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Articles 1 - 30 of 4375
Full-Text Articles in Law
All I Really Need To Know About The Ethics Of Third-Party Litigation Funding, I Learned From Watching Hulk Hogan, Alex B. Long
All I Really Need To Know About The Ethics Of Third-Party Litigation Funding, I Learned From Watching Hulk Hogan, Alex B. Long
West Virginia Law Review
The Hogan/Gawker litigation occupies a special place in public discussions concerning third-party litigation funding, the practice of investors who fund litigation with the goal of earning a profit. While nearly a decade has passed since the conclusion of the case, the Hogan/Gawker litigation is still regularly referenced in academic literature and popular media. Since the jury verdict, the practice of third-party litigation funding has grown exponentially. Within just the past year, there have been several state legal ethics opinions concerning the practice, and several state legislatures passed legislation that addresses some of the ethical concerns associated with the practice. On …
Dedication To Professor Vincent P. Cardi, George P. Jacobs Ii
Dedication To Professor Vincent P. Cardi, George P. Jacobs Ii
West Virginia Law Review
No abstract provided.
The Entanglement Of Facts And Values: An Overlooked Problem For Legal Positivism, Stephen A. Simon
The Entanglement Of Facts And Values: An Overlooked Problem For Legal Positivism, Stephen A. Simon
West Virginia Law Review
Scholars have long been fascinated by the relation between law and morality, and in particular by the question of whether identifying the law requires making moral judgments. H.L.A. Hart and other legal positivists insist that we can identify the law without making moral judgments. By contrast, Ronald Dworkin and other opponents of legal positivism hold that determining law’s meaning necessarily involves moral reasoning. The most prominent contemporary case against legal positivism, developed by Dworkin, argues that interpretation—giving meaning to legal language—inherently requires moral judgments. While Dworkin’s arguments are powerful, the discourse has overlooked another basis for rejecting legal positivism: one …
The Judiciary's Arbitrary And Capricious Problem, Jack D. Malich
The Judiciary's Arbitrary And Capricious Problem, Jack D. Malich
West Virginia Law Review
The Supreme Court has not been shy in its efforts to change, and in some cases, overturn long-standing administrative law precedent. Yet in one area, arbitrary and capricious review under Motor Vehicles Manufacturers Ass’n v. State Farm Mutual Insurance Co., the Court has ostensibly not acted to modify any part of the doctrine. Recently, however, the federal judiciary has increasingly used arbitrary and capricious review to invalidate major agency actions over what seem to be somewhat minor procedural flaws. The increased stringency of such review has led to increasing conflict between the executive and judicial branch. Two Supreme Court decisions …
Consent Absent Consensus: A Principles-Based Framework For Institutional Sexual Consent Policies, Tammi Walker
Consent Absent Consensus: A Principles-Based Framework For Institutional Sexual Consent Policies, Tammi Walker
West Virginia Law Review
Title IX requires educational institutions to address sexual misconduct but provides no clear standard for defining consent. In the absence of federal guidance, colleges and universities operate in a regulatory vacuum, producing inconsistent definitions, legal uncertainty, and contested understandings of what consent requires. Without a structured framework, institutions struggle to balance survivor protection, due process, and practical implementation. This Article introduces a principles-based framework that supports clearer, more coherent consent policies. It identifies three interdependent elements of valid sexual consent: (1) Respect for Choices and Autonomy, which requires voluntary agreement free from coercion or pressure; (2) Informed Expectations and Transparency, …
Asarco Delenda Est, John Greabe
Asarco Delenda Est, John Greabe
West Virginia Law Review
ASARCO Inc. v. Kadish is the most important Supreme Court decision addressing the adjudication in state courts of federal claims that Article III’s case-or-controversy requirements would bar lower federal courts from hearing. But there are two serious problems with the reasoning of ASARCO: one involving an error of omission and the other an error of commission. ASARCO’s error of omission is its apparent assumption that a party barred from asserting a federal claim in federal court because of a lack of redressable Article III injury caused by the conduct complained of should face no barriers to obtaining relief on the …
Drawing Lines In The Substance: Questioning The Inconsistent Application Of West Virginia's Recidivist Statute In Cases Involving Controlled Substance Violations, Patrick Hassen
West Virginia Law Review
For decades, West Virginia’s recidivist statute required courts to sentence repeat felony offenders to life in prison even if their offenses were not violent. Over the years, the statute mandated life sentences for triggering offenses as minor as writing a bad check or failing to register a new phone number with the police. Unsurprisingly, the statute has come under its fair share of constitutional attack for violating the state Constitution’s proportionality principle. In 1981 the Supreme Court of Appeals of West Virginia held the state’s proportionality principle requires a strict interpretation of the recidivist statute in favor of the defendant. …
A Damning Doctrine: State-Created Danger, Sierra Dotson
A Damning Doctrine: State-Created Danger, Sierra Dotson
West Virginia Law Review
United States Supreme Court should take to promote uniformity in the correct interpretation of the doctrine and in applying the state-created danger exception.
The Living Architecture Of Law, Joseph R. Goodwin
The Living Architecture Of Law, Joseph R. Goodwin
West Virginia Law Review
No abstract provided.
The Last Human Question: Generative Ai's Existential Threat To Consensus And Law, Joshua Fairfield
The Last Human Question: Generative Ai's Existential Threat To Consensus And Law, Joshua Fairfield
West Virginia Law Review
The true risk of artificial intelligence (“AI”) is not that the toasters will rise up. It is that AI will be competent to perform human tasks and indifferent to human welfare. The risk is that we will be outcompeted by generative automated processes that create output similar to ours (although never the same, as this Article explains), but which need none of the outputs of the economy for food, shelter, or human flourishing. Further, a more precise and existential description of the threat is that generative AI will disrupt and crowd out humanity’s evolutionary superpower, our ability to generate agreement …
Ai And Law Milestones: From Top-Down To Bottom-Up Computational Models Of Legal Reasoning (And Back), Kevin Ashley
Ai And Law Milestones: From Top-Down To Bottom-Up Computational Models Of Legal Reasoning (And Back), Kevin Ashley
West Virginia Law Review
This Article introduces five research and development milestones in the field of Artificial Intelligence and Law and then discusses how large language models (“LLMs”) and generative AI (“GenAI”) are affecting each of them. The milestones include legal expert systems, lessons learned in computationally modeling legal rules and statutes, knowledge-based models of legal argument, machine learning models that classify case texts and predict outcomes, and the design and evaluation of legal applications of LLMs and GenAI. These milestones illustrate how top-down knowledge-based computational models of legal expertise have rapidly given way to bottom-up models based on machine learning. Knowledge-based models explicitly …
A View Under The Hood: Duquesne Kline's Law And Computing Program, Wesley M. Oliver, Katherine L.W. Norton, Martin Mckown, David Horrigan
A View Under The Hood: Duquesne Kline's Law And Computing Program, Wesley M. Oliver, Katherine L.W. Norton, Martin Mckown, David Horrigan
West Virginia Law Review
No abstract provided.
Artificial Intelligence And Machine Learning Improving The Livelihood Of Individuals With Disabilities In Various Capacities, Daveon Lilly
Artificial Intelligence And Machine Learning Improving The Livelihood Of Individuals With Disabilities In Various Capacities, Daveon Lilly
West Virginia Law Review
Artificial Intelligence (“AI”) and Machine Learning (“ML”) are swiftly reshaping accessibility for individuals with disabilities, offering fresh opportunities for inclusion in education, the workplace, and daily life. This Note explores the integration of AI and ML into assistive technologies and discusses how this integration bolsters access and independence for people with various disabilities. It also examines the legal frameworks, including the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 (“Rehabilitation Act”), that govern the implementation of these technologies and address challenges such as algorithmic bias, data privacy, and the digital divide. While AI and ML have made …
Training New Lawyers With And For Generative Ai: A Semester-Long Experiment Scaling Clinical Friction In The Doctrinal Classroom, Frank W. Volk
Training New Lawyers With And For Generative Ai: A Semester-Long Experiment Scaling Clinical Friction In The Doctrinal Classroom, Frank W. Volk
West Virginia Law Review
No abstract provided.
Augmented Advocacy: Ethical Constraints And Regulatory Gaps In Ai-Driven Legal Practice, Molly M. Rowlands
Augmented Advocacy: Ethical Constraints And Regulatory Gaps In Ai-Driven Legal Practice, Molly M. Rowlands
West Virginia Law Review
The rapid advancement of artificial intelligence (“AI”) and particularly generative AI (“Gen AI”) is reshaping the legal profession in unprecedented ways. AI-powered tools enhance efficiency, improve accuracy in legal analysis, and expand access to justice by automating research, contract review, litigation support, and predictive analytics. However, these benefits come with significant ethical, regulatory, and procedural challenges, including competency concerns and AI “hallucinations,” data confidentiality risks, algorithmic bias, and the environmental impact of AI-driven computing. This Note critically examines the evolving role of AI in legal practice and evaluates the inadequacies of existing regulatory frameworks—such as Rule 11 of the Federal …
Sticks And Blackstone: Regulatory Takings And The Definition Of Property, Maryann Herman
Sticks And Blackstone: Regulatory Takings And The Definition Of Property, Maryann Herman
West Virginia Law Review
When private property is subject to regulation, courts sometimes find that it effects a taking requiring just compensation under the U.S. Constitution. This Article explains that what is deemed a regulatory taking can depend on the definition of property the court applies. There are two predominant ways property is defined: either as a bundle of rights or as a person’s dominion over a thing. The bundle of rights, or bundle of sticks, definition conceives of property as a collection of various, discrete rights held by a property owner and others in relation to a thing. These rights can be disaggregated …
Community Lawyering In Coal Country: Empowering Those Who Power America, Gregory Robertson
Community Lawyering In Coal Country: Empowering Those Who Power America, Gregory Robertson
West Virginia Law Review
Despite the intense and prolonged efforts of thousands of activists in the 1960s and 1970s to obtain safer working conditions for coal miners, pneumoconiosis rates, disease that develops as a result of inhalation of particle material, is on the rise. The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo has shaken the ground upon which administrative agencies’ ability to promulgate rules to protect miners rests. This Note profiles a handful of attorneys, archetypes of community lawyering, who advocated for Appalachian coal miners during the height of the Black Lung Movement and continue to do so today. Through conversations with …
Overlooking The Trees For The Forest: A Look Into California's Cap-And-Trade Policy Shortcomings, Zachary Rohrbaugh
Overlooking The Trees For The Forest: A Look Into California's Cap-And-Trade Policy Shortcomings, Zachary Rohrbaugh
West Virginia Law Review
Cap-and-trade programs have grown in political popularity over the past few decades, primarily as a means of addressing climate change and mitigating greenhouse gas emissions. The idea behind these programs is that the government sets a certain cap for emissions that businesses or entities are not allowed to exceed. These businesses or entities receive permits allowing them to pollute up to this capped level. If the business or individual does not use all their allotted permits, they are able to sell their extra to others who might need extra because they exceeded their cap. Although these programs have increased in …
Practical Reason In The Portfolio Economy: Accept: Amend, Or Abandon, The Flsa?, Kevin Frazier
Practical Reason In The Portfolio Economy: Accept: Amend, Or Abandon, The Flsa?, Kevin Frazier
West Virginia Law Review
No abstract provided.
Compelled Contraception, Lars Noah
Compelled Contraception, Lars Noah
West Virginia Law Review
Can the federal government insist that people use contraceptives? It may come as a surprise to learn that the U.S. Food and Drug Administration (FDA) has done just that as a condition for allowing access to some pharmaceutical products that create a serious risk of birth defects. Over the last few decades, the agency has demanded that patients using certain teratogenic agents—now numbering over a dozen drugs prescribed for a variety of conditions, ranging from severe acne and psoriasis to multiple myeloma and pulmonary hypertension—agree to avoid becoming pregnant, sometimes for years after completing their course of treatment. Undoubtedly the …
Are Ai-Assisted Drug Technologies Addressing Or Aggravating The Opioid Crisis In The United States?, Abby O'Hern
Are Ai-Assisted Drug Technologies Addressing Or Aggravating The Opioid Crisis In The United States?, Abby O'Hern
West Virginia Law Review
The opioid crisis is a significant public health emergency, intensified by the rise of synthetic opioids such as fentanyl. Lawmakers have described fentanyl as “terroristic in nature” due to its often-fatal properties. According to the Center for Disease Control (“CDC”), an estimated 107,543 people died from drug overdoses in the United States in 2023. As fentanyl use has surged, it has increasingly shaped public health policy through harm reduction initiatives, expanded addiction treatment resources, and legislative reforms aimed at curbing overdose deaths. Artificial Intelligence (“AI”) now plays a dual role in this evolving crisis. While AI technologies offer valuable tools …
Drafting A Solution: Overcoming The Existential Crisis Of The Selective Service System, John L. Markel
Drafting A Solution: Overcoming The Existential Crisis Of The Selective Service System, John L. Markel
West Virginia Law Review
With the growing fears of a large-scale combat operation against a near-peer adversary, the United States may confront a need to fully mobilize its military for the first time since World War II. A full-scale mobilization would likely necessitate the return of conscription (a.k.a. the draft). The Selective Service System (“SSS”) is currently the federal agency that oversees and conducts the draft in accordance with the provisions of the Military Selective Service Act (“Act”). Yet, this Act has remained untouched for more than two decades, meaning the current conscription system is functionally identical to that used during the Vietnam War, …