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West Virginia Law Review

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Explainable Fairness In Regulatory Algorithmic Auditing, Cathy O'Neil, Holli Sargeant, Jacob Appel Sep 2024

Explainable Fairness In Regulatory Algorithmic Auditing, Cathy O'Neil, Holli Sargeant, Jacob Appel

West Virginia Law Review

No abstract provided.


The Addiction Restriction: Addiction And The Right To Bear Arms, F. Lee Francis Sep 2024

The Addiction Restriction: Addiction And The Right To Bear Arms, F. Lee Francis

West Virginia Law Review

This Article is the culmination of a yearlong research project, and it is the first to address addiction and drug use in the area of Second Amendment law. I argue that addicts may be disarmed, if they are dangerous. My dangerousness test centers on illicit use and imminent danger. That is, do the facts and circumstances prove that an individual is in fact a danger? To put it another way, disarmament is appropriate when there exists demonstrable evidence that a person poses a significant and imminent risk of causing public injury. This Article develops and expands upon some themes and …


Revitalizing Biotechnological Advancement In The United States: Patent Eligibility Reform To Promote Innovation While Preserving Morality, Sydney Virtue Sep 2024

Revitalizing Biotechnological Advancement In The United States: Patent Eligibility Reform To Promote Innovation While Preserving Morality, Sydney Virtue

West Virginia Law Review

Patent protection has long been recognized as a key part of promoting innovation; however, current patent eligibility law in the United States often produces the exact opposite result. While the basic framework for patent eligibility is provided by the Patent Act, the United States Supreme Court has crafted several significant exceptions to patent eligibility—laws of nature, natural phenomena, and abstract ideas. These judicial exceptions have created a crisis in patent law and impeded biotechnological innovation, as they are too vague to be properly confined and carry tests that are too ambiguous for predictable application. To promote and retain world leadership …


Taking Liberties: The Supreme Court's New Hierarchy Of Rights And Its Victims, Richard B. Katskee Sep 2024

Taking Liberties: The Supreme Court's New Hierarchy Of Rights And Its Victims, Richard B. Katskee

West Virginia Law Review

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …


Front Matter Sep 2024

Front Matter

West Virginia Law Review

No abstract provided.


A Local Option: How Medicare Patients In Rural States Could Obtain Coverage For Weight Loss Medications, Emily Blackburn Sep 2024

A Local Option: How Medicare Patients In Rural States Could Obtain Coverage For Weight Loss Medications, Emily Blackburn

West Virginia Law Review

There are currently three options when it comes to managing obesity: (1) making nutritional and activity changes; (2) weight loss medications; and (3) weight loss surgery. The existing limited options for managing obesity are even more restricted for Medicare patients. Making lifestyle changes might not be effective for a variety of reasons, including persistent food cravings and experiences of weight stigma from healthcare providers. To qualify for weight loss surgery, Medicare patients must satisfy several criteria in addition to the already specific weight loss surgery requirements. Additionally, weight loss surgery might not be the most viable option for the Medicare …


Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula Sep 2024

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

West Virginia Law Review

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence (“AI”) while also establishing safeguards across the federal government. The Executive Order marked the U.S. government’s largest move forward related to the regulation of AI. The Order also represents the government’s latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …


Ownership And Development Of Rare Earth Elements And Critical Minerals In Mine Drainage In West Virginia, Robert E. Akers Sep 2024

Ownership And Development Of Rare Earth Elements And Critical Minerals In Mine Drainage In West Virginia, Robert E. Akers

West Virginia Law Review

This Article argues in support of recent legislation which clarifies legal title to potentially valuable substances derived from the treatment of mine drainage in West Virginia’s waters. West Virginia University has been researching the commercial viability of extracting rare earth elements and other critical minerals from coal mine drainage and coal mine waste. If successful, the research may foster a new industry and provide citizens and wildlife with cleaner water flowing in West Virginia’s rivers and streams. The West Virginia Legislature was concerned that ownership disputes and litigation might harm the development of this potential resource and enacted statutory provisions …


Maximizing Productivity Through Digital Panopticism: Combatting Invasive Employee Surveillance Systems In The Workplace, Amber Wooten Sep 2024

Maximizing Productivity Through Digital Panopticism: Combatting Invasive Employee Surveillance Systems In The Workplace, Amber Wooten

West Virginia Law Review

The United States has experienced rapid advancements in surveillance technology and data collection in the past three decades. Conversely, since the COVID-19 pandemic, remote work opportunities have increased, with many remote workers being subjected to surveillance within their homes. Given the lack of significant statutory measures to safeguard remote employees against incessant surveillance, employers can monitor employees, collect data, and enforce unattainable productivity quotas with little repercussions. Despite these harms, the influx of remote jobs presents significant benefits, especially for states like West Virginia, which faces immense population decline and lacks consistent physical job opportunities. Remote work promotes flexibility and …


Quiet Encroachments On School Prayer Jurisprudence, Amanda Harmony Cooley Apr 2024

Quiet Encroachments On School Prayer Jurisprudence, Amanda Harmony Cooley

West Virginia Law Review

No abstract provided.


Meet The New Chief, Same As The Old Chief: A Coherent Solution To The Problem Of Prior Conviction Proof Procedures, Robert Barnhart Apr 2024

Meet The New Chief, Same As The Old Chief: A Coherent Solution To The Problem Of Prior Conviction Proof Procedures, Robert Barnhart

West Virginia Law Review

Conventional wisdom tells attorneys they can avoid having the jury learn about criminal defendants’ prior convictions if the client exercises their right to not testify at trial. Conventional wisdom is wrong. Myriad status crimes, sentence enhancing specifications, and substantive offenses make prior convictions an element of the offense, ensuring the prosecution can introduce them as a matter of course during the prosecution’s case-in-chief. The seminal Supreme Court Case, Old Chief v. United States, provided some relief to criminal defendants by allowing them to stipulate to their status as a felon prohibited from possessing weapons to avoid having the jury learn …


Abuse In West Virginia Schools: What Can We Do To Better Protect Our Special Needs Children?, Camille Treadway Apr 2024

Abuse In West Virginia Schools: What Can We Do To Better Protect Our Special Needs Children?, Camille Treadway

West Virginia Law Review

Children are some of the most vulnerable members of our society that need and deserve the utmost protection. Children with special needs are even more vulnerable, and their protection should be of vital importance. Parents of special needs children send their kids to school every day trusting that they will be safe from harm and will receive a quality education from trained professionals. Sadly, this is not always the case in West Virginia schools. Special needs children, particularly nonverbal children with autism, have frequently been subjected to physical, verbal, and emotional abuse while at school. This abuse is coming from …


Front Matter Apr 2024

Front Matter

West Virginia Law Review

No abstract provided.


The Cartoon Physics Of The Court-Martial, John M. Bickers Apr 2024

The Cartoon Physics Of The Court-Martial, John M. Bickers

West Virginia Law Review

No abstract provided.


Our Dumb First Amendment: The Case Of The Foul-Mouthed Cheerleader, D. A. Jeremy Telman Apr 2024

Our Dumb First Amendment: The Case Of The Foul-Mouthed Cheerleader, D. A. Jeremy Telman

West Virginia Law Review

This Article applies the rights mediation model from Jamal Greene’s book How Rights Went Wrong in the context of public-school students’ rights to free expression. Doing so highlights the flaws in the rights absolutism that currently informs our constitutional jurisprudence. Under rights absolutism, once a court determines that state action burdens First Amendment interests, courts protect the First Amendment interest with such rigor that they ignore all other interests implicated in the litigation. In the case of the foul-mouthed cheerleader, Mahanoy Area School District v. B.L., a rights mediation model might not have changed the outcome, but it would have …


“A Cruel System Indeed”: Extending The Statute Of Limitations For Claims By The Harmed Youth Of West Virginia’S Mismanaged Foster Care System, Caroline Toler Apr 2024

“A Cruel System Indeed”: Extending The Statute Of Limitations For Claims By The Harmed Youth Of West Virginia’S Mismanaged Foster Care System, Caroline Toler

West Virginia Law Review

The current statutes of limitations in West Virginia pose a barrier for harmed youth to bring suits to recover. A child who experiences sexual abuse will have 18 years to bring a civil suit. However, a child who experiences another form of abuse (e.g., psychological or emotional abuse) must bring a suit within two years. In a novel argument, this Note proposes that state legislatures, and the West Virginia State legislature in particular, should extend the statute of limitations for civil suits by former foster youth harmed while in state care. A two-year statute of limitations is an insurmountable barrier …


Table Of Contents Apr 2024

Table Of Contents

West Virginia Law Review

No abstract provided.


Purdue And Mass Tort Claims: Will Non-Debtor Release Survive?, Christopher M. Alston, Alena Ivanov Apr 2024

Purdue And Mass Tort Claims: Will Non-Debtor Release Survive?, Christopher M. Alston, Alena Ivanov

West Virginia Law Review

No abstract provided.


Immunity Through Bankruptcy For The Sackler Family, Daniel G. Aaron, Michael S. Sinha Apr 2024

Immunity Through Bankruptcy For The Sackler Family, Daniel G. Aaron, Michael S. Sinha

West Virginia Law Review

In August 2023, the Supreme Court of the United States temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute, in the form of immunity from liability, to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power. …


Symposium Remarks: Public Litigation Values Versus The Endless Quest For Global Peace, Elizabeth Chamblee Burch Apr 2024

Symposium Remarks: Public Litigation Values Versus The Endless Quest For Global Peace, Elizabeth Chamblee Burch

West Virginia Law Review

No abstract provided.


Front Matter Apr 2024

Front Matter

West Virginia Law Review

No abstract provided.


Nonviolent Drug Offenders Need Treatment--Not Prison: The Solution To Prison Overcrowding In West Virginia, Kendra Amick Apr 2024

Nonviolent Drug Offenders Need Treatment--Not Prison: The Solution To Prison Overcrowding In West Virginia, Kendra Amick

West Virginia Law Review

A tenfold increase in prison populations has occurred due to the policies and laws enacted by the War on Drugs campaign in the United States. This increase is the direct result of a rise in the incarceration of nonviolent drug offenders. Rearrest rates for nonviolent drug-related offenders sentenced to prison are 50%. For those offenders permitted to participate in a drug court program, this rate decreases by over half. In West Virginia, the battle against the opioid epidemic has caused it to become one of the fastest-growing prison populations in the nation. With a fast-emerging crisis on the rise, West …


Masthead Volume 126, Issue 2 Apr 2024

Masthead Volume 126, Issue 2

West Virginia Law Review

No abstract provided.


Table Of Contents Apr 2024

Table Of Contents

West Virginia Law Review

No abstract provided.


The Right To Sit In West Virginia, Leif Olson Apr 2024

The Right To Sit In West Virginia, Leif Olson

West Virginia Law Review

In 1901, West Virginia guaranteed that women working outside the home would have a place to sit down at their workplace. In 2023, despite that law, no worker in West Virginia is functionally required to be given a chair. This Note explores the use of seating laws to prevent the modern and historic workplace issue of prolonged standing, or when an employee is required to stand in one place for too long at one time. Prolonged standing in the workplace is an ergonomics problem, a medical concern, and a labor issue. The pain, discomfort, and long-term chronic disease caused by …


Keeping All American Workers Paid And Employed? How Small Businesses With Independent Contractors Feel Slighted By The Paycheck Protection Program And What Can Be Done, Mary Claire Davis Apr 2024

Keeping All American Workers Paid And Employed? How Small Businesses With Independent Contractors Feel Slighted By The Paycheck Protection Program And What Can Be Done, Mary Claire Davis

West Virginia Law Review

Imagine it is late March 2020, and you own and manage a small transportation company that employs independent contractor drivers. In addition to managing the upheaval that has occurred to all small businesses across the country with the onset of the COVID-19 pandemic, you worry that your workers will not be able to keep food on the table. You hear about a new government program—the Paycheck Protection Program (“PPP”) created by legislation known as the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)—that is meant to “keep[] American workers paid and employed.” You understand that the United States Small …


Expanding Drug Courts And Alternative Justice Courts In West Virginia: Implementing Innovative And Restorative Justice Practices, Emily Ogden Apr 2024

Expanding Drug Courts And Alternative Justice Courts In West Virginia: Implementing Innovative And Restorative Justice Practices, Emily Ogden

West Virginia Law Review

The United States has the highest incarceration rate of any country in the world. Alarmingly, West Virginia’s incarceration rate is even higher. West Virginia’s staggering incarceration rate can largely be attributed to the increased criminalization and prosecution of individuals experiencing addiction. This Note considers what actions can be taken to limit incarceration and recidivism in West Virginia. The solutions proposed by this Note also aim to limit the collateral consequences of incarceration in West Virginia because many of West Virginia’s current issues are only exacerbated by incarceration. This Note reviews alternative justice methods and notable alternative justice courts across the …


Masthead Volume 126, Issue 3 Apr 2024

Masthead Volume 126, Issue 3

West Virginia Law Review

No abstract provided.


Misleading Markets: Consumer Protection In The Age Of Climate Washing, Ciara Peacock Feb 2024

Misleading Markets: Consumer Protection In The Age Of Climate Washing, Ciara Peacock

West Virginia Law Review

No abstract provided.


The Socioeconomic Gap Of Infertility: Medicaid Coverage Of Infertility Treatments In West Virginia, Samantha Wilson Feb 2024

The Socioeconomic Gap Of Infertility: Medicaid Coverage Of Infertility Treatments In West Virginia, Samantha Wilson

West Virginia Law Review

Infertility treatments have become more accessible and widely used in the last 20 years. As more couples look to these treatments in their struggle to start a family, health insurers are lagging behind in coverage for these options. For the majority of women in the country, paying for infertility treatment out-ofpocket is unrealistic. Not all states have approached this issue but those who have vary in their approach. Some are utilizing either mandate-to-cover for private insurers or Medicaid coverage to attempt to make treatments and diagnosis more accessible. Without policy solutions, the inequality of access between socioeconomic statuses will remain. …