Law Commons^™

Unprotected Heritage: The Inadequate Safeguarding Of Traditional Knowledge And Cultural Expressions Under Intellectual Property Law And The Trips Agreement, Kennedy Wilson

The International Law Review Association Student Forum

This paper examines the challenges of protecting traditional knowledge and cultural expressions within existing intellectual property frameworks along with the Trade-Related Aspects of Intellectual Property Rights Agreement. While intellectual property law is crucial for protecting creations of the mind, its application to the unique characteristics of traditional knowledge and cultural expressions—often communal, intangible, and spiritually significant—reveals significant inadequacies.

An analysis of copyright, patent, and trademark systems reveals shortcomings in adequately safeguarding traditional knowledge and cultural expressions. Copyright’s emphasis on originality and fixation in tangible form excludes much intangible cultural heritage. Patent systems frequently grant protection without acknowledging traditional knowledge as …

Femicides And Female Presidents: A Comparative Study On The Development Of Laws Against Femicide In Mexico And Honduras, Daniela Garcia

The International Law Review Association Student Forum

Gender-based killings, femicides, are the ultimate form of women suppression, and this crime flourishes in countries with deeply rooted misogyny and systematic gender power imbalance. But there is a complicated phenomenon occurring in Mexico and Honduras, in which their constituents voted for female presidents yet both countries have persistent rates of femicides. President of Honduras Xiomara Castro and President of Mexico Claudia Sheinbaum organized their respective voting coalitions with support from feminist advocates who believed that a female presidency would bring gender-based issues and femicides forefront. The institutionalized power of the rightwing party hinders Castro’s plan for the young democracy …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force the …

Intellectual Property, Genetic Resources, And Associated Traditional Knowledge, N.S. Gopalakrishnan, Srividhya Ragavan, Narendran Thiruthy

Faculty Scholarship

The recently concluded WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge mandates disclosure requirements in patent applications, thereby creating an obligation to attribute the use of genetic resources and traditional knowledge. The WIPO member countries thus have an opportunity to modify their national patent laws, so that they can effectively control genetic resources and traditional knowledge. This article examines the choices that the biodiversity-rich countries have when designing their national legal systems to implement the treaty.

Shifting Toward Boilerplate Regulation, Wayne R. Barnes

Faculty Scholarship

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know …

Uniform Commercial Code: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne R. Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2023 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions highlighted in the survey, there has also been legislative progress in several areas. The 2022 Amendments to the Uniform Commercial Code ("U.C.C.") (the "2022 Amendments") have been adopted in twenty-four states plus the District of Colombia and introduced in five states.

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 …

The Initial Response Of Biodiversity Conventions To The Covid-19 Pandemic, Royal C. Gardner, Lauren Beames, Katherine Pratt

William & Mary Environmental Law and Policy Review

The COVID-19 pandemic disrupted the operations of global biodiversity conventions, requiring virtual meetings in place of in-person events. Yet the pandemic also highlighted the importance of biodiversity conservation as a mechanism to reduce the risk of zoonotic diseases, as the October 2020 report issued by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (“IPBES”) emphasized. Now that in-person, international meetings have resumed, this Article examines the extent to which four biodiversity conventions—the Agreement on the Conservation of African-Eurasian Migratory Waterbirds, the Ramsar Convention, the Convention on International Trade in Endangered Species, and the Convention on Biological Diversity—considered the nexus …

Table Of Contents (V. 49, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Expanding Emissions Markets To Reduce Agricultural Nitrogen Run-Off, Samantha Tweet, Amy Hardberger

William & Mary Environmental Law and Policy Review

Synthetic fertilizers have been critical in averting global food shortages; however, synthetic fertilizers and their production have led to numerous environmental harms, including greenhouse gas emissions, water pollution, and soil degradation.

Scientists are working on a new technology that will create a more efficient and less impactful fertilizer process, but the legal mechanisms to encourage widespread adoption and subsequent environmental benefits fall short. In the absence of regulation, market tools can encourage behavior change. If the pollution reduction by exchanging fertilizer is turned into a tradable asset, agricultural users can benefit financially, which lowers potential barriers to participation in a …

Historical Fire And Forest Structure In Western Dry Forests: Alternative Models, Controversies, And Management Plan Revision, Gordon Steinhoff

William & Mary Environmental Law and Policy Review

Management plan revision is currently underway for national forests in the Sierra Nevada Mountains of California, the Pacific Northwest, and other regions of the country under the U.S. Forest Service’s 2012 Planning Rule. With respect to dry ponderosa pine and mixed-conifer forests in the Sierra Nevada and Pacific Northwest, agency scientists and others claim that these forests were historically open and parklike, with primarily large, well-distributed trees, few smaller trees, and sparse underlying vegetation, leaf litter, and woody debris. Large, high-severity fire was rare. Fire exclusion since the early 1900s has led to the “densification” of these forests and unnatural …

The Interpretation Of Environmental Statutory Ambiguity: A Comparative Analysis Between Ecuador And The United States, Fernando Muñoz-Dominguez

William & Mary Environmental Law and Policy Review

This Article examines through a comparative analysis the judicial interpretation of ambiguity in environmental statutes between the jurisdictions of the Republic of Ecuador and the United States of America. By analyzing the fundamental principles and doctrines guiding the interpretation of environmental laws in cases of ambiguity and vagueness in both nations, this Article draws out their inherent merits, drawbacks, and criticisms. A review of jurisprudential precedents provides a nuanced understanding of their practical applications.

In the Ecuadorian context, particular attention is given to the principles of environmental favorability, and in dubio pro natura, all of which are recognized in …

Patent Your Passenger Pigeons: De-Extinction Technologies & Ramifications Of The Product Of Nature Doctrine, Tyler Brooks

William & Mary Environmental Law and Policy Review

Part I of this Note will provide a brief overview of the current methods and scientific breakthroughs that are actively being pursued by private actors (particularly the bioengineering company Colossal Biosciences) to make de-extinct creatures, establishing the crucial point that any technique used to create such an animal will inherently fall short of being able to replicate an extinct species with any one hundred percent accuracy. This section will then briefly speak as to why private actors are looking to invest in de-extinction technologies in the first place, setting out how de-extinction technologies might one day prove incredibly profitable for …

Does History Repeat Itself? Analyzing Montana's 2023 Draft Wolf Management Plan In Light Of Historical Misconceptions Of Wolves, Katelyn Jones

William & Mary Environmental Law and Policy Review

This Note intends to argue that Montana’s Draft Wolf Management Plan, when compared to other states’ plans, particularly Wisconsin’s, is inadequate because it contains many indicators of the antiquated societal bias that has plagued the wolf’s reputation for centuries. Part I begins with a historical overview of wolf hysteria and controversy beginning in Europe and extending to colonial America. Included in Part I is a specific focus on the treatment of wolves in Yellowstone and Montana during the early 1900s. Part I ends with an overview of the reintroduction of wolves into the [Greater Yellowstone Ecosystem] GYE and the success …

Leading The Charge: How Increased Adoption Of Electric Vehicles Renews Calls For Data Privacy Protection In The United States, Patrick Rogers

William & Mary Environmental Law and Policy Review

This Note will examine the privacy risks associated with constructing the nationwide [electric vehicle] EV charging network and propose solutions to mitigate this risk. Part I of this Note will discuss the Biden Administration’s climate policy and legislation and focus on the transportation sector. Part II will explain EV charging and expound on the cybersecurity and privacy concerns of the charging process. Part III will survey the current regulatory landscape at the federal level and highlight California’s approach to data privacy. Finally, Part IV examines recently proposed federal and model state legislation in light of the Fair Information Practice Principles …

The Fallacies Behind The Excise Tax On "Excessive" Charity Compensation, Elaine Waterhouse Wilson

Law Faculty Scholarship

This Article examines the fundamental flaws in Section 4960 of the Internal Revenue Code, which imposes an excise tax on nonprofit executive compensation exceeding $1 million. The provision, enacted as part of the 2017 Tax Cuts and Jobs Act, rests on three problematic fallacies. First, Congress incorrectly assumed that an excise tax on nonprofits would function equivalently to the elimination of a tax deduction for excessive compensation in the for-profit sector under Section 162(m). Second, lawmakers failed to recognize that nonprofits respond differently to tax incentives than for-profit entities due to their distinct governance structures and sensitivity to public opinion …

Country Roads, Take Me To Home Rule, Jesse J. Richardson Jr.

Law Faculty Scholarship

No abstract provided.

Crime Pays: Michigan’S Peculiar Funding Of Public Libraries Through Penal Fines, Cody James

Faculty Journal Articles & Other Writings

No abstract provided.

Git Gud: The Case For Virtual Prison Games In The Fourth Industrial Revolution, Colleen M. O'Toole, Calvin V. Nguyen

Northern Illinois University Law Review

This Article aims to reframe the debate over how best to address the enormous financial and social costs of a criminal justice system which relies on traditional, brick-and-mortar prisons to control criminal behavior. Addressing the question of responsibility, it evaluates the role that judges and prosecutors play in perpetuating a persistent cycle of crime, arrest, and incarceration in a brick-and-mortar prison system, what this Article calls “Shawshank” prisons. Two forces which have shaped the criminal justice system are singled out for special attention: the bail system and the role of race in American politics.

After comparing the cost of the …

Vol. 45, No. 1, Fall 2024: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

Table of Contents and Masthead for Volume 45, Issue 1 of the Northern Illinois Law Review

An Indecent Proposal? A Remedy For Those Damaged By Judicial Malpractice, Michael G. Cortina

Northern Illinois University Law Review

Judicial immunity in the United States primarily exists so that jurists can exercise their duties to the best of their abilities without the fear that they may be subjected to liability should they commit an error in judgment. While such immunity certainly has a proper and noble purpose, the unintended consequence of it is sometimes that those harmed by improper judicial rulings have no civil remedy despite being harmed by a judge’s malpractice. At the end of this paper, the author suggests a possible remedy for those harmed by a judge’s errant decision if that ruling cannot be cured on …

Racing To The Polls: A Comparative Analysis Of Election Administration Systems Between The United States And Canada, Anna Kuhlman

The International Law Review Association Student Forum

Federal elections in the United States are conducted almost entirely at the state-level with no assistance from an electoral management body. The current federal election administration procedures lead to lower voter participation rates compared to other industrialized nations, specifically when considering Canada. Canadian federal elections are administered entirely through a national electoral management body, and Canadian voters are subjected to uniform procedures throughout the country. On the other hand, American citizens living in different states have significantly different voting experiences. By comparing the legal frameworks governing voter registration in both countries, this article will explore how processes such as automatic …

Intoxicated Scootering: Rethinking Electric Scooter Liability In Washington, David Goodwin

Washington Law Review

The widespread acceptance of electric scooters has transformed the landscape of urban transportation. Yet, the emerging phenomenon of intoxicated scootering poses unanswered questions of liability and accountability. New research indicates that a third of traumatic electric scooter injuries are associated with intoxicated scootering. This statistic is particularly alarming given that there are over fifty million scooter trips per year in the United States.

In Washington State, the State Legislature has not enacted a state-wide policy against intoxicated scootering. Instead, the Legislature delegates the authority to regulate the operation of electric scooters to local governments. Due to the ambiguity of whether …

Rethinking Prop 103'S Approach To Insurance Regulation, Lars Powell, R. J Lehmann, Ian Adams

Connecticut Insurance Law Journal

No abstract provided.