Law Commons^™

The Fiction Of Equitable Distribution: Military Divorce, Disability, And The “Dire Plight” Of The Former Military Spouse, Zoe Speas

Washington and Lee Law Review

Division of retired pay is one of the most emotionally fraught elements of military divorce. For the servicemember, retired pay compensates decades of service to his country. For the civilian spouse, it remunerates the same decades of domestic labor that enabled such service. Federal restrictions on division of military retirement have spawned confusion and litigation for more than thirty years. Today, former spouses remain extremely vulnerable to this unique and “dire plight.”

In civilian divorce, state courts apply state law to fairly distribute marital assets. Military retirement and disability benefits, however, fall within the scope of the Uniformed Services Former …

The “Dire Plight” Contextualized: Comment On “The Fiction Of Equitable Distribution: Military Divorce, Disability, And The ‘Dire Plight’ Of The Former Military Spouse” By Zoe Speas, Catlin Meade

Washington and Lee Law Review

For forty years, military spouses have sacrificed their economic security and personal well-being to support their servicemember spouse’s military career, only to be thrust into a “dire plight” if their marriage ends in a community property state. The legislative policy that put them in this untenable position has not served federal interests: the military currently faces a recruiting crisis and military spouses’ economic security has not improved since the USFSPA. It is time for Congress and the DoD to reexamine the incentives and benefits provided to servicemembers and their families. Congress and the Court must end the USFSPA’s groundless, inequitable, …

Diligent Influence, Carrie Stanton

Washington and Lee Law Review

Social media influencers wield astonishing marketing power. While influencing may be innocuous in some respects, scholars have argued that influencer marketing—which is uniquely high-touch, individualized, and intimate—raises novel consumer safety concerns. These concerns, in turn, beg crucial questions of risk allocation. In her excellent Note, Under the Influence: Duties, Deception, Disclosures, and Due Diligence of Social Media Influencers, Arianna Kiaei describes the psychological and economic impacts of social media influencing and makes a compelling case for influencer accountability. Kiaei argues that current regulations focus too narrowly on the companies promoting their products through influencers; instead, Kiaei suggests that the robust …

Book Review, Rumyana Van Ark Et Al., Children’S Rights, ‘Foreign Fighters’, Counter-Terrorism: Children Of Nowhere (2024), Mark A. Drumbl

Scholarly Articles

The focus of Children’s Rights, ‘Foreign Fighters’, Counter-Terrorism: Children of Nowhere is on foreign fighters who join terrorist groups, ISIS, and other entities engaged in armed conflict in Syria and Iraq. Counterterrorism measures, and the threats of terrorist attacks, have triggered a degradation and distortion of law. I have noted this following the 9/11 attacks and the concomitant refusal to treat children associated with terrorist groups as protected child soldiers. Whereas child soldiers in distant African conflicts are largely seen in the centers of global power as ‘faultless, passive victims’ of a pathological society, child terrorists taken as disruptive of …

The Small Business Dilemma, Rachel G. Ngo Ntomp

Washington and Lee Law Review

Small businesses face a unique and challenging dilemma in today’s business landscape. On the one hand, they are typically and rightfully considered the more powerful party in their contractual relations with consumers, thus prompting a need to protect consumers against unfair contractual terms. On the other hand, when engaging with larger businesses, small businesses typically find themselves in the position of the weaker, more vulnerable party, possibly in need of greater protection themselves from unfair terms. This Article addresses the inherent dilemma faced by small businesses and argues that the prevailing perception of businesses as sophisticated and experienced, based exclusively …

Takings Doctrinalization, Gerald S. Dickinson

Washington and Lee Law Review

The U.S. Supreme Court’s takings jurisprudence is shaped by an unusually strong reliance on doctrinalist methods of interpretation and reasoning. From Pennsylvania Coal Co. v. Mahon to Penn Central Transportation Co. v. City of New York to Kelo v. City of New London, the Court heavily consults its past takings decisions or refers to the tests, principles, or standards from those decisions as epistemic guides to draw meaning from the Takings Clause. This long history of takings doctrinalization, however, was abruptly disturbed in Nollan v. California Coastal Commission and Dolan v. City of Tigard. There, Justices Scalia and …

The Sound Of Silence In Corporate Director Resignations, Asaf Eckstein, Ziv Granov

Washington and Lee Law Review

This Article seeks to provide an in-depth theoretical, empirical, and policy analysis of an underdeveloped topic in corporate law: director departure. We argue that outspoken director resignations are an integral aspect of effective corporate governance. Disgruntled corporate directors who disagree with the firm’s policies or practices alert shareholders to internal misconduct, encouraging market reactions that pressure the company to make necessary changes. Disclosure of conflict is particularly important in mitigating information asymmetry between shareholders and management, allowing investors to promptly react to relevant events within the firm.

Despite the governance benefits of resignations in protest, we show that outspoken director …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

Scholarly Articles

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

Unveiling The Environmental Impact Of Large Language Models On Indigenous Communities: A Call For Action And Liability, Nina-Simone Edwards

Library Scholarship

Large Language Models (LLMs) have rapidly gained popularity for their language generation and comprehension capabilities, promising increased efficiency in various sectors. However, while celebrated for their transformative potential, LLMs exacerbate current climate issues. This Article highlights the detrimental environmental footprint of LLMs, with a focus on their role in escalating climate change and their disproportionate effects on Indigenous communities. These communities, closely tied to their land, bear the brunt of environmental degradation, further aggravated by LLM-induced emissions.

This Article first dissects the interplay between environmental justice and technological innovation, advocating for a reevaluation of the trust relationship between tribal nations …

Mechanisms For Including Publics In Administrative Governance, Nina-Simone Edwards

Library Scholarship

This project’s fourth concept paper rethinks public participation in administrative processes. Although participation mechanisms are theoretically designed to enable those affected by regulations to influence their development, it is often extremely difficult for members of the public to meaningfully engage with agencies. After discussing institutional failures of current participation mechanisms, this report develops a set of principles to guide the redesign of public participation mechanisms. These include involving publics earlier in the process, building both public and regulatory capacity for meaningful, two-way communication, and reframing expertise as a public good.

The paper then proposes specific mechanisms to optimize communication between …

Designing Policymaking Mechanisms For Regulatory Dynamism, Nina-Simone Edwards

Library Scholarship

The project’s third concept paper focuses on the design of regulatory policymaking mechanisms that translate decisions about public values–such as “avoid deceiving consumers”–into operationalized forms that support iteration and experimentation. It outlines a set of foundational principles for a dynamic, effective regulatory toolkit that empowers regulators to act sooner, experiment, create governance seams, mandate beneficial friction, and extend regulatory authority in ways that mirror the scale and interdependence of digital supply chains.

To support this expanded regulatory toolkit, the paper recommends empowering regulators to mandate data flow restrictions, to develop design requirements for both user-facing and technical interfaces, to require …

New, Derivative: Third-Party Litigation Finance And Derivatives Regulation, Martin Flores

Washington and Lee Law Review Online

Litigation finance is globally abundant and largely unregulated in the United States. The mechanics behind third-party litigation finance are simple: The funder fronts litigation costs in exchange for a promised share of the proceeds if the litigant succeeds. While the normative debate about the value of these contracts in society endures, the litigation finance industry has new players in hedge funds and other opaque investment firms seeking high returns from risky litigation. Many scholars agree on whether to regulate these third-party litigation finance firms. The key debate rages on how to rein in an unbridled industry.

To add to this …

Stitch Incoming: Lindke V. Freed’S Impact On Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

Washington and Lee Law Review Online

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining …

W&L Law Library Newsletter, Vol. 4, Iss. 1 (Dec. 2024), The Law Library At Washington And Lee University School Of Law

W&L Law Library Newsletter

W&L Law Library Newsletter, Volume 4, Issue 1 (December 2024).

Generative Artificial Intelligence And Copyright In The Film And Media Industry, Victor A. Oberting Iv

Washington and Lee Law Review Online

The development of generative artificial intelligence (“GAI” or “generative AI”) introduces compelling benefits and capabilities to filmmakers and artists, but also brings complications regarding copyright of creative works. The American film and media industry in particular illustrates the scope of GAI’s legal, economic, and ethical implications. Though GAI may exhibit characteristics of independent agency or intent, GAI models are best understood as a new set of tools that serve a diverse range of applications in the creative process. The potential benefits of this set of tools can only be realized, then, if the filmmakers who use them are not unreasonably …

A Jacksonian Theory Of Estoppel In Ip Litigation Against The United States, Leonard C. Brahin

Washington and Lee Law Review Online

As an intellectual property infringer, the federal government occupies a unique position as both the entity that approved the infringed patent or trademark and an entity capable of arguing for its invalidity. By arguing for invalidity, the federal government assumes that it should be exempt from the traditional rules of procedural estoppel. Indeed, the government believes that even though it granted intellectual property rights (after careful research and deliberation and following the express review of an officer appointed with the advice and consent of the Senate), it should have a second bite at the apple to invalidate a patent or …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

The Fiduciary Duty Of Combatting Global Climate Change, Sadie Mapstone

Washington and Lee Law Review Online

Ancient Roman Law codified the concept that there are certain resources that are so great and so important to human survival, that intuitively, no person should own them. Further, the government must protect these resources for the people. Today, this concept is known at the public trust doctrine. According to the contemporary doctrine, the seas, oceans, shores, and submerged lands cannot be privately owned, but shall be held in trust by the government for public use. Relying on the public trust doctrine, climate change litigants have brought a tirade of lawsuits—which have largely been unsuccessful—alleging that the government has a …

Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead In United States V. Chatrie, Jordan Wallace-Wolf

Washington and Lee Law Review Online

In United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Artificial Fiduciaries, Zhaoyi Li

Washington and Lee Law Review

The rapid development of technology in the last decade has affected all levels of society. Corporate governance has not been immune to these changes. In the future, Artificial Intelligence (“AI”) fiduciaries may be technologically capable of serving as independent corporate directors. This could be an effective way to address the challenge of the absence of truly independent directors in the traditional governance framework. Artificial fiduciaries could also offer a way to mitigate agency costs and improve overall corporate governance. However, traditional corporate law lacks solutions for coping with the integration of AI into corporate governance.

Currently, there is little scholarship …

Grasping The Third Rail: Restorative Justice And Violent Crime, Olwyn Conway

Washington and Lee Law Review

Restorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Washington and Lee Law Review

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Discrimination, Model Rule 8.4(G), And The Aba’S Quixotic Quest For Uniformity, Alex B. Long

Washington and Lee Law Review

Under American Bar Association (“ABA”) Model Rule 8.4(g), it is professional misconduct for a lawyer to engage in conduct related to the practice of law that the lawyer knows, or reasonably should know, is harassment or discrimination on the basis of race and other protected characteristics. Widespread concerns over the breadth and lack of clarity concerning the rule have triggered substantial criticism, including the refusal of multiple states to adopt this model rule. Instead, several states have responded by introducing alternative versions of Model Rule 8.4(g) or by applying older rules of professional conduct in the case of discriminatory speech …

From Anti-Bds To Anti-Esg: The Next Generation Of Boycotting The “Boycott” Is Only Slightly Less Problematic, Kali Venable

Washington and Lee Law Review

In response to an explosion in Environmental, Social, Governance (“ESG”), state lawmakers are enacting statutes to penalize companies that “boycott” industries they seek to protect. This Note first explains how we got here. To do so, it explains how lawmakers used statutes aimed at suppressing the Boycott, Divestment, and Sanctions (“BDS”) movement against Israel as templates for anti-ESG boycott laws. Further, this Note examines the rise of ESG and the subsequent anti-ESG movement that led to the enactment of state anti-ESG boycott laws pertaining to public contracts.

By analyzing the mixed outcomes of recent First Amendment challenges to anti-BDS laws …

Back To The Future: Revisiting State Constitutions To Protect Against New Technological Intrusions, Matthew Radford

Washington and Lee Law Review

The Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.

Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the …

In Loco Reipublicae And The Parental Duty To Expose Children To Ideas Outside The Home, Catherine Smith

Scholarly Articles

In Loco Reipublicaie boldly centers children’s rights and adeptly fills an existing jurisprudential gap by infusing parental rights with important duties to respect and facilitate children’s exercise of their own citizenship rights. It is a children’s-rights-forward shot across a heavily prioritized parents’ rights bow. It’s about time.

W&L Law Library Annual Report 2023-2024, The Law Library At Washington And Lee University School Of Law

Law Library Annual Reports

No abstract provided.

Exploring The Powell Archives At Washington And Lee University School Of Law, Jennifer Mitchell, Michelle Cosby

Library Scholarship

Washington and Lee University School of Law has the distinct honor of housing the archives of Virginia lawyer and Supreme Court of the United States Justice Lewis F. Powell Jr. he mission of the Powell Archives is to collect, preserve, and facilitate access to the rare and unique materials held by the Wilbur C. Hall Law Library. Virginia attorneys have access to the Powell Archives and Special Collections, a valuable resource for legal research and exploration.