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Washington and Lee Law Review - Developments


by Giovanni Strampelli

This Article sheds new light on the link between sustainability disclosure and institutional investors’ stewardship activities aimed at promoting improvements in the ESG performance of investee companies. On the one hand, sustainability disclosure is one of the information elements that may be relevant to institutional investors’ stewardship activities. On the other hand, improving the quality of sustainability reports provided by investee companies is often the ultimate goal of investor engagement initiatives. The role of climate and social disclosure is problematic from both perspectives. First, institutional investors, especially those with broadly diversified portfolios, are unable to use sustainability information directly and rely on ESG ratings and indices for their investment and stewardship strategies due to the very high costs involved. Therefore, in addition to the fact that the regulatory framework still appears to be fragmented and that there are differences between different sets of sustainability disclosures, European legislation shows that it is not enough to provide for climate and social disclosure requirements and that regulation of ESG ratings and indices is essential to make them more transparent and reliable. Second, the decision by non‑activist institutional investors to focus part of their engagement initiatives on sustainability disclosure, for example by requiring a higher degree of transparency or the adoption of a particular reporting framework, appears to be dictated by a desire to avoid more intrusive (and perceived as more aggressive) initiatives aimed directly at encouraging changes in the environmental strategies or policies of the companies concerned.


by Trace M. Maddox

This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.

Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is implicit in the Constitution of the United States. Embracing the principle that the Constitution “cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed”, Ex Parte Grossman, 267 U.S. 87, 108–109 (1925), this essay analyzes that claim in the light of the pre-revolutionary common law and the writings of the Framers and their contemporaries. Drawing from these sources, this essay demonstrates that the Constitution reflects a clear intent on the part of its Framers to cleanly break with the historic tradition of the sacred and inviolable executive. On these bases, this essay concludes that a doctrine of post-presidential immunity from criminal prosecution is not merely—as the Court of Appeals properly held—unsupported by positive law, but, moreover, both contrary to the Framers’ intent and fundamentally incompatible with the Constitution of the United States. It therefore urges the Supreme Court, when deciding the issue for the final time, to consider the thousand-year-old history underlying Mr. Trump’s claims to immunity and to reject those claims as incompatible with the republican government established by this country’s founders.


by Jason Marisam

The Independent State Legislature (ISL) Theory has been one of the hottest topics in election law, with conservative thinkers championing a strong version of the theory. In Moore v. Harper, the Supreme Court had the opportunity to turn this controversial theory into actual doctrine. The Court, though, declined to adopt a maximalist version of the theory and declined to reject it outright. Instead, it offered a vague standard that gives close to zero guidance as to where, between these two poles, the doctrine sits. Several scholars and commentators have responded to the opinion with a mix of relief, because the conservative Court rejected the most extreme version, and wariness, because the Court left room for federal courts to use the theory to undermine voting rights. This commentary challenges and adds to this narrative in a couple of ways. First, it shows that the political and policy implications of the ISL Theory are more complex and uncertain than often assumed. For example, in addition to other complicating scenarios, future cases could see liberals invoking the theory in federal court to rectify conservative state court decisions on fraudulent vote dilution. This commentary offers an explanatory theory that shows the Court may have opted for a vague doctrine in part to preserve flexibility in this uncertain decision-making environment. Second, this commentary highlights one cost of a vague ISL doctrine – an increased risk of outcomes that confuse and disenfranchise voters. Both claims are descriptive. They discuss benefits and risks that have been overlooked or insufficiently analyzed in the literature on the ISL Theory.


by Stewart E. Sterk

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and delays that are difficult to bear, especially for victims without significant resources—often the favorite targets of scammers. Legislators have proposed a variety of reforms to make unauthorized transfers more difficult. Most of the proposed reforms, however, would do little to ease the financial burden on victims. Victims cannot generally rely on title insurance because the standard title insurance policy does not protect the insured against title defects that arise after issuance of the policy. Requiring title insurers to cover post-policy forgery and fraud would ease the burden on victims without significantly increasing costs to title insurers.


by Carol T. Li, Matthew E.K. Hall, and Veronica Root Martinez

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district and courts of appeals levels.

For district courts, we find that the probability of a pro-employee ruling in a district court increased drastically after November 1, 2017. However, while pro-employee rulings increased in district courts during the #MeToo era, pro-employee rulings decreased in circuit courts during this time period. Our findings suggest that the #MeToo movement—an extralegal social movement—impacted legal rulings that occurred in its wake before district courts but courts of appeals were more restrained in their reaction to the movement. Importantly, the law and legal standards in place during the time period of our study did not meaningfully change. In short, the #MeToo movement had a statistically significant impact on rulings from district court judges.


by Gary Myers

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of the Warhol framework. This article assesses the potential fair use analysis for generative AI applications in light of Warhol’s analytical framework. The central question in Warhol is the scope of transformative use versus a use that is derivative and which supplants a market for the original copyrighted work. Whether the use of copyrighted material to “train” AI programs and the products of AI programs are likely to found to be transformative in light of the Warhol framework is an intensely factual inquiry. This article concludes that the use of copyrighted material as inputs for training AI programs is — by itself—likely to be found to be a transformative fair use in most circumstances. The more difficult question is how AI outputs are analyzed. Fair use is necessarily a case-by-case inquiry. In light of cases like Warhol and Google v. Oracle, the analysis will turn on a series of considerations that are identified in this article. It is likely that the fair use question will be litigated frequently in the context of AI outputs, which can involve myriad factual scenarios.


by Max Stul Oppenheimer

The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. That position has recently been upheld by a federal court. This article argues that the Constitution and current statutes do not compel that result, that the denial of protection will hinder innovation, and that if intellectual property rights are to be limited to human innovators that policy decision should be made by Congress, not an administrative agency or a court.


by Margaret Ryznar

Invaluable guidance has emerged regarding online teaching in recent years, but less so concerning online and take-home final exams. This article offers various methods to administer such exams while maintaining their integrity—after asking artificial intelligence writing tool ChatGPT for its views on the matter. The sophisticated response of the chatbot, which students can use in their written work, only raises the stakes of figuring out how to administer exams fairly.


by Mark T. Wilhelm & Danielle Clifford

Beginning in March of 2020, public companies in the United States were forced to take unprecedented measures to observe corporate formalities while following the government-mandated health and safety measures resulting from the COVID-19 pandemic. Those measures made in-person activities and meetings either incredibly challenging or, in certain jurisdictions, illegal. Because “proxy season,” the time when public companies typically hold their annual meetings of stockholders, followed shortly after the mass implementation of COVID-19 lockdowns and quarantines, public companies that had historically held these meetings in-person were left scrambling to find an alternative means to meet. Nearly overnight, the pandemic caused an explosive transition from in-person annual meetings to virtual annual meetings. This article examines that trend, both qualitatively and quantitatively.

More specifically, this article presents the results of primary research that quantifies the prevalence of virtual annual meetings before, during and (depending on one’s view of the current state of affairs) after the height of the COVID-19 pandemic. The results are offered using a series of different metrics to provide a comprehensive picture regarding the sudden transition and theorizes a new normal in one of the most important investor-relations tools available to public companies.


by Imre S. Szalai

The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other workers. Using the Star Wars universe, this Article clarifies and critiques flaws in the Court’s ruling. The decision provides a new hope and blueprint for protecting the rights of workers and consumers around the country.