Cite Check: Recent Episodes
Washington and Lee Law Review
"Cite Check" is a podcast produced by the Washington and Lee Law Review. Join us as we discuss current legal developments, take in depth looks at recently published articles, and talk all things Law Review.
A discussion with T.J. Benedict about his Note, titled "The Computer Got It Wrong: Facial Recognition Technology and Establishing Probable Cause to Arrest." You can read T.J.'s Note at our Law Review website.
T.J.'s Note analyzes the way facial recognition technology (FRT) is used among police to identify suspects using photographs or still-images from videos. As T.J. and I discuss, the technology is far from perfect. Recent studies indicate that many FRT systems are less effective at identifying people of color, women, older people, and children, plausibly because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. TJ's Note explores the intersection of facial recognition technology and probable cause to arrest, proposing a framework for how courts can evaluate FRT and probable cause. T.J. argues that an FRT identification alone is insufficient to establish probable cause. FRT, T.J. posits, relies on flawed inputs (non-diverse data) that lead to flawed outputs (demographic discrepancies in misidentifications).
A discussion with Elena Schiefele '22 about her Note, titled "When Statutory Interpretation Becomes Precedent: Why Individual Rights Advocates Shouldn't Be So Quick To Praise Bostock." You can read Elena's Note at our Law Review website.
Elena's Note takes a deep dive into U.S. Supreme Court Justice Neil Gorsuch’s approach to textualism, which Elena calls “muscular textualism." This muscular textualist approach was most notably exemplified in Bostock v. Clayton County, in which the Supreme Court held that the Civil Rights Act's prohibition of "discrimination" on the basis of "sex" includes discrimination based on sexual orientation and gender identity. Muscular textualism, Elena highlights, is marked by its rigorous adherence to what Justice Gorsuch perceives to be the “plain language” of the text, at the exclusion of legislative history and social context. Although the Bostock opinion expanded LGBTQ+ civil rights, Elena argues that Justice Gorsuch's approach, if applied elsewhere, could lead to more rights-restrictive decisions at the high court.
In our conversation, Elena discusses Justice Gorsuch's approach in Bostock, the ways in which muscular textualism departs from new textualism, and her application of the muscular textualist framework to two civil rights statutory interpretation issues that have divided the circuit courts. Ultimately, Elena argues, civil rights advocates might not be pleased with future decisions reached through muscular textualism.
A discussion with Jordan Miceli '22 about her Note, titled "The Haunting of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape." You can read Jordan's Note at our Law Review website.
Pregnant rape victims have three options: terminate the pregnancy, place the child for adoption, or keep and raise the child. In the Commonwealth of Virginia, if a rape victim chooses to keep and raise a child conceived through rape or place it for adoption, her rapist may, under Virginia law, attempt to assert his parental rights over that child. Unless a court or jury finds the father guilty of the crime of rape beyond a reasonable doubt, Virginia law deems him a viable parent, and he has all of the rights associated with that parentage. Jordan's Note argues that the Commonwealth’s statutory framework forces women who become pregnant through rape to make an extraordinarily difficult decision: abort the pregnancy, removing the risk of her attacker reentering her life or choose to put the child up for adoption or raise the child as her own and face the risk that her unindicted rapist will assert his parental rights over the child. Her Note proposes a draft statute that is now before the Virginia General Assembly.
A discussion with Professor Lissa Griffin and Thomas Kidney led by Volume 78 Online Roundtable Editor Rebecca Mitchell. Listen in as Professor Griffin and Thomas Kidney talk through their article recently published in the Washington and Lee Law Review Online, Comparative Judicialism, Popular Sovereignty and the Rule of Law: The U.S. and U.K. Supreme Courts. Join us to dig a little deeper into the "special relationship" between these two Courts.
A discussion with Professors Melanie Wilson and Stephen Smith led by Volume 78 Editor-in-Chief Corey Hauser. Professors Wilson and Smith discuss their recently published articles in the Washington and Lee Law Review Online. Listen in to learn more about how courts continue to weather the COVID-19 pandemic as criminal trials resume across the country.