through an exploration of these and other lessons, the Article illustrates the many possibilities inherent in a new cross-disciplinary dialogue on the role of bureaucracy in our federal system
Tribute to Professor James Moliterno
Get PDFA tribute to Professor James Moliterno, who served on the faculty of the Washington and Lee University School of Law from 2009 to 2022. An internationally active scholar of legal and judicial ethics, Moliterno was most recently the Vincent Bradford Professor of Law. For 21 years prior to joining W&L, he was a member of the faculty of the William & Mary Law School
Keynote Address
Get PDFKeynote address presented virtually at the Washington and Lee Law Review\u27s 54th Annual Lara D. Gass Symposium: The Future of E-Commerce: Is It on a Blockchain? on Friday, March 17, 2023 in Lexington, Virginia
Digital Property Cycles
Get PDFThe present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of the technology, the legitimacy of the demand to own intangible property, or even the value of the assets themselves. Rather, fraud and exploitation are entirely avoidable and predictable outcomes of a situation in which buyers and sellers value assets highly but enjoy little to no protection of their interest in their investment. The solution is not more public service announcements indicating that all NFTs are fraudulent; this is neither true nor to the point. Rather, the only solution is to vindicate investor and purchaser rights in intangible property, so that the legitimate demand for intangible property is channeled into the regular economy instead of gray markets
How the Blockchain Undermined Digital Ownership
Get PDFThe shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the NFT craze, chief among them—have ranged from frivolous opportunities for speculation to outright fraud. Rather than sewing technological seeds that might have yielded a workable proof-of-concept for digital property interests in consumer goods, exploitative blockchain schemes have salted the earth, threatening to discredit the broader, and fundamentally more important, project of constructing a legal framework for digital ownership
Crossing the River Styx: The Memoir of a Death Row Chaplain (2023)
No full textThe Reverend Russ Ford, who served as the head chaplain on Virginia’s death row for eighteen years, raged against the inequities of the death penalty—now outlawed in Virginia—while ministering to the men condemned to die in the 1980s and 1990s. Ford stood watch with twenty-eight men, sitting with them in the squalid death house during the final days and hours of their lives. In July 1990 he accidentally almost became the 245th person killed by Virginia’s electric chair as he comforted Ricky Boggs in his last moments, a vivid episode that opens this haunting book.
Many chaplains get to know the condemned men only in these final moments. Ford, however, spent years working with the men of Virginia’s death row, forging close bonds with the condemned and developing a nuanced understanding of their crimes, their early struggles, and their challenges behind bars. His unusual ministry makes this memoir a unique and compelling read, a moving and unflinching portrait of Virginia’s death row inmates. Revealing the cruelties of the state-sanctioned violence that has until recently prevailed in our backyard, Crossing the River Styx serves as a cautionary tale for those who still support capital punishment.https://scholarlycommons.law.wlu.edu/fac_books/1170/thumbnail.jp
Philip J. Hirschkop
Get PDFPhilip J. Hirschkop, a civil rights lawyer who argued the landmark U.S. Supreme Court case, Loving v. Virginia, that struck down state bans on interracial marriage, delivered the annual Leslie Devan Smith, Jr. Lecture on March 30, 2023 at 1:00 p.m. in the Millhiser Moot Court Room at W&L Law. The event was free and open to the public.
Hirschkop was just three years out of law school when he argued Loving. Along with co-counsel Bernard Cohen, he developed the strategy to revive the case, which had ended five years previously with the conviction of Mildred and Richard Loving for defying Virginia’s ban on interracial marriages.
Hirschkop has been counsel in scores of cases protecting the rights of dissidents, prisoners, activists and others shunned by society, including fighting for and winning the right of the leader of the American Nazi party to be buried in a national cemetery as a U.S. veteran. He was chief counsel to many of the groups opposed to the war in Vietnam, and served as General Counsel to PETA for thirty years.
His clients have included Martin Luther King, Jr, H. Rap Brown, two-time Nobel Laureate Linus Pauling, priests Philip and Daniel Berrigan, Dr. Benjamin Spock, comedian Dick Gregory, attorney William Kunstler, and novelist and activist Norman Mailer.
In the lecture, Hirschkop spoke about his experience with the Loving case and provided broader insights and advice from his long and distinguished career. He was introduced by Professor Jon Shapiro of W&L Law, who worked for and was inspired by Hirschkop in his own early years of legal practice