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Washington and Lee Law Review - Print Edition

Article

by Casey E. Faucon

College sports generate approximately $8 billion each year for the National C[artel] Athletic Association and its member institutions. Most of this revenue flows from lucrative television broadcasting deals, which often incorporate the right to commercialize and sell the names, images, and likenesses of college athletes. Under its current revenue scheme, student-athletes—85 percent of whom live below the poverty line—receive a share of zero. For over a century, we’ve justified this exploitative distribution scheme under a cloak of student-athlete “amateurism.” Antitrust challenges to the NCAA’s amateurism rules clash with the assumption that “amateurism” is a revered tradition and an important tenet upholding the value and integrity of U.S. college sports. But is this true? Is amateurism in U.S. college sports such hallowed ground? And, if so, what values should animate the distinctions society values between collegiate and professional sports? Does it mean college athletes shouldn’t get paid?

This Article provides a descriptive and theoretical examination of the consumer justifications for amateurism in college sports under an antitrust framework. In general response to these inquiries, this Article finds that some consumer value exists in maintaining amateurism in college sports. However, amateurism’s uniqueness to American culture, and the values that should shape amateurism’s norms, stem from regional and institutional loyalty, athletic tradition, and the preparation and life skills gained from dual academic-athletic participation. Although competitive balance and fairness could be an animating factor, insufficient support for this position exists. This Article then theorizes that allowing name, image, and likeness (NIL) commercialization or “pay for play” would not impact those main animating factors and that student-athletes should be allowed as much pay for play as the consumer market would tolerate.

The Article then proposes pay for play and NIL commercialization schemes that more robustly incorporate not only consumer preference, but also moral, ethical, and equitable considerations, following the Supreme Court’s 2021 decision in NCAA v. Alston.

Article

by Peter Ormerod

In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.

The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others do not. The second problem is more fundamental: the Court has never provided a justification for using counter-majoritarian constitutional standing to deprive plaintiffs of a remedy against companies engaged in abusive informational practices. These incoherencies have sparked much confusion in the lower courts and have invited curious arguments that the Constitution prohibits courts from adjudicating all but the narrowest sliver of privacy disputes.

To address the line-drawing and counter-majoritarian problems, this Article builds on Helen Nissenbaum’s contextual integrity framework. Contextual integrity observes that privacy is context specific and that privacy violations are the byproduct of practices that violate entrenched informational norms.

Constructing a legal framework based on contextual integrity solves both problems: contextual integrity provides courts with a principled way to distinguish between informational practices that are injurious and those that are not, and contextual integrity supplies courts with a persuasive justification for dismissing cases divorced from shared conceptions about abusive informational practices. The legal framework proves useful in understanding the statutes and circumstances that create justiciable privacy injuries.

It’s too late to undo all the havoc wreaked by the Court’s constitutional standing cases. This Article proposes a mechanism for cabining the doctrine’s most extreme implications and provides courts with a consistent and coherent way to protect privacy.

Article

by Anita K. Krug

In times of crisis, including during the 2020–2021 global pandemic, the U.S. Securities and Exchange Commission (SEC) has engaged in a type of securities regulation that few scholars have acknowledged, let alone evaluated. Specifically, during recent market crises, the SEC adopted rules that are temporary, designed to help the securities markets and their participants—both public companies and public investment funds, such as mutual funds and ETFs—weather the crisis at hand but go no further. Once that goal has been accomplished, these rules usually expire, replaced by the permanent rules that they temporarily supplanted. Although the temporary-rulemaking endeavor is laudable—and arguably necessary for the sake of maintaining well-functioning markets in times of crisis—neither the SEC nor its observers have sufficiently acknowledged the meaningful risks that temporary rules might present to investors. At the same time, they have not appreciated the opportunities that temporary rules may create for furthering the cause of more effective regulation. This Article seeks to illuminate the potential and the pitfalls of temporary rules, thereby contributing to a better understanding of what is at stake when the SEC adopts them and what considerations should inform the agency’s rulemaking during future crises.

Article

by Greg Reilly

The recent expansion of the Patent Office’s power to invalidate issued patents raises a coordination problem when there is concurrent litigation, particularly where the federal courts have already upheld the patent’s validity. The Federal Circuit has concluded that Patent Office cancellation extinguishes litigation pending at any stage and requires vacating prior decisions in the case. This rule is widely criticized on doctrinal, policy, and separation of powers grounds. Yet the Federal Circuit has reached (almost) the right outcome, except for the wrong reasons. Both the Federal Circuit and its critics overlook that the Federal Circuit’s rule reflects a straightforward application of the justiciability limits on the power of the federal courts. Patent cancellation eliminates the exclusive rights that form the basis for the plaintiff’s suit, mooting the infringement case no matter how belated in the litigation. Courts typically vacate prior judgments and decisions when a pending case becomes moot, exactly as the Federal Circuit requires. Properly rooting the effects of Patent Office cancellation in mootness addresses critics’ doctrinal and policy concerns. It also demonstrates that critics’ separation of powers concerns are exactly backwards. The Federal Circuit’s rule is not a threat to the constitutional structure or the role of federal courts but rather a necessary result of Article III’s limits on federal judicial power. Courts and Congress each have potential ways to mitigate policy concerns from allowing Patent Office cancellation to trump litigation, while respecting mootness, but these ways introduce their own problems. Courts may have some discretion to decline to vacate prior judgments but doing so would have limited impact and could be an unwarranted departure from generally applicable procedural rules. Congress could limit the retroactive effect of patent cancellation, but this would be historically novel and raise its own policy concerns.

Article

by Gregory S. Parks and Elizabeth Grindell

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

Note

by A. Sasha Hoyt

Historically, 35 U.S.C. § 101, the statute governing patent eligible subject matter, has been construed broadly—with its legislative history indicating that it should cover “anything under the sun that is made by man.” The Supreme Court crafted three exceptions to § 101: (1) abstract ideas, (2) laws of nature, and (3) natural phenomena. In recent years, the Supreme Court’s eligibility jurisprudence has further narrowed § 101 to effectively exclude meritorious medical diagnostic methods. Indeed, since the Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Federal Circuit has held every single diagnostic method claim brought before it patent ineligible.

This Note begins by discussing the merits of medical diagnostic tests and their relevance to modern precision medicine. It then dissects the Supreme Court’s decisions in Bilski v. Kappos and Mayo, highlighting the uncertainty regarding patent eligibility of medical diagnostic methods following these cases and the Federal Circuit’s application of the Court’s Alice/Mayo test. This uncertainty has rippled through the medical diagnostic and venture capital industries, sparking concerns about under-investment in diagnostic R&D.

The heart of this Note is an empirical study of venture capital investment in disease diagnostic technologies before and after Bilski and Mayo. Using a difference-in-difference methodology to analyze venture capital investment data from the PriceWater Clearinghouse Moneytree Tool, this Note examines whether current § 101 jurisprudence has caused these selective investors to decrease investment in companies developing medical diagnostics technologies that—in light of Mayo and its progeny—appear to be patent ineligible. Ultimately, the study indicates that in the four years following Mayo, investment in disease diagnostic technologies was nearly $9.3 billion dollars lower than it would have been absent Mayo.

This Note presents five key implications related to its central finding. First, the data supports the recent calls to Congress for reform of § 101. Second, it complements other key research regarding investment behavior following Mayo and Alice. Third, the data raises the question whether remaining innovation in the diagnostics space will be enough to support the precision medicine movement. Fourth, underinvestment in diagnostics and the discovery of disease biomarkers may lead to underinvestment in treatments. Lastly, this Note’s findings suggest that at least some venture capital firms employ greater caution when determining whether to invest in a company developing (or aiming to develop) diagnostics, which may spur hesitancy to form such companies in the first place.

Article

by Christopher B. Seaman

As an empirical legal scholar, I am pleased to report that Sasha Hoyt has done what very few law students—and even many law professors—could achieve. She successfully conducted a novel empirical study to assess the real-world impact of a U.S. Supreme Court decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc., on venture capital (VC) investment in startups and other companies that develop medical diagnostic technology.

As Ms. Hoyt notes, patent protection is particularly important for startup companies, as it can help protect their innovations from unauthorized use, attract funding and other investments, and foster collaboration with third parties. In the Mayo case, the Supreme Court made it extremely difficult for medical diagnostic companies to obtain patent protection for their technology, no matter how novel or useful it is. Using a sophisticated difference-in-difference methodology to evaluate the impact of the Supreme Court’s decision in Mayo on VC funding for medical diagnostic startups, Ms. Hoyt finds that medical diagnostics firms received almost $10 billion less in VC funding that they would have compared to other industries that were unaffected by the decision. And importantly, this result is statistically significant using an ordinary least squares (OLS) regression analysis. In short, Ms. Hoyt’s Note is a valuable contribution to the literature on patent eligibility and its impact on innovation, and policymakers should take note of her study.

Article

by David O. Taylor

I write to provide a few remarks concerning Sasha Hoyt’s illuminating work published in the pages of this journal. In it, Hoyt addresses the impact of the Supreme Court’s patent eligibility decisions on private investment in the development of medical diagnostic technologies. As an initial matter, I want to congratulate Hoyt for tackling an important topic. As Hoyt discusses, medical diagnostic technologies enable the diagnosis of diseases and other medical conditions such as genetic disorders, and early and accurate diagnosis may lead to early treatments and, ultimately, at least in some cases, saved lives. But the creation of medical diagnostic technologies often comes at great cost, and so a relevant question thus becomes how to fund the underlying work required to create these technologies. The two options up for consideration, broadly speaking, are private and public investment. Hoyt addresses the former by collecting and analyzing data to determine the role of utility patents—and in particular patent eligibility law—in supporting private investment. Given her analysis and conclusions, here I highlight the latter option, public investment.

Note

by Phillip Harmon

In the United States, state data breach notification laws protect citizens by forcing businesses to notify those citizens when their personal information has been compromised. These laws almost universally include an exception for encrypted personal data. Modern encryption methods make encrypted data largely useless, and the notification laws aim to encourage good encryption practices.

This Note challenges the wisdom of laws that place blind faith in the continued infallibility of encryption. For decades, Shor’s algorithm has promised polynomial-time factoring once a sufficiently powerful quantum computer can be built. Competing laboratories around the world steadily continue to march toward this end. Once quantum computers become strong enough, classical encryption will no longer remain secure.

Ramifications of quantum decryption would reverberate through all aspects of security and society. This Note focuses only on the interplay of this development with data breach notification laws. While these laws cannot prevent technological progress, a federal data breach notification law could encourage adoption of a quantum-secure classical encryption method. This would dampen the harm quantum decryption causes by limiting the relevance of newly useful encrypted data.

Article

by Beth Burgin Waller and Elaine McCafferty

The legal framework that was built almost two decades ago now struggles to keep pace with the rapid expansion of technology, including quantum computing and artificial intelligence, and an ever-evolving cyber threat landscape. In 2002, California passed the first data breach notification law, with all fifty states following suit to require notice of unauthorized access to and acquisition of an individual’s personal information. These data breach notification laws, originally designed to capture one-off unauthorized views of data in a computerized database, were not built to address PowerShell scripts by cyber terrorists run across thousands of servers, leaving automated accessed data in their wake. Similarly, the safe harbors for encryption built into these statutes were not designed with quantum computing and its possibility of quantum decryption in mind. These evolving technologies and threats require that state data breach notification laws be reformulated for a modern era. This Comment examines the interplay between these challenges and discusses a path forward.

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