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Washington University Journal of Law & Policy
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This is an Open Access Journal

Open Access journal
ISSN (Print) 1533-4686 - ISSN (Online) 1943-0000
Published by Washington University in St. Louis

[4 journals]

Press Freedom and the Espionage Act: A Critical Juncture
- Authors: Ethan Thompson
  Abstract: Historically, the number of media leak prosecutions under the Espionage Act have been infrequent. The number of prosecutions, however, has been rising in recent years. This Note details the 2019 indictment of Wikileaks founder, Julian Assange. Thompson proposes a statutory framework that aims to balance the government’s legitimate interest in protecting classified information with the public benefit resulting from the disclosure. Thompson’s proposal would allow courts to distinguish espionage and acts that threaten U.S. Security from leaks that serve the public interest. This Note analyzes the history of the Espionage Act, the critical juncture determining how future prosecutions under the Espionage Act will be conducted, and proposed policy and legal recommendations to protect the freedom of the press and allow news outlets to perform their vital democratic function of keeping the public informed of government action.
  PubDate: Thu, 09 Sep 2021 10:13:00 PDT
Regulating the Sixth Sense: The Growing Need for Forward-Looking Data
Privacy and Device Security Policy as Illustrated by Brain-Computer
Interfaces
- Authors: Hannah Gallagher
  Abstract: Many of today’s consumers are skeptical of the vast amounts of information technology companies are capable of gathering. Methods of collecting such data have become more invasive over time and have the potential to become compromised or abused. Gallagher urges policymakers to consider the regulations necessary to address privacy and security risks associated with emerging biotechnology such as brain-computer interfaces (“BCI”) without disrupting innovation incentives.This Note analyzes the current state of augmentative BCI technology, the trend of increasingly invasive technology, and proposed policy solutions for governing data privacy. Since BCIs will be collecting data on consumers’ neural signals, accessing their most private thoughts and emotions, the need for adequate data privacy protections is urgent. This Note details elements of a proposed solution including a broad statute equipping an agency to develop adaptable regulations, sufficient enforcement mechanisms, device security standards, and a potential prohibition on collection of certain data types.
  PubDate: Thu, 09 Sep 2021 10:12:55 PDT
Got Milk' A Proposed Model Lactation Policy for American Carceral
Settings
- Authors: Katherine Vega
  Abstract: In recent years, movements led by physicians, the government, and parents have attempted to lessen the stigma of public lactation. As a result, the popularity and publicity of breastfeeding has soared. However, the same response has not been seen within American detention centers. Vega considers the discrepancies and proposes a model policy to ensure that lactating parents be allowed to pump or breastfeed while incarcerated. This Note examines the history of this issue, lessons learned from current problems with the state of lactation in detention centers, and offers a model of a policy that treats lactation as a medical condition and right that is worthy of accommodations and protection in jails and prisons. Vega proposes broad, pro-lactation legislation that does not limit the places people can express breast milk and specifically targets carceral settings as an area of protection to ensure that these protections are granted to people who are incarcerated.
  PubDate: Thu, 09 Sep 2021 10:12:50 PDT
Prevention and Remediation of Police Excessive Force and Similar
Complaints
- Authors: Russel K. Osgood
  Abstract: Currently, many jurisdictions do not have a basic disciplinary system in place with respect to allegations of excessive force. Even those that do have found them to be ineffective for various reasons including police mismanagement. Improving the system is complicated by the multiplicity and variability of U.S. police and sheriff departments. Osgood proposes mandating some form of a statewide or regional police force structure with better training, higher educational requirements for officer entry, less of a militarized appearance, revised review with respect to claims of excessive force, and more. Osgood describes aspects of an ideal state-wide or regional police disciplinary procedure.
  PubDate: Thu, 09 Sep 2021 10:12:45 PDT
How to be a Better Plea Bargainer
- Authors: Cynthia Alkon et al.
  Abstract: Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more. The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.
  PubDate: Thu, 09 Sep 2021 10:12:40 PDT
The Right of Americans to be Protected from Gun Violence
- Authors: Thomas Gabor; Ph.D.
  Abstract: The unrelenting gun violence faced by Americans has reached virtually every setting including Walmarts, festivals, entertainment districts, schools, places of worship, and work places. Altercations involving firearms are far more likely to end in death than those involving other weapons or no weapon at all. Historically, the Second Amendment to the United States Constitution was interpreted as the right to bear arms within the context of military service. In Heller, the Supreme Court ruled that individuals had the right to own an operable gun in their homes for protection. However, the Court made clear the right was not unlimited and that gun ownership could be denied to felons and the mentally ill. Gabor addresses whether the public has the right to be protected from gun violence in their community. Gabor argues that social theory, the Declaration of Independence, and a myriad of other sources require national and state governments to be held accountable for the public safety in the face of gun violence.
  PubDate: Thu, 09 Sep 2021 10:12:30 PDT
Judges for British Subjects in Spanish East Florida
- Authors: M.C. Mirow
  Abstract: In 1784, the sovereignty of St. Augustine and East Florida was transferred to Spain. This study will address several aspects of Zéspedes’s reestablishment of Spanish sovereignty in East Florida. First, it presents the general structure of his government with a particular focus on legal institutions and derecho indiano. Second, it discusses Zéspedes’s legal solutions to Spanish rule in the context of a persistent British population in East Florida during the transition. These solutions included judges for British subjects and ad hoc proclamations from the governor in the absence of comprehensive instructions from the king.
  PubDate: Thu, 09 Sep 2021 10:12:25 PDT
Mission Statement
- PubDate: Thu, 09 Sep 2021 10:12:21 PDT
Title Page
- PubDate: Thu, 09 Sep 2021 10:12:02 PDT
Do Not Resuscitate: The Fight to Revive Inquest Proceedings in the United
States
- Authors: Maryl Evans
  Abstract: When a suspicious death occurs in some states, coroners, medical examiners, or other officials conduct an inquest proceeding to investigate. Part I of this Note traces the roots of inquest proceedings and examines adaptations that have been made by different jurisdictions. Part II analyzes how jurisdictions balance the decedent’s family’s interest in justice and closure with the accused’s constitutional rights and fairness. Part III proposes a hybrid restructuring of inquest proceedings to ensure due process and further the fact-finding principles of an inquisitorial system to benefit all parties. Evans argues states should adopt inquest proceedings that balance the interests of the decedent's family, the accused, and the wider community rather than emulating the adversarial trial-like proceedings of traditional criminal litigation.
  PubDate: Sun, 20 Jun 2021 15:21:03 PDT
Disability Services in Dual Enrollment
- Authors: Benjamin A. Schoenkin
  Abstract: An increasing number of secondary students are taking dual enrollment courses. What does this mean for secondary students with disabilities when there are differences among the laws that apply to students with disabilities at the secondary and college levels' This Note looks at the following question: In dual enrollment classes, are secondary schools required to provide an IDEA or Section 504 FAPE (and the accompanying disability services) to students with disabilities or can the secondary school rely on the disability services that the community college provides to college students' Schoenkin’s legal analysis finds that secondary schools are required to provide an IDEA or Section 504 FAPE (and the accompanying disability services) to students with disabilities in dual enrollment courses. Schoenkin proposes a plan for secondary schools and colleges based on this conclusion.
  PubDate: Sun, 20 Jun 2021 15:20:59 PDT
Pay to Play: Looking Beyond Direct Compensation and Towards Paying College
Athletes for Themselves
- Authors: Luke Tepen
  Abstract: The NCAA prohibits its athletes from profiting from their athleticism while playing in the league. As public support for this policy dwindles, the NCAA must respond. This Note analyzes the policy’s history and the potential constitutional challenge the NCAA could bring against the California law. Tepen urges the NCAA to act swiftly before it is constrained by each state’s own patch-work regulatory framework. By adopting California’s Fair Pay to Play Act, the NCAA can gain control before the government forces its hand. Tepen argues this proposal will best serve the interests of athletes, the NCAA, and fans alike.
  PubDate: Sun, 20 Jun 2021 15:20:54 PDT
"Stairway to Heaven" or Stairway to the Public Domain: Copyright
Infringement of Musical Works Under the 1909 Copyright Act
- Authors: Ellen Komlos
  Abstract: Musical copyright disputes often arise involving various parties, applicable laws, artistic works, and rights at stake. In Skidmore v. Led Zeppelin, the Ninth Circuit considered the scope of copyright protection afforded to works protected under the 1909 Copyright Act, the application of the inverse ratio rule, and the audio version to be played at trial. This Note addresses the clarifications, implications, and remaining sources of confusion resulting from the Skidmore decisions. Part I of this Note examines the history of the Copyright Act and the development of copyright infringement case law in the Second and Ninth Circuits. Part II of this Note describes the harmful effects of the complicated and inconsistent copyright infringement tests. Part III of this Note proposes safeguards to preserve the integrity of the infringement inquiry and further the subsidiary goals of attribution and upfront communication between artists.
  PubDate: Sun, 20 Jun 2021 15:20:49 PDT
A Press Clause Right to Cover Protests
- Authors: Tyler Valeska
  Abstract: As protests have become more frequent, an increasing number of journalists have been targets of harassment and violence. The long-disputed role of the First Amendment’s press clause demands attention now more than ever. This Article demonstrates how a theoretical framework for a revitalized press clause can be operationalized in a particular context: journalists covering protests. Valeska first details the normative and structural justifications for an affirmative press clause right to cover protests. He then considers two proposals for deciding whom the right would protect: first, leaving the determination of who is a journalist to officers on the protest’s ground level, with the decision being subject to a reasonableness standard; second, through a government credentialing process. Valeska concludes by summarizing what the right would accomplish. He argues for media exemptions from related curfew and equipment ordinances, heightened protections against arrest and detainment, and special access to spaces cleared by dispersal orders. This Article demonstrates that we are in a time of intensifying social unrest and that critical prophylactic steps must be taken to shore up protections for one of our most important democratic institutions.
  PubDate: Sun, 20 Jun 2021 15:20:45 PDT
Reimagining Access Rights
- Authors: Jonathan Peters
  Abstract: Lawsuits against public record requestors have been on-going over the last 27 years and are currently on the rise. Government officials argue it is best for the courts to step in immediately if an agency’s disclosure obligations are unclear. Peters analyzes the dangers of these suits which present a clear risk to the free flow of information necessary for the press and the public. Peters examines the current patchwork of access rights derived from norms, FOI laws, state constitutional provisions, common law principles, administrative regulations, statutory privileges, and the First Amendment. Peters argues that a reimagined First Amendment right to receive information is needed to compel reliable access to the government and reduce frustration for citizens. This Article proposes finding a general First Amendment right of access to government records, meetings, places, and events.
  PubDate: Sun, 20 Jun 2021 15:20:40 PDT
Censorship Makes the School Look Bad: Why Courts and Educators Must
Embrace the "Passionate Conversation"
- Authors: Frank D. LoMonte
  Abstract: This Article analyzes the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. The Court held that students have no freedom to choose the content of school-sponsored newspapers or other curricular vehicles, so long as the justification for censorship is “reasonably related to legitimate pedagogical concerns.” LoMonte argues the Court erred in elevating the government’s reputation to a concern of constitutional value. LoMonte urges the Supreme Court to re-think its decision as it has done with respect to persons in other categories. Young people use their talents to organize reform movements and have political opinions worth hearing, particularly about the education they are receiving.
  PubDate: Sun, 20 Jun 2021 15:20:36 PDT

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