Digital Commons Network^™

Pathogen Genomes As Global Public Goods (And Why They Should Not Be Patented), Jorge L. Contreras

Utah Law Faculty Scholarship

During past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. With respect to COVID-19, global research collaboration occurred rapidly, leading to the identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. …

Law School Record, Vol. 69, No. 2 (Spring 2023), Law School Record Editors

Law School Record

• Message from the Dean
• How Disagreement Remade Corporate Law
• “So Deeply Our Hearts Were Allied”
• Clearing a Path for Entrepreneurs
• Teaching and Mentorship That ‘Students Treasure and Universities Celebrate’
• ‘You Get a Toe in the Water’
• Alumni News: Books Published by Alumni in 2022
• Development News
• Alumni in Memoriam

Echoes Of The Zong Confronting Legal Realism In The Arguments For Reparations From The Atlantic Slave Trade And Modernday Human Trafficking, Glenys Spence

Faculty Scholarship

This Article is based on the premise that modern day human trafficking, like the transatlantic slave trade, violates jus cogens norms, and thus the practice was and still is a violation of US laws under customary international law. The analysis will examine the laws that were applied to chattel slavery in England and her colonies through the lens of some seminal slavery cases to unearth the tyranny of interpretation in human trafficking reparations and liability claims under the current Supreme Court jurisprudence and the Alien Tort Statute (“ATS”). The featured cases will reveal that the same philosophies undergirding the jurisprudence …

Carceral Socialization As Voter Suppression, Danieli Evans

Michigan Journal of Race and Law

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples’ sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

Relentless Atrocities: The Persecution Of Hazaras, Mehdi J. Hakimi

Michigan Journal of International Law

As one of the main ethnic groups in Afghanistan, Hazaras are Farsi-speaking and mostly Shi’a Muslims in a predominantly Sunni Muslim country. They are also distinguishable by their Asiatic appearance. Throughout Afghanistan’s history, Hazaras have suffered considerably under different regimes, enduring recurring massacres, enslavement, and forced displacement. Despite Afghanistan’s accession to the Rome Statute in 2003, the plight of Hazaras has not improved. Indeed, the assaults on Hazaras have only intensified in recent years, impacting virtually every aspect of their lives.

This article argues that the recent and ongoing attacks against Hazaras constitute a crime against humanity. In particular, I …

Removing White Hoods From The Blue Line: A Legislative Solution To White Supremacy In Law Enforcement, Hope Elizabeth Barnes

Washington and Lee Journal of Civil Rights and Social Justice

On May 25, 2020, George Floyd took his final breaths. His death at the hands of multiple Minneapolis police officers was recorded by witnesses and viewed by millions. The public response to Floyd’s death was immediate and powerful. Americans were demanding change on a greater scale than ever before. The problem with policing is not Derek Chauvin, or the Minneapolis Police Department, but rather with the very institution. White supremacy is alive and well in American policing. This Note begins by examining the historic connection between white supremacist groups and law enforcement agencies. This Note then evaluates existing standards of …

Coca-Cola Curses: Hate Speech In A Post-Colonial Context, Brittan Heller

Michigan Technology Law Review

Hate speech is a contextual phenomenon. What offends or inflames in one context may differ from what incites violence in a different time, place, and cultural landscape. Theories of hate speech, especially Susan Benesch’s concept of “dangerous speech” (hateful speech that incites violence), have focused on the factors that cut across these paradigms. However, the existing scholarship is narrowly focused on situations of mass violence or societal unrest in America or Europe.

This paper discusses how online hate speech may operate differently in a postcolonial context. While hate speech impacts all societies, the global South—Africa in particular—has been sorely understudied. …

Achieving The Achievable: Realistic Labor Law Reform, Leonard Bierman, Rafael Gely, William B. Gould Iv

Missouri Law Review

A common reprise among labor activists and scholars has been that for the fortunes of labor to change, the law must change. Prompted perhaps by a seeming surge in labor movement activity over the past few years, including headline-grabbing strikes and recent union victories at several U.S. Starbucks locations, various labor law activists and scholars have called to seize the moment and proposed the enactment of comprehensive labor law reform. We argue in this Article that broad-scale labor law reform is unlikely to be enacted by the current U.S. Congress or even have all its provisions pass muster when potentially …

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison, Tom Butcher

Northwestern Journal of Law & Social Policy

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant …

If We Build It, Will They Legislate? Empirically Testing The Potential Of The Nondelegation Doctrine To Curb Congressional "Abdication", Daniel E. Walters, Elliott Ash

Faculty Scholarship

A widely held view for why the Supreme Court would be right to revive the nondelegation doctrine is that Congress has perverse incentives to abdicate its legislative role and evade accountability through the use of delegations, either expressly delineated or implied through statutory imprecision, and that enforcement of the nondelegation doctrine would correct for those incentives. We call this the Field of Dreams Theory—if we build the nondelegation doctrine, Congress will legislate. Unlike originalist arguments for the revival of the nondelegation doctrine, this theory has widespread appeal and is instrumental to the Court’s project of gaining popular acceptance of a …

Jurisgenerative Tissues: Sociotechnical Imaginaries And The Legal Secretions Of 3d Bioprinting, Roxanne Mykitiuk, Joshua Shaw

Articles & Book Chapters

Three-dimensional ‘bioprinting’ is under development, which may produce living human organs and tissues to be surgically implanted in patients. Like tissue engineering and regenerative medicine generally, the process of bioprinting potentially disrupts experience of the human body by redefining understandings of, and becoming actualised in new practices and regimes in relation to, the body. The authors consider how these novel sociotechnical imaginaries may emerge, having regard to law’s contribution to, as well as its possible transformation by, the process of 3D bioprinting. The authors draw on Gilbert Simondon and corporeal, material feminists to account for these disruptions as ‘ontogenetic,’ in …

Revisiting The Original Congressional Debates About The Second Amendment, Dru Stevenson

Missouri Law Review

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing …

Socio-Economic Considerations Of Living Modified Organisms And Impacts On Trade: Evolution Of Environmental Disputes At The World Trade Organization, Leonardo Munhoz

Dissertations & Theses

The Convention on Biological Diversity (CBD) is the most important international treaty concerning the conservation of biodiversity and the Cartagena Protocol is a specific instrument to regulate biosafety measures for Living Modified Organisms ("LMOs"). In this Protocol, apart from mandatory environmental and health risk assessments, the Parties can also voluntarily adopt socio and economic considerations ("SECs") arising from LMOs, as stated in article 26.

However, the definition of SECs is still under negotiation, therefore it does not currently have a definite concept and meaning. Also, the last Conference of the Parties proposed to expand SECs by adding extra cultural, traditional, …

Property And The Right To Enter, Bethany R. Berger

Washington and Lee Law Review

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, tradition, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. …

The Free Exercise Of Copyright Behind Bars, Viva R. Moffat

Washington and Lee Law Review

People in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should.

Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both …

Litigation To Protect The Marine Environment: Parallels And Synergies With Climate Litigation, Randall S. Abate, Nadine Nadow, Hayley-Bo Dorrian-Bak

William & Mary Environmental Law and Policy Review

The world’s oceans are in crisis. Climate change impacts, biodiversity loss, plastic pollution, fisheries collapse, impacts to marine mammals, and vessel-based pollution are among the many threats the marine environment faces today. Fish biomass is predicted to drop by 3% to 25% by the end of the century due to climate change. Worse still, the amount of plastic in the world’s aquatic ecosystems is on track to hit 23 to 37 million tons per year by 2040.

[...]

This Article reviews recent successes and obstacles in using litigation as a tool to address these concerns across several contexts in the …

It Takes Two: Cites, Illegal Wildlife Trade, And Importing Country Accountability, Erica Lyman

William & Mary Environmental Law and Policy Review

This Article proposes that the CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora] compliance mechanism is fit-for-purpose in its design but its application is biased against source countries and ignores consumer countries both as drivers of illegal wildlife trade and as noncompliant actors. Bringing a justice-based sensibility to the application of the CITES compliance process requires a whole-of-supply-chain analysis and, drawing on the core relational foundations of the treaty, an international perspective, to identity the root causes of non-compliance that allow illegal trade to fester. Ultimately, the compliance mechanism must gel with the machinery and …

Mining And The Protection Of Aboriginal Heritage In South Australia, Alex Wawryk

William & Mary Environmental Law and Policy Review

In 2020, the multinational mining company Rio Tinto destroyed 46,000-year-old Aboriginal rock paintings in Juukan Gorge, Western Australia, to national and international outrage. The incident led to an explosion of concern in Australia regarding the adequacy of domestic laws that aim to protect Aboriginal cultural heritage from the impacts of resource exploitation. This Article explains and critically analyzes the legislative and regulatory framework for the protection of Aboriginal heritage in relation to mining in South Australia. It demonstrates the complexity of the legal and regulatory regime, identifies a number of significant flaws in the key act designed to protect Aboriginal …

The Importance Of Accessible Government Data In Advancing Environmental Justice, Frank D. Lomonte, Daniel Delgado

William & Mary Environmental Law and Policy Review

Part I of this Article sets forth the history and animating principles of the environmental justice movement in the United States during the 1970s, which developed as an adjunct to the larger civil rights movement. Part II then turns to the role of documents and data in exposing where toxins present a risk to public health and where documentation habitually falls short. It discusses how freedom of information laws can unlock access to the documents and data that quantify environmental hazards but also how those laws fail to produce reliable results because of the influence of regulated industries. Part III …

Shades Of Justice: Racial Profiling Then And Now, F. Michael Higginbotham

Articles

It is not easy these days to talk about race in America, especially in a diverse group across racial lines. This is because people tend to feel strongly about these controversial issues, and when they disagree, they end up calling each other bad names, and that upsets their stomachs; then, they cannot enjoy the good food and drink that often accompany such events. So many simply choose not to attend, burying their heads in the sand. This Essay discusses several controversial aspects of the relevance of slavery law to issues of racial inequality today. Racial profiling has been a consistent …

Tribute To Professor Joan Shaughnessy, Alan M. Trammell, Joan M. Shaughnessy, Mary Z. Natkin, Brian C. Murchison, Mark H. Grunewald, Barry Sullivan, Michelle L. Drumbl

Washington and Lee Law Review

A tribute to Professor Joan Shaughnessy, who served on the faculty of the Washington and Lee University School of Law from 1983 to 2022. A recognized scholar and teacher in areas of civil procedure, federal courts, evidence, family law, and poverty law, Shaun was appointed as W&L's inaugural Roger D. Groot Professor of Law in 2012.

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

2023 Research Day Program, Lincoln Memorial University

Research Day

This program contains abstracts and presentation summaries from LMU's 2023 Annual Research Day conference.

Federal Law Enforcement Reform: Depoliticization Into A Constitutional Framework To Restore Public Confidence, Christopher J. Boosey

Senior Honors Theses

This thesis proposes that there is a lack of public confidence in federal law enforcement agencies and that this is because these agencies have become political weapons, investigating individuals rather than crimes, in violation of the U.S. Constitution. Following multiple scandals, from the historical targeting of the Civil Rights movement to present attempts to designate parents critical of school administrators as domestic terrorists, wholesale reform of these agencies is urgent. Therefore, this thesis will address the issue of politicization, political corruption, and the lack of adherence to constitutional principles through the problem, significance, and solution method. This thesis will first …

Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts …

The Global Health Architecture: Governance And International Institutions To Advance Population Health Worldwide, Lawrence O. Gostin, Eric A. Friedman, Alexandra Finch

Georgetown Law Faculty Publications and Other Works

Policy Points Global health institutions and instruments should be reformed to fully incorporate the principles of good health governance: the right to health, equity, inclusive participation, transparency, accountability, and global solidarity. New legal instruments, like International Health Regulations amendments and the pandemic treaty, should be grounded in these principles of sound governance. Equity should be embedded into the prevention of, preparedness for, response to, and recovery from catastrophic health threats, within and across nations and sectors. This includes the extant model of charitable contributions for access to medical resources giving way to a new model that empowers low- and middle-income …

Rural Bashing, Kaceylee Klein, Lisa R. Pruitt

University of Richmond Law Review

Anti-rural sentiment is expressed in the United States in three major threads. The first is a narrative about the political structure of our representative democracy—an assertion that rural people are over-represented thanks to the structural features of the U.S. Senate and the Electoral College. Because rural residents are less than a fifth of the U.S. population, complaints about this situation are often framed as “minority rule.”

The second thread is related to the first: rural people and their communities get more than their fair share from federal government coffers. The argument, often expressed in terms of “subsidies,” is that rural …

With A Wink And A Nod: How Politicians, Regulators, And Corrupt Coal Companies Exploited Appalachia, Patrick C. Mcginley

University of Richmond Law Review

Environmental regulators treated America’s leading coal companies like Wall Street’s mismanaged banks leading to the “Great Recession”—big coal companies that produced millions of tons of coal were simply too big to fail. With a wink and a nod, federal and state regulators ignored a core provision of federal law that was intended to prevent coal companies from continuing their past practices of plundering Appalachia’s mineral wealth while ravaging her environment.

This Article examines how the coal industry successfully evaded compliance with that law. The consequences of this evasion include mass bankruptcies, thousands of acres of mined land laying unclaimed, …

Rural America As A Commons, Ann M. Eisenberg

University of Richmond Law Review

With many ready to dismiss non-urban life as a relic of history, rural America’s place in the future is in question. The rural role in the American past is understandably more apparent. As the story of urbanization goes in the United States and elsewhere, the majority of the population used to live in rural places, including small towns and sparsely populated counties. A substantial proportion of those people worked in agriculture, manufacturing, or extractive industries. But trends associated with modernity—mechanization, automation, globalization, and environmental conservation, for instance—have reduced the perceived need for a rural workforce. Roughly since the industrial revolution …