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Washington and Lee Law Review - Print Edition

Article

by Mitchell F. Crusto

The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no unifying term or concept for this moving force that has guided our constitutional development.

This Article seeks to redefine our rights to individual liberties through a concept that I call “Right of Self.” It introduces the concept of Right of Self as the legal recognition and protection of a person’s attributes or identity, including one’s labor; name, image, likeness (NIL); and other unequivocal identifiers. It is critical to clearly define this fundamental principle and embrace it as a protected right for several reasons, but mainly because modern technology has increased the number of ways in which the self is being expropriated, for example through the abuse of facial recognition technology. Without Right of Self, the powerful–often with the government’s tacit or direct support–can exploit people without restrictions or compensation. To illustrate this point, this Article analyzes a contemporary case of government-assisted, “private” taking of Right of Self that concerns a particular and vulnerable group of people: college student athletes.

This Article argues that Right of Self is an inherent, fundamental, and constitutionally based right of every person in America. It shows how the failure to embrace and protect that right has resulted in a particular form of inequity, which I call “intergenerational wealth displacement.” This inequity is rooted in race, gender, status, age, and class differences. To redress it, this Article proposes a model code that policymakers should adopt to recognize Right of Self as a fundamental right and to broadly apply it to protect people from the exploitation of their name, image, and likeness.

Article

by Reid Kress Weisbord and David Horton

Recently, the #FreeBritney saga cast a harsh spotlight on state guardianship systems. Yet despite their serious flaws, guardianship regimes have benefited from waves of reform. Indeed, since the 1970s, most jurisdictions have taken steps to protect the autonomy of people with cognitive, intellectual, or developmental disabilities (CIDD). Likewise, lawmakers are currently experimenting with supported decision-making (SDM): an alternative to guardianship designed to help individuals with CIDD make their own choices. These changes are no panacea, but they have modernized a field that once summarily denied “idiots” and “lunatics” power over their affairs.

However, in a related context, the legal system’s treatment of individuals with CIDD remains rooted in the past. Since the sixteenth century, judges have voided wills executed by owners who lack testamentary capacity. This Article reveals that this notoriously problematic rule has resisted the progressive forces that have swept through guardianship law. The Article then offers fresh insight into how parties litigate testamentary capacity claims by reporting the results of a study of 3,449 estates from California. Finally, the Article analyzes several unsettled doctrinal issues, such as whether testators have due process rights to participate in adjudications of their own competence, the relationship between SDM and will-making, and the appropriate capacity test for nonprobate transfers.

Article

by Albert C. Lin

In recent months, dozens of countries and thousands of businesses have pledged to achieve net zero greenhouse gas emissions. However, net zero often means different things to different entities, and it is often uncertain how net zero pledges—which set targets years or decades from the present—will be met. This Article considers the motivations behind net zero pledges, highlights the underappreciated role of carbon removal in net zero efforts, and identifies mechanisms for encouraging the accomplishment of net zero goals. Two key strategies are essential to making net zero targets matter. First, society should develop and implement accountability and enforcement mechanisms to promote follow through on net zero commitments. These mechanisms include disclosure standards, benchmarks, contractual arrangements, and legal claims under securities and consumer protection laws. Second, net zero pledges should incorporate distinct targets for emissions reduction and carbon removal. Carbon mitigation and carbon removal differ in significant ways with respect to verifiability, permanence, readiness, and risks. Distinguishing carbon mitigation and carbon removal in net zero goals is essential to avoid undermining efforts to achieve climate goals, shifting the burdens of climate action to vulnerable populations or future generations, and increasing societal, health, and environmental risks.

Article

by Khaled Ali Beydou

Foundational surveillance studies theory has largely been shaped in line with the experiences of white subjects in western capitalist societies. Formative scholars, most notably Michel Foucault and Gilles Deleuze, theorized that the advancement of surveillance technology tempers the State’s reliance on mass discipline and corporal punishment. Legal scholarship examining modern surveillance perpetuates this view, and popular interventions, such as the blockbuster docudrama The Social Dilemma and Shoshana Zuboff’s bestseller The Age of Surveillance Capitalism, mainstream the myth of colorblind surveillance. However, the experiences of nonwhite subjects of surveillance—pushed to or beyond the margins of these formative discourses—reflect otherwise.

By disrupting surveillance theory and pushing it beyond the white subject and the West, this Article introduces the “society of subjugation” as a rebuttal. First, society of subjugation theory demystifies the colorblind presumption that advancements in surveillance technology humanize the State’s administration of it by diminishing reliance on mass discipline and punishment. Second, this unchecked deployment of digital surveillance in authoritarian states is intended to subjugate minority groups marked as oppositional, a form of collective discipline and punishment that supersedes social control—as critical scholars examining racialized surveillance in the United States have argued. Through its focal case study of Uyghur surveillance in China, this Article analyzes how state administration of digital surveillance blurs the mandates of mass control, discipline, and punishment into a state ensemble of subjugation.

Further, this Article builds on surveillance literature by arguing that the salient locus of state surveillance may be racial identity, but, depending on the political context, may fixate on other forms of subaltern identity such as religion, sexual orientation, gender, and their intersections. In turn, this expands scholarly analysis and attention to other groups stigmatized by the rising tide and deepening gaze of digital surveillance—a phenomenon unfolding on a global scale.

Note

by T.J. Benedict

Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing probable cause. This Note suggests a framework for how courts can evaluate FRT and probable cause. Case law about drug-sniffing dogs provides a starting point for assessing what role an FRT identification should play in probable cause determinations. But drug dogs are not a perfect analogue for FRT. Two important differences between these two policing tools warrant treating FRT with greater scrutiny than drug dogs. First, FRT has baked-in racial, gender, and age biases that drug dogs lack. Second, FRT is a digital policing tool, which recent Supreme Court precedent suggests merits more judicial scrutiny than non-digital police tools like dogs.

Giving FRT a closer look leads to the conclusion that an FRT identification alone is insufficient to establish probable cause. FRT relies on flawed inputs (non-diverse data) that leads to flawed outputs (demographic discrepancies in misidentifications). These problematic inputs and outputs provide complimentary reasons why an FRT identification alone cannot provide probable cause.

Note

by Richard H. Gilliland III

The battle over worker classification between state governments, on the one hand, and gig economy companies, on the other, has raged since at least the first time someone ordered an Uber. Nowhere has this battle played out more prominently in recent years than in California. In 2019, the state legislature passed AB 5, a bill which adopted a stringent independent contractor standard and effectively classified all gig economy workers as employees of the companies whose apps they use to find work. AB 5’s ripple effects were enormous—the significant popularity of gig economy apps among consumers launched what might have been obscure, legalistic wrangling about worker classification standards to the forefront of the public consciousness. The bill’s passage engendered public outcry, legal challenges, media hysterics, and a record-breaking referendum initiative whose outcome is still the subject of litigation. In a sense, strong reactions to a bill like AB 5 are to be expected— worker classification schemes strike at the heart of individuals’ ability to earn income and to receive certain protections and benefits reserved only for employees. But largely missing from the fevered debate over AB 5 has been a close examination of the bill’s place in the long history of worker classification jurisprudence, its effectiveness as reform, and its viability to accomplish its own aims. This Note attempts to do just that and concludes that California AB 5 should not serve as a model for other states seeking to address the challenges the gig economy poses to existing worker classification schemes.

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.

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