Law Commons^™

Realizing The Right To Food In Maine: Insights From International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment— which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the …

A Restatement Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Debates about democracy are everywhere. Extremists, whether on the streets of Washington or Brasilia, perpetrate violence under the banner of democracy. But what do we mean when we talk about democracy? The debates, in the streets, popular media, or pages of academic journals, leave one wanting for depth and precision. This Article thus aims to provide an analytically useful model of Western democracy by surveying the vast and complex literature and distilling from that literature a series of core elements. From this exercise, this Article identifies the following four elements of democracy: majoritarianism, individual contestation, reason-giving, and deliberation. Although the …

Gender Regrets: Banning Abortion And Gender-Affirming Care, Margot J. Pollans, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the use of “regret” in the campaigns to ban GAC and abortion. It identifies two overlapping threads. First, both campaigns against medical care point to protection of patients from future regret as a legitimate state interest justifying restrictions on providing medical care. Second, both rely on concerns about regret to redefine the legal meaning of “informed consent” and make it easier for potential future plaintiffs to prevail in civil suits against providers of medical care. In doing so, both treat the emotion of regret as a distinct injury that may give rise to a range of legal …

The Transmogrification Of Moratoria In Support Of Rent Regulations: False Steps To Affordable Housing, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The real challenge in property law is demarcating its contours. In this Article, I explore current challenges to our conception of property and the courts' specification or retraction of long-recognized limits on government interference for larger societal benefits. I am largely prompted by recent rulings in state and federal courts on moratoria on evictions during the COVID-19 pandemic and the increasing burdens of rent regulation in a world of persistent housing shortages. In Part II, I discuss property law theories as a backdrop to the discussion of political limits, with a brief summary of how the concepts have evolved over …

The Role Of Data Sharing In Transboundary Waterways: The Case Of The Helmand River Basin, Najibullah Loodin, Gabriel Eckstein, Vijay P. Singh, Rosario Sanchez

Faculty Scholarship

While data and information exchanges theoretically play an effective role in the decision-making process of a shared watercourse, in practice, there are several challenges that prevent riparians from sharing data in an effective and cooperative manner. This chapter seeks to assess why the riparian nations of the Helmand River have failed to adopt an effective data exchange mechanism although both nations signed an internationally recognized bilateral water treaty in 1973. Applying a mixed study approach, the study draws on the theory of planned behavior (TPB) to interpret the main obstacles of data sharing between Afghanistan, the upstream state, and Iran, …

The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose

Faculty Scholarship

This Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed …

North American Energy In The Crossfire, Guillermo J. Garcia Sanchez, James W. Coleman

Faculty Scholarship

North America is the beating heart of global energy markets un-dergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present …

Virtual Energy, Joel B. Eisen, Felix Mormann, Heather E. Payne

Faculty Scholarship

From employment to education, many areas of our daily lives have gone virtual, including the virtual workplace and virtual classes. By comparison, the way we generate, deliver, and consume electricity is an anachronism. And the electric industry’s outdated business model and regulatory framework are failing. For the last century-and-a-half, we have relied on ever larger power plants to generate the electricity we consume, often hundreds of miles away from the point of production. But the outsized carbon footprint of these power plants and the need to transmit their output over long distances threaten the electric grid’s reliability, affordability, and long-term …

A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun

Faculty Scholarship

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Disclosure, Greenwashing, And The Future Of Esg Litigation, Jason J. Czarnezki, Barbara Ballan

Elisabeth Haub School of Law Faculty Publications

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how …

English Company Law: Legal Architecture For A Global Law Market, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

English-architecture company law describes the distinct and diverse group of company or corporate law used in more than 60 jurisdictions worldwide. English-architecture company law provides a robust platform for innovation and development due to its permissive structure, opportunity for choice of law in an entity’s internal governance, and scalability permitting variation for small and large entities. It is the dominant form among International Financial Centers (IFCs), many of which have legal systems with a British connection. This body of law responds to competition and maintains dynamism by engaging its practice community through “learning by doing” and “frictioneering.” An architecture approach …

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Faculty Scholarship

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …

Does Intellectual Property Promote Or Hinder Sustainability? The Case Of Upcycling, Irene Calboli, Siroos Tanner

Faculty Scholarship

This book chapter explores upcycling and its intricate legal and ethical challenges, addressing the challenges upcycling faces from an IP perspective and highlighting the defenses potentially available to justify the practice.

The Innocence Standard: Supreme Court Nominees And Sexual Misconduct, Lisa Avalos

Journal Articles

Should the United States Senate allow judicial nominees who have been credibly accused of sexual misconduct to be seated on the Supreme Court? How should we handle these allegations when they arise during the vetting process? Despite the importance of these questions, lawmakers have failed to address them.

The contentious Clarence Thomas hearings in 1991 featured testimony from Professor Anita Hill and did much to raise Americans' awareness about the prevalence of sexual misconduct in the workplace. Although ProfessorHill subsequently calledfor the Senate to implement aprocess for addressing future sexual misconduct allegations against Supreme Court nominees, her calls have gone …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

Outsourcing Self-Regulation, Marsha Griggs

Washington and Lee Law Review

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private interest. By outsourcing the mechanisms that dictate admission to the bar, the legal profession has all but surrendered control of the most crucial component of its gatekeeping function to an unregulated industry that profits at …

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Washington and Lee Law Review

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Masthead

Washington and Lee Law Review

No abstract provided.

The Violence Of Free Speech And Press Metaphors, Erin C. Carroll

Washington and Lee Law Review

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …

Decisionmaking In Patent Cases At The Federal Circuit, Jason Reinecke

Washington and Lee Law Review

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue. …

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …

Letting The Kids Run Wild: Free-Range Parenting And The (De)Regulation Of Child Protective Services, Fenja R. Schick-Malone

Washington and Lee Law Review

Families in the United States suffer from a removal epidemic. The child welfare framework allows unnecessary and harmful intervention into family and parenting matters, traditionally left to the discretion of the parent. Many states allow Child Protective Services (“CPS”) to investigate, intervene, and permanently separate a child from their parents for innocuous activities such as letting the child play outside unattended. This especially affects low-income and minority families.

To prevent CPS from unnecessarily intervening in a family’s decision to let their children engage in independent, unsupervised activities, Utah passed a “free-range” parenting act (“Act”) in 2018. The Act explicitly excludes …

Comment: Protecting Childhood Independence And The Families Who Embrace It, David Pimentel

Washington and Lee Law Review

The legal problem of how to give parents flexibility and how to give children independence cuts to the core of some of our most sacred values: (1) how we raise our kids in this society, (2) the degree to which parents are free to raise their children as they see fit, and (3) the extent to which the state gets to substitute its own judgment for that of parents. Incursions into the family, and disruptions of family security and integrity, should be the exception rather than the rule. Schick-Malone joins a small group of legal scholars who are not content …

Nova Law Review Full Issue Volume 48, Issue 2

Nova Law Review

No abstract provided.

Intellectual Property Rights In Pornographic Content Creation: Are Your Onlyfans Your Only Fans?, Lauren E. Diaz

Nova Law Review

No abstract provided.

Table Of Contents (V. 48, No. 2)

William & Mary Environmental Law and Policy Review

No abstract provided.

Coasting North: The Problem With The Jones Act For The Offshore Wind Industry And A Remedy From Canada, Sarah Macleod Nagle

William & Mary Environmental Law and Policy Review

This Note is organized into three parts to examine how the Jones Act hampers the U.S. wind energy industry’s construction of offshore wind farms by requiring that only U.S. vessels transport materials from U.S. ports to the wind farms. The Note proposes a license modeled on Canada’s Coasting Trade Act (“CTA”) to allow non-U.S.-flagged vessels to participate in wind turbine construction. Part I will address the development of cabotage law in the United States, the creation of the Jones Act, and its impact on offshore wind. Part II surveys Canada’s cabotage laws, which culminated in the passage of the CTA …