Law Commons^™

Nudging Humans, Brett Frischmann

Faculty Publications

Behavioral data can and should inform the design of private and public choice architectures. Choice architects should steer people toward outcomes that make them better off (according to their own interests, not the choice architects’) but leave it to the people being nudged to choose for themselves. Libertarian paternalism can and should provide ethical constraints on choice architects. These are the foundational principles of nudging, the ascendant social engineering agenda pioneered by Nobel Prize winning economist Richard Thaler and Harvard law professor Cass Sunstein.

The foundation bears tremendous weight. Nudging permeates private and public institutions worldwide. It creeps into the …

Thirsty Places, Priya Baskaran

Utah Law Review

The United States, among the wealthiest and most prosperous nations in the world, regularly fails to provide clean, potable water to many of its citizens. Recent water crises occur within communities categorized as Geographically Disadvantaged Spaces (“GDS”), which often encompass urban and rural areas. What is more, people of color and economically vulnerable populations are often located within GDS, disproportionately burdening these groups with the economic and public health consequences of failing water infrastructure. This Article provides a novel, comparative analysis of communities lacking potable water in Flint, Michigan, and southern West Virginia. This analysis highlights entrenched structural problems present …

National Security Policymaking In The Shadow Of International Law, Laura T. Dickinson

Utah Law Review

Scholars have long debated whether and how international law impacts governmental behavior, even in the absence of coercive sanction. But this literature does not sufficiently address the possible impact of international law in the area of national security policymaking. Yet, policies that the executive branch purports to adopt as a wholly discretionary matter may still be heavily influenced by international legal norms, regardless of whether or not those norms are formally recognized as legally binding. And those policies can be surprisingly resilient, even in subsequent administrations. Moreover, because they are only seen as discretionary policies, they may be more easily …

Critical Interviewing, Laila L. Hlass, Lindsay M. Harris

Utah Law Review

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into …

Red Flag Laws And Procedural Due Process: Analyzing Proposed Utah Legislation, John R. Richardson

Utah Law Review

In this Note, I analyze the validity of criticism against red flag laws based on procedural due process. I proceed as follows: In Part I, I discuss the background of red flag laws, the different versions passed among states, and the few constitutional challenges brought thus far. In Part II, I analyze the statutes’ validity under federal due process standards. I then specifically examine proposed Utah bills that failed to pass in previous legislative sessions. While providing recommendations, I argue that the legislation would likely pass constitutional muster. In Part III, I conclude that red flag laws are generally constitutional …

Estate Planning For Cannabis Business Owners: An Introduction, Bridget J. Crawford, Jonathan G. Blattmachr

Elisabeth Haub School of Law Faculty Publications

As more states legalize cannabis sales, estate planners may increasingly be called upon to advise clients with interests in cannabis-related businesses. This essay seeks to assist estate planners in two ways. First, it aims to raise general awareness of cannabis business owners' unique concerns. Second, the essay provides an overview of some of the fundamental issues about which cannabis business owners are likely to seek estate planning advice: business formation matters, wealth transfers, the ability of trusts to own cannabis-related businesses, and gift, estate, and income tax considerations.

In most states that permit legal cannabis sales, there is limited (or …

Sustainable Business Law? The Key Role Of Corporate Governance And Finance, Jason J. Czarnezki, Colin Meyers

Elisabeth Haub School of Law Faculty Publications

Lawyers, law schools, and corporate entities have shown an increased interest in sustainable business strategies. This is reflected by the increase in sustainability practice groups, law school courses, and textbooks focusing on the relationship between sustainability and business law; lawyers moving into executive-level sustainability positions in the private sector; and the proliferation of corporate sustainability policies, as well as increased interest in mitigating climate risk and engaging in sustainable finance. But what exactly is sustainable business law, and what role do lawyers play in advancing sustainability in the corporate world? This Article argues that “sustainable business law” has emerged as …

Intellectual Property Exhaustion And Parallel Imports Of Pharmaceuticals: A Comparative And Critical Review, Irene Calboli

Faculty Scholarship

This Chapter addresses the topic of intellectual property (IP) exhaustion in the context of the parallel trade of pharmaceuticals. These imports, which are controversial in general, are more complex with respect to pharmaceuticals, which require additional marketing and import authorizations. Nevertheless, individual countries remain free to accept these imports under the flexibility of Article 6 of the Agreement on Trade Related Aspects to Intellectual Property Rights (TRIPS Agreement). This Chapter reviews several national approaches—in developed, developing, and least developed countries (LDCs)—from the perspective of the exhaustion of patent rights as well as other IP rights. Through this review, it highlights …

Getting Comfortable With Discomfort, Diversity & Repair, Luz E. Herrera

Faculty Scholarship

The topic of this year's conference, diversity, pluralism, and repair, gives us so much to talk about, that for me, it was hard to know where we were to begin. Dean Angela Onwuachi-Willig focused on judicial appointments and the importance of a diverse bench for the legal profession, and in our society. She also discussed becoming comfortable with discomfort and I wanted to pick up on that thread. When I think about discomfort, I think about my own journey in the legal profession.

Psychological Data Breach Harms, Ido Kilovaty

North Carolina Journal of Law & Technology

No abstract provided.

Agchain: Deploying A Public Utility Blockchain To Unveil The Missing Links Between Food Origin And Destination, Jacob D. Farrell

North Carolina Journal of Law & Technology

No abstract provided.

Ephemeral Messaging Applications And The Presidency: How To Keep The President From Blocking The Sunshine, Caroline Madison Pope

North Carolina Journal of Law & Technology

No abstract provided.

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William Corbett

Journal Articles

The article focuses on employment at will and employment discrimination law-and explores how each encroaches upon and weakens the other. It mentions federal-state cooperative approach to "firing" employment at will and discharging termination claims from the federal employment discrimination laws. It also mentions cooperative federalism approach to improve employment law and basics of a wrongful discharge statute.

Corporate Governance Gaming: The Collective Power Of Retail Investors, Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

The GameStop saga and meme stock frenzy have shown the pathway to the most disruptive revolution in corporate governance of the millennium. New generations of retail investors use technologies, online forums, and gaming dynamics to coordinate their actions and obtain unprecedented results. Signals indicate that these investors, whom we can dub wireless investors, are currently expanding their actions to corporate governance. Wireless investors' generational characteristics suggest that they will use corporate governance to pursue social and environmental causes. In fact, wireless investors can set in motion asocial movement able to bring business corporations to serve their original partly-private-partly-public purpose. This …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Rationing And Disability: The Civil Rights And Wrongs Of State Triage Protocols, Deborah Hellman, Kate M. Nicholson

Washington and Lee Law Review

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused …

The Public Health Turn In Reproductive Rights, Rachel Rebouché

Washington and Lee Law Review

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects. …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Washington and Lee Law Review

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

Blood In The Water: Why The First Step Act Of 2018 Fails Those Sentenced Under The Maritime Drug Law Enforcement Act, Lauren R. Robertson

Washington and Lee Law Review

For some, the open ocean is prison. The Maritime Drug Law Enforcement Act (MDLEA) prohibits individuals from knowingly or intentionally distributing a controlled substance or possessing it with the intent to distribute. Empowered by the MDLEA, the United States Coast Guard arrests and detains foreign nationals hundreds of miles outside of U.S. territorial waters. After months shackled to Coast Guard ships, these individuals face the harsh reality of American mandatory minimum drug sentencing, judged by the kilograms of drugs on their vessels. But the MDLEA conflates kilograms with culpability. More often than not, those sentenced are fishermen-turned-smugglers due to financial …

Alternative Solutions For Government Intervention In Climate Crisis Markets: Price Gouging And The Pandemic Egg Market Case Study, S. Byron Frazelle

William & Mary Environmental Law and Policy Review

The cost of a thing is the amount of what I will call life which is required to be exchanged for it, immediately or in the long run.

The incredible, edible egg.

Fires in California, hurricanes along the Gulf, a worldwide pandemic—it is evident that the year 2020 was defined by great crises, most of which were direct results of or exacerbated by climate change. The effects of these crises on broader American society, in particular that of the COVID-19 pandemic, are just beginning to be realized. Nearly every aspect of American life has been impacted by the pandemic and …

Southern Harm: Analyzing The Criminal Enforcement Of Environmental Law In The Southern United States, 1983-2019, Joshua Ozymy, Melissa L. Jarrell

William & Mary Environmental Law and Policy Review

When violations of environmental laws involve significant harm or culpable conduct, the application of criminal enforcement tools is required. Yet, our understanding of how environmental laws have been criminally enforced historically in the Southern United States remains poor. Our goal is to analyze historical charging and sentencing patterns and show the broader themes that emerge in environmental crime prosecutions over time in the region. Through content analysis of all 2,588 criminal prosecutions resulting from U.S. EPA criminal investigations, 1983–2019, we select all 799 prosecutions occurring in the Southern United States. Results show that 44% of prosecutions focus on water pollution, …

Enhancing The Weather: Governance Of Weather Modification Activities Of The United States, Manon Simon

William & Mary Environmental Law and Policy Review

In the context of climate change, weather modification by cloud seeding, and in particular, precipitation enhancement techniques, has gained a renewed attention from governments. In the United States, several states run weather modification programs to secure freshwater resources and increase both crop and hydroelectricity production. Weather modification techniques were developed post–World War II, and so were the legal arrangements that govern them. Since then, weather modification law has undergone little to no reform. California and Texas are two active users of cloud-seeding technologies but employ very different governance frameworks. This Article assesses the effectiveness of weather modification governance in these …

"Very Complex Questions": Zoos, Animals, And The Law, Dana Mirsky

William & Mary Environmental Law and Policy Review

In Sulawesi, Indonesia—forty-five thousand years ago, an artist painted what is now the world’s oldest known cave painting—a life-size image of a wild pig. Forty thousand years later, the elite of Hierakonpolis, Egypt, housed elephants, hippos, and baboons in the world’s oldest known zoo. Today, individuals keep exotic fish, reptiles, and birds as pets while zoos and aquariums display some of the largest and rarest animals on the planet. The human fascination with wild animals is clearly not a new phenomenon, but how and why we keep wild animals have evolved over time. Zoos in particular have changed dramatically just …

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

Pushing The First Domino: Freeing The Whales In Canada, Luc Paul Bourgeois

LLM Theses

In 2019, the Canadian Parliament adopted Bill S-203, titled the Ending the Captivity of Whales and Dolphins Act [Whales Act], to phase-out the captivity of cetaceans – that is, whales, dolphins, and porpoises – mainly for entertainment purposes. This new law reflected scientific knowledge and signaled a shift in public attitudes relating to cetacean captivity. Undeniably, this piece of legislation raises many legal and normative questions. Drawing on the capabilities approach, espoused by Martha C. Nussbaum, this paper will explore the nature and impact of the Whales Act in the Canadian political and legal landscape, as well as the newly …

The Federal Option: Delaware As A De Facto Agency, Omari Scott Simmons

Washington Law Review

Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the “Federal Option” for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware’s jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …