Volume 74, Fall 2021, Issue 1


Abortion Privilege

Ederlina Co

This Article launches a critical dialogue about the abortion privilege. On the one hand, most abortion patients are low income or live below the poverty line and are disproportionately women of color. Many of these patients encounter multiple restrictions on abortion and must travel lengthy distances to abortion care facilities. These patients take center stage in abortion rights cases and in abortion rights discourse. On the other hand, there is a smaller but not insignificant group of abortion patients for whom abortion care is paid for by private or public health insurance or available out-of-pocket funds. Many of these patients live in states where abortion is unrestricted, and abortion care facilities are accessible often in the county in which they live. These patients experience abortion as a form of ordinary health care and rarely show up in abortion rights cases and abortion rights discourse. They have the abortion privilege.

This Article reveals the abortion privilege and contends that its recognition and thoughtful incorporation into abortion rights law and discourse could help redistribute the oppressive load women without the same privilege carry in connection with the right and help shore up the abortion right. First, demonstrating widespread reliance on abortion, including by women with the abortion privilege, is crucial to the stare decisis argument to uphold Roe v. Wade. Demonstrating widespread reliance on abortion would also help reduce the abortion stigma, which is both harmful to women and makes demonstrating widespread reliance on abortion so difficult in the first place. Second, the abortion debate and abortion itself has changed, but women’s experience with abortion as a form of ordinary health care has not surfaced as part of the public narrative about abortion. Such a narrative demonstrates that abortion is like other medical procedures and confirms that women have the knowledge to decide the outcome of their pregnancies without state intervention. Although not everyone may be willing to see abortion as ordinary health care today, they may be open to seeing it that way in the future if we begin to tell that story. Finally, as equality re-emerges as a prominent theme in legal and political arguments in support of the abortion right, to advance that argument with integrity and to coalesce a base of support around it, there must be concerted efforts within the abortion rights movement to acknowledge and reckon with the inequalities among women who make the abortion decision. The abortion privilege framework is designed to recognize these inequalities and prompt efforts to equalize them. In addition, the framework is designed to preempt the deprioritization of women without the same privilege and make clear to privilege holders that the abortion privilege perpetuates their inequality, too.

The Commercial Determinants of U.S. Public Health Law

Eugene McCarthy

This Article argues that commercial determinants and profit-seeking corporations produce the U.S. government’s divergent and disproportionate approach to vaccine and obesity legislation—and that this divergence imperils public health. Obesity and vaccines are extremely profitable to the food and pharmaceutical industries, both of which wield tremendous government influence. To increase profits, these industries shape the government’s legal response to public health crises in an effort to promote product consumption, while limiting corporate liability. In the case of vaccines, the government’s strong legal response is beneficial; in the case of obesity, the government’s weak legal response is dangerous. To maximize corporate profit, commercial actors corrupt science and (through lobbying and the revolving door) capture government agencies, such as the Food and Drug Administration (“FDA”), Centers for Disease Control and Prevention (“CDC”), and the U.S. Department of Agriculture (“USDA”). A close examination of U.S. vaccine and obesity legislation demonstrates that the government consistently prioritizes private financial interests above U.S. public health. To fuel commodity consumption, the government uses compulsion for vaccines, while emphasizing individual choice and personal responsibility for diet-related obesity. These divergent policies share one thing in common: they keep Americans consuming corporate products.

This argument has four parts. Part I introduces the emerging “commercial determinants of health” theory (“CDoH”). CDoH is in its infancy, but its conceptual framework asserts that corporate interests play an inappropriate role in global public health policy. CDoH currently lacks precision, but this Article addresses specific aspects of U.S. vaccine and obesity legislation to provide it with analytic focus. In doing so, Part II examines the government’s strong legislative approach to immunization, and demonstrates the role that the pharmaceutical industry plays in shaping this approach. Part III turns to the government’s weak obesity-related legislation, and exposes how industry influence over dietary science and consumer choice produces alarming U.S. public health outcomes. Part IV looks at the recent public health convergence of immunization and obesity policies during the COVID-19 pandemic. Countries with overweight populations, like the United States, experienced a fatality rate ten-times higher than normal-weight nations, yet the U.S. government’s public health response ignores obesity’s pivotal role in the crisis. The Article concludes by proposing necessary consistency in U.S. public health legislation. The government must address obesity with the same urgency it uses in promoting vaccination. A consistent legislative approach will help restore faith in a public health system that has lost much of the nation’s trust.

Credibility in an Age of Algorithms

Julia Simon-Kerr

Evidence law has a “credibility” problem. Artificial intelligence creators will soon be marketing tools for assessing credibility in the courtroom. While credibility is a vital concept in the United States legal system, there is deep ambiguity within the law about its function. American jurisprudence assumes that impeachment evidence tells us about a witness’s propensity for truthfulness. Yet this same jurisprudence focuses fact-finders on a distinct inquiry: whether a witness has the status or outward appearance of a person who is worthy of belief. In the face of this equivocation about what credibility in the legal system is or should be, the terms of engagement will be set by the creators of algorithms in accordance with their interests.

This Article illuminates the actual and purported function of credibility in the law through analogies to two existing algorithmic products. One is the U.S. financial credit score. The other is China’s experiment with a “social credit” scoring system. These analogies show that a predictive approach to credibility is structurally distinct from a worthiness-centered one. They also deepen critiques of both approaches as they appear in current practice and as we contemplate the credibility of the future.

Reviving DeShaney: State Created Dangers and Due Process
First Principles 

Matthew Pritchard

Decades have passed since the Supreme Court held in DeShaney v. Winnebago County that the Due Process Clause confers no affirmative right to state protection and therefore does not mandate police or other state services. Meanwhile, federal circuit courts have been at work steadily eroding that holding through something called the state-created danger doctrine. The doctrine imposes due process liability for the “conscience-shocking” mistakes of government employees, even when those employees have done nothing to coerce another person and thus have not used the power of government in any way. The doctrine goes further to punish governments for the failure to use coercive police power when that failure results in a third-party causing harm. The consequence of these applications is a national tort-like regime that incentivizes more aggressive policing and other state interventions under the guise of enforcing the Due Process Clause, all in stark contravention of DeShaney’s central rationale. Yet despite increasingly frequent certiorari petitions on the issue, the Supreme Court has consistently passed on the opportunity to endorse the state-created doctrine or decide how it should apply. And none of the sparse scholarly commentary on the doctrine has attempted systematically to analyze its constitutional underpinnings and proper scope.

This Article conducts that analysis from a textual and historical perspective. It shows first how the state-created danger doctrine has fundamentally diverged from DeShaney and the negative-rights model of American constitutional law. The Article then proposes to reform the doctrine consistently with DeShaney and due process first principles by tying violations to bona fide deprivations of liberty—i.e., harmful exercises of coercive state power—rather than the “conscience-shocking” torts of government employees. So reformed, the doctrine would ensure recovery for those illegitimately harmed by the state while avoiding the many evils, including the significant damage to federalism and separation of powers principles, the current regime has wrought.

“My Bewildering Brain Toils in Vain”: Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery 

Alison J. Lynch, Michael L. Perlin & Heather Cucolo

Individuals with traumatic brain injuries (“TBI”) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. These individuals’ cases are often not handled in the way that the cases of defendants who present with mental illness or intellectual disability may be—there may be no discussion of diversion opportunities or a need for comprehensive evaluation and treatment. Additionally, attorneys assigned to represent this cohort may not have encountered individuals with TBI before and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

We believe that one (at least partial) remedy for the current situation is a turn to therapeutic jurisprudence. Therapeutic jurisprudence (“TJ”) is a field of legal scholarship that encourages its practitioners to use the law as an agent of therapeutic benefit. TJ doctrine emphasizes giving an individual client dignity, voice, validation and voluntariness of action and decision. This is particularly important for an individual with TBI, who will likely have the capacity to make the majority of decisions about his case, but may still need behavioral treatment or interventions for symptoms of the TBI. It is also likely that such a defendant has been seen in the past as one who did not have the capacity for such decision making. We will discuss the ways that TJ plays into these issues, and how the principles of dignity, voice, validation and voluntariness—besides having to inform the law that is relevant to cases of such individuals—are necessities for anyone who works with this population (including caregivers, therapists and counsel). We conclude with some modest suggestions as to how we can begin to make needed changes in the criminal justice system to take all of these issues into account.

The Trial-Step Preparation Procedures—Criminal

Will Rhee & L. Richard Walker

In an effort to provide scholarship immediately useful to the criminal trial advocate, this article proposes a detailed systems workflow to plan and coordinate preparing for federal criminal trials called the Trial Preparation Procedures—Criminal (or “TrialPrepPro—Criminal” for short). The TrialPrepPro—Criminal build upon the Trial Preparation Procedures—Civil, expounded in an earlier article.

Although there is an abundance of anecdotal “learning from doing” trial preparation guidance, empirically testable “learning about doing” trial preparation guidance is rare. We present our TrialPrepPro to learn more about doing.

The TrialPrepPro are modeled after the battle-proven military decision-making process used, with modifications, by all U.S. military services, our NATO allies, and many other foreign militaries. Although there is ample anecdotal or episodic published trial preparation guidance, to the best of our knowledge, the TrialPrepPro are the first attempt to provide a comprehensive, ready-out-of-the-box trial preparation framework.

In light of the U.S. legal profession’s established lack of management training, the TrialPrepPro help a busy prosecutor or defense office coordinate the arduous trial preparation process. Moreover, the TrialPrepPro establish a thoughtful minimum shared professional standard. The TrialPrepPro are meant to be shared, customized, and, above all, used in actual practice. Accordingly, we encourage practitioners to download a free editable copy of the TrialPrepPro from our website (http://wvcle.wvu.edu/TrialPrepPro). We only ask that downloaders complete a short survey and share any modifications.


Anthony C. Sole

Who is guarding the guardians? In the United States, in practice, our police officers are held accountable largely by other police forces or career prosecutors. Recent movements for criminal justice reform have challenged this idea by making the important suggestion that community-based civilian leadership should handle police misconduct claims at the state and local level. However, where we place the power at the federal level has remained largely unchallenged. The Department of Justice (“DOJ”) and, within it, the Federal Bureau of Investigation (“FBI”) are responsible for handling investigations of civil rights abuses by law enforcement. But should we couch the power to investigate police civil rights abuses with a federal prosecutorial body? Should the Attorney General have the sole power to bring pattern or practice investigations? These questions remain open.

Over the last four years, the DOJ has largely abdicated its role in enforcing civil rights laws against law enforcement. The police killings of African American men that tore apart the United States in the spring and summer of 2020 were not unique. These killings are emblematic of law enforcement’s larger disdain for the civil rights of citizens around the country and a long history of racism in policing. In the very protests that followed the killings, police engaged in abhorrent behavior across the country including trapping and gassing protestors in Philadelphia, running over protestors in New York City, and inflicting a brain injury on a seventy-five year old protestor in Buffalo. In response, the DOJ did not just fail to act, but rather itself engaged in shocking abuses of power. The DOJ deployed federal law enforcement in Washington, D.C. to gas protestors in order for President Trump to take a press photo. In Portland, the federal government utilized unmarked law enforcement vehicles and officers in camouflage clothing that engaged in a series of detainments reminiscent of political purges in collapsing police states. There is no justice for victims of police misconduct when the department charged with seeking justice abdicates its role and then engages in serious abuses itself.

This Note suggests that we rethink the structural paradigm of civil rights enforcement with regard to law enforcement abuses by consolidating, expanding, and moving the power to an independent agency outside of the DOJ. The power to achieve systemic change has been seen in the context of employment discrimination through the enforcement of Title VII and the creation of the Equal Employment Opportunity Commission (“EEOC”). This Note provides a historical connection between the act that created the EEOC and larger failed attempts at systemic relief in the realm of criminal justice. It suggests that segregationists thwarted this effort during the 1960s. Instead of a robust system, the country was left with a suboptimal system of enforcement that has been essentially ineffective at combating systemic police civil rights abuses. The Note then advocates for an independent federal agency to ensure stronger enforcement of citizen rights in the context of policing. It disregards what is politically palatable to suggest that the federal government no longer act as a “backstop” to enforce civil rights in policing but rather take a central role.

You’ve Got a FRAND in Me: Rethinking FRAND Agreements & the Role of Antitrust in Light of FTC v. Qualcomm

Matthew Grillo

Something smells rotten in the telecommunications industry. The Ninth Circuit’s recent decision in FTC v. Qualcomm has rejected the role of antitrust law within standard setting markets. The Ninth Circuit’s decision is a crucial misunderstanding of antitrust doctrine and needs to be corrected before the fifth generation (“5G”) of cellular networks is fully implemented. Legal scholars and former enforcement officials have stressed the importance of antitrust law to enforce FRAND agreements and prevent patent holdup. However, in light of FTC v. Qualcomm, the current debate concerning antitrust law’s role in standard setting markets is in a state of flux. First, this Note expands upon the current enforcement debate between the FTC and the DOJ. Second, the Note analyzes Qualcomm’s “no license, no chips” policy and argues that it is a nuanced form of patent holdup. Third, the Note will evaluate the Ninth Circuit’s decision. Lastly, the Note affords some creative solutions that could be adopted by SSOs if antitrust law is no longer a viable enforcement tool. This Note intends to supplement the argument for antitrust enforcement as well as provide a new perspective to the debate in the aftermath of FTC v. Qualcomm.