Digital Commons Network^™

The Wild, Wild West Of Laboratory Developed Tests, John Gilmore

Washington and Lee Law Review Online

Since the 1950’s, scientists have built novel technologies to screen for genetic diseases and other biological irregularities. Recently, researchers have developed a method called “liquid biopsy” (as opposed to a standard tissue biopsy) that uses a liquid sample (e.g., blood) to non‑invasively spot biomarkers indicating different types of cancers in the patient’s body. While the U.S. Food and Drug Administration (FDA) has fully cleared a small number of liquid biopsy tests under its rigorous and expensive review process, most biotech companies have instead followed a less restrictive regulatory path through the Centers for Medicare and Medicaid Services (CMS), which label …

Title Theft, Stewart E. Sterk

Washington and Lee Law Review Online

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and …

Till The Rivers All Run Dry: Equal Sovereignty And The Western Water Crisis, Simon Ciccarillo

Washington and Lee Law Review Online

Across the United States, a countless number of people rely on groundwater for basic necessities such as eating, drinking, agriculture, and energy-creation. At the same time, overuse combined with increasingly dry conditions throughout the country, tied to the increasingly unpredictable and devastating impacts of climate change, threaten this fundamental building block of society. Nowhere is this problem more pernicious than the American Southwest. The Colorado River Basin has always been the epicenter of water disputes between communities and states. Bad policies, unhelpful federal actions, and sluggish Supreme Court decisions stop the painful but necessary steps to address the increasingly dire …

Outsourcing Self-Regulation, Marsha Griggs

Washington and Lee Law Review

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private interest. By outsourcing the mechanisms that dictate admission to the bar, the legal profession has all but surrendered control of the most crucial component of its gatekeeping function to an unregulated industry that profits at …

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Washington and Lee Law Review

No abstract provided.

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Washington and Lee Law Review

No abstract provided.

Progressive Facade: How Bail Reforms Expose The Limitations Of The Progressive Prosecutor Movement, Sarah Gottlieb

Washington and Lee Law Review

Progressive prosecutors have been acclaimed as the new hope for change in the criminal legal system. Advocates and scholars touting progressive prosecution believe that progressive prosecutors will use their power and discretion to address systemic racism and end mass incarceration. Just as this hope has arisen, however, so have concerns that meaningful change cannot be enacted within the criminal system by the very actors whose job it is to incarcerate. This Article highlights these concerns by looking at the bail reforms enacted by four different progressive prosecutors and analyzes the initial promises made, the actions taken to reform and eliminate …

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Washington and Lee Law Review

No abstract provided.

The Violence Of Free Speech And Press Metaphors, Erin C. Carroll

Washington and Lee Law Review

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Washington and Lee Law Review

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by …

Using State And Local Governments’ Purchasing Power To Combat Wage Theft, Courtlyn G. Roser-Jones

Washington and Lee Law Review

Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Decisionmaking In Patent Cases At The Federal Circuit, Jason Reinecke

Washington and Lee Law Review

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue. …

Mandatory Sentences As Strict Liability, William W. Berry Iii

Washington and Lee Law Review

Strict liability crimes—crimes that do not require a criminal intent—are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.

In a different galaxy far, far away, mandatory sentences—sentences automatically imposed upon a criminal conviction—are unconstitutional in certain contexts for the exact same reason. Mandatory death sentences risk treating those who do not deserve death the same as those that might.

Two completely separate contexts, two parallel rules of law. Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole. Indeed, equity …

Judicial-Ish Efficiency: An Analysis Of Alternative Dispute Resolution Programs In Delaware Superior Court, Jordan Hicks

Washington and Lee Law Review

Since the late twentieth century, federal and state jurisdictions across the United States have explored the use of Alternative Dispute Resolution (“ADR”) programs to resolve legal disputes. ADR programs provide extrajudicial mechanisms through which parties can resolve their disputes without the delay and expense of a traditional judicial proceeding. Courts and practitioners alike have lauded ADR programs. For litigators, ADR programs are a way to deliver outcomes to clients quickly and efficiently. For courts, ADR programs are a way to remove cases from overcrowded dockets.

While ADR is generally considered to be speedier and more cost-efficient than a trial, little …

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …

Letting The Kids Run Wild: Free-Range Parenting And The (De)Regulation Of Child Protective Services, Fenja R. Schick-Malone

Washington and Lee Law Review

Families in the United States suffer from a removal epidemic. The child welfare framework allows unnecessary and harmful intervention into family and parenting matters, traditionally left to the discretion of the parent. Many states allow Child Protective Services (“CPS”) to investigate, intervene, and permanently separate a child from their parents for innocuous activities such as letting the child play outside unattended. This especially affects low-income and minority families.

To prevent CPS from unnecessarily intervening in a family’s decision to let their children engage in independent, unsupervised activities, Utah passed a “free-range” parenting act (“Act”) in 2018. The Act explicitly excludes …

Comment: Protecting Childhood Independence And The Families Who Embrace It, David Pimentel

Washington and Lee Law Review

The legal problem of how to give parents flexibility and how to give children independence cuts to the core of some of our most sacred values: (1) how we raise our kids in this society, (2) the degree to which parents are free to raise their children as they see fit, and (3) the extent to which the state gets to substitute its own judgment for that of parents. Incursions into the family, and disruptions of family security and integrity, should be the exception rather than the rule. Schick-Malone joins a small group of legal scholars who are not content …

Artificial Intelligence And Transformative Use After Warhol, Gary Myers

Washington and Lee Law Review Online

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of …

Code And Prejudice: Regulating Discriminatory Algorithms, Bernadette M. Coyle

Washington and Lee Law Review Online

In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic …

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Washington and Lee Law Review Online

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

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Washington and Lee Journal of Civil Rights and Social Justice

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Washington and Lee Journal of Civil Rights and Social Justice

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Editor's Note

Washington and Lee Journal of Civil Rights and Social Justice

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Exploring The African Regional Human Rights Standards As The Basis For An Enabling Environment For Self-Managed Abortion, Lucia Berro Pizzarossa, Michelle Maziwisa, Ebenezer Durojaye

Washington and Lee Journal of Civil Rights and Social Justice

Self-managed abortion holds great promise to save lives and promote reproductive autonomy, particularly in Africa. Indeed, the African region records very high numbers of unsafe abortions, and the burden of abortion-related mortality is the highest globally. Abortion remains generally criminalized in violation of numerous internationally and regionally recognized human rights standards. The advent of abortion medicines and the increased grassroots energy geared towards curbing the harms of unsafe abortion evince medical abortion holds great promise for revolutionizing people’s access to high-quality reproductive care. This study discusses regional human rights frameworks, policy, case law, and a few representative domestic legislative frameworks …

The Low-Hanging Fruit: Health, Rights, And The Commission, Bright Nkrumah

Washington and Lee Journal of Civil Rights and Social Justice

The year 2022 marked the 35th anniversary of the African Commission on Human and Peoples’ Rights. As it is a custom in many communities, when one reaches this milestone, it is an opportune time to introspect and reflect on the successes and challenges encountered in one’s journey. It is this template that the paper adopts to measure the prospects and setbacks of the African Commission in the advancement of the right to health. The Article argues that while the body remains the poster child of the continent’s human rights architecture, its inability to clearly articulate how states ought to advance …

The Right To Hope: A New Perspective Of The Right To Have Expectations, Opportunities And Plans, Juan Carlos Riofrio

Washington and Lee Journal of Civil Rights and Social Justice

Hope has been considered to be an important and constitutive aspect of the human person, not only by philosophers of all backgrounds, but also by international and national courts of several countries especially in the last decade. As an existential aspect of each person, hope has multiple manifestations in private and public life. Up until now, authors and some cases have been discussing particular manifestations of the right to hope. While in the past these courts were more aware of the hopes raised in judicial litigation and ordinary life, now the inmates’ hope of being released is the major point …

A Miscarriage Of Justice: How Femtech Apps And Fog Data Evade Fourth Amendment Privacy Protections, Rachel Silver

Washington and Lee Journal of Civil Rights and Social Justice

After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog …