Law Commons^™

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 …

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 …

Grappling With Our Own Errors: Lessons From State V. Blake, Alicia Ochsner Utt

Washington and Lee Law Review Online

After fifty years of a failed war on drugs, many states are just now beginning to take steps toward attempting to repair a half-century of harm. By examining the response of Washington’s government at the executive and legislative levels to the Washington Supreme Court’s decision in State v. Blake, this Note identifies some key factors that must be present in the paths forward for all states in their own processes of reform. The stakeholders involved in transforming the criminal legal system must ensure that relief from prior drug-related convictions is automatic, geographically standardized, and complete. Any form of relief …

The Perks Of Being Human, Max Stul Oppenheimer

Washington and Lee Law Review Online

The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. …

Exams In The Time Of Chatgpt, Margaret Ryznar

Washington and Lee Law Review Online

Invaluable guidance has emerged regarding online teaching in recent years, but less so concerning online and take-home final exams. This article offers various methods to administer such exams while maintaining their integrity—after asking artificial intelligence writing tool ChatGPT for its views on the matter. The sophisticated response of the chatbot, which students can use in their written work, only raises the stakes of figuring out how to administer exams fairly.

Silencing Students: How Courts Have Failed To Protect Professional Students’ First Amendment Speech Rights, Shanelle Doher

Washington and Lee Law Review Online

Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially …

Zooming In: Analyzing Annual Meeting Format Changes Amidst A Global Pandemic, Mark T. Wilhelm, Danielle Clifford

Washington and Lee Law Review Online

Beginning in March of 2020, public companies in the United States were forced to take unprecedented measures to observe corporate formalities while following the government-mandated health and safety measures resulting from the COVID-19 pandemic. Those measures made in-person activities and meetings either incredibly challenging or, in certain jurisdictions, illegal. Because “proxy season,” the time when public companies typically hold their annual meetings of stockholders, followed shortly after the mass implementation of COVID-19 lockdowns and quarantines, public companies that had historically held these meetings in-person were left scrambling to find an alternative means to meet. Nearly overnight, the pandemic caused an …

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai

Washington and Lee Law Review Online

The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other …

High Time For Change: The Legalization Of Marijuana And Its Impact On Warrantless Roadside Motor Vehicle Searches, Molly E. O'Connell

Washington and Lee Law Review Online

The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without …

Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.

Washington and Lee Law Review Online

This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those …

Divorcing Guns: How Family Law Could Change Parental Gun Ownership And Save Kids’ Lives, Marcia A. Zug

Washington and Lee Law Review Online

Guns are deadly. They are especially deadly for children yet, currently, parental gun ownership is not a major factor in custody disputes. This needs to change. Making irresponsible gun ownership a routine factor in custody cases could transform parental gun behavior. In other contexts, the potential loss of custody has proven to be an extremely strong deterrent. Moreover, unlike other proposed solutions to gun fatalities, this is a change that can be made right now. Making guns a part of custody disputes does not require the enactment of new legislation or even a judicial determination. By simply raising the issue …

How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump …

An Administrative Solution To The Student Loan Debt Crisis, Justin C. Van Orsdol

Washington and Lee Law Review Online

To say that the student loan debt crisis is out of control is a massive understatement. Although solutions such as Public Service Loan Forgiveness and the recent temporary payment/interest rate freeze have provided some relief for borrowers, more can be done. Of course, as with any large outlay of taxpayer dollars, opposition is sure to be heated. Given the current political climate, the likelihood of any legislative fixes seems unlikely.

But what if there was an administrative solution that could do more to address this crisis without the cost of the legislative process? This essay proposes such a solution. It …

Big Little Lies: How Loopholes In The Small Business Act Allow Large Businesses To Profit, Halley Townsend

Washington and Lee Law Review Online

The Small Business Administration (SBA) was established by Congress to create and administer programs to help small businesses compete in the national economy. But far too often, large, sophisticated firms profit from SBA programs meant to assist the little guy. Currently, Congress legislates specific programs tailored towards one type of small business, and the SBA is responsible for implementing the program. This process has resulted in loopholes in the SBA’s enabling act that permit powerful businesses to qualify for SBA programs. This result is the opposite of what Congress intended.

Part II provides background and the history of the SBA. …

Using Waller To Uphold First And Sixth Amendment Rights Throughout The Covid-19 Pandemic, Maya Chaudhuri

Washington and Lee Law Review Online

In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it …

How To Get Away With Murder: When A White Male Police Officer Kills A Young Black Person, Mitchell F. Crusto

Washington and Lee Law Review Online

Systemic racism in policing allows police officers, in particular white men, to continue to perpetuate the violent killings of Black people. This violence is not accidental. Rather it is intentional and allowed to continue due to a failure by the Supreme Court to hold police officers accountable. This Article explains how the doctrines of qualified immunity, willful intent, and objective reasonableness, as condoned by the Court, allow police officers to “get away with murder.”

How To Compromise On Saving The Most Lives: A Commentary On Hellman And Nicholson, “Rationing And Disability”, David Wasserman

Washington and Lee Law Review Online

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much …

The Haunting Of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape, Jordan S. Miceli

Washington and Lee Law Review Online

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction …

Chief Justice John Roberts: Institutionalist Or Hubris-In-Chief?, Eric J. Segall

Washington and Lee Law Review Online

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. …

The Cost Of Doing Business? Corporate Registration As Valid Consent To General Personal Jurisdiction, Matthew D. Kaminer

Washington and Lee Law Review Online

Every state has a statute that requires out-of-state corporations to register with a designated official before doing business there, but courts disagree on what impact, if any, those statutes can or should have on personal jurisdiction doctrine. A minority of states interpret compliance with their registration statutes as the company’s consent to general personal jurisdiction, meaning it can be sued on any cause of action there, even those unrelated to the company’s conduct in that state. The United States Supreme Court upheld this “consent by registration” theory over 100 years ago, but since then has manifested a sea change in …

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in …

Working While Mothering During The Pandemic And Beyond, Nicole Buonocore Porter

Washington and Lee Law Review Online

Although combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Barrett Lain

Washington and Lee Law Review Online

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

Equity Over Equality: Equal Protection And The Indian Child Welfare Act, Lucy Dempsey

Washington and Lee Law Review Online

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But …