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Washington and Lee Law Review - Print Edition


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.


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.


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.


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.


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.


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.


by Tammi S. Etheridge

Over the past ten years, administrative law scholarship has increasingly focused on interactions between multiple agencies. As part of this trend, most scholars have called for policymakers to combine multiple agencies, rather than rely on a single agency, to solve policy problems. The literature in this area espouses the benefits of shared regulatory space. But very little of this scholarship addresses when shared jurisdiction is problematic. This is particularly concerning when an agency opts into or cedes oversight authority to another agency at will, with little regard for whether the second agency is an appropriate regulator. The case of cell-cultured (or lab-grown) meat presents one such example. In 2018, both the U.S. Food and Drug Administration and the U.S. Department of Agriculture separately announced that regulating cell-cultured meat fell under their sole purview, to the exclusion of the other agency. After much back-and-forth, the agencies issued a joint statement announcing a shared system of regulatory oversight.

This Article argues that the FDA should not have ceded any of its regulatory authority to the USDA because joint regulation of cell-cultured meat, as between the FDA and USDA, is both inappropriate and unnecessary. USDA involvement is inappropriate because the Department suffers from a mixed mandate problem. Not only is the Department tasked with maximizing agricultural industry profits (and minimizing losses), but it is also tasked with nourishing Americans (and improving nutrition and health). In the case of cell-cultured meat, these two goals are diametrically opposed. Further, USDA involvement is inappropriate given the Department’s purview, as set by Congress, and its concomitant expertise. As it relates to meat, the USDA exists specifically to monitor the safety and sanitation of the nation’s farms, slaughterhouses, and meat processing and packaging plants. Consequently, all the Department’s meat-related regulations and expertise are in these areas. USDA involvement in the regulation of cell-cultured meat is also unnecessary because it is redundant. Accordingly, this Article’s analysis belies the notion that all agency collaboration is good collaboration.


by Marissa Jackson Sow

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as social and financial inequalities have become ever starker. These abuses are not effectively reached by antidiscrimination law, leaving Black and Indigenous people with rights, but no remedies, as they are forced to navigate a degraded existence suspended somewhere between citizen and foreigner, and more importantly, between life and death.

In analyzing the persistence, resilience, and agility of white supremacy in the United States, this Article proposes a departure from reliance on the extant antidiscrimination legal frameworks in the United States. The Article offers a theory of whiteness as contract, providing scholars, activists, and movement lawyers with a new prism of analysis for the structural and physical violence that those raced as Black endure at the express direction of the state. Despite federal law formally establishing racial equality with respect to citizenship—and with citizenship, the rights to contract and to property—an invisible common law sets forth that Black people are not in privity with the state and lack contractual capacity with the white body politic or its individual members. Under the terms of this contract for whiteness, for which those raced as white have bargained, Black people lack capacity to negotiate, occupy, or exercise a reliable authority over property. Moreover, whenever Black people are found to be in trespass on white property, they have no expectation of physical integrity, liberty, or life—or of remedies for breaches thereof.

An end to anti-Black state violence requires revoking the terms of whiteness and instituting a new social contract that accords Black people full political personhood and full citizenship, complete with full contracting capacity and authority, and full protection of their contracts and proprietorship. Scholars and advocates committed to ending structural and physical anti-Black brutality may use the new analytical prism proposed in this Article to explore new advocacy strategies and to consider meaningful racial justice remedies.


by John Valery White

This Article argues that civil rights law is better understood as civil rights equity. It contends that the four-decade-long project of restricting civil rights litigation has shaped civil rights jurisprudence into a contemporary version of traditional equity. For years commentators have noted the low success rates of civil rights suits and debated the propriety of increasingly restrictive procedural and substantive doctrines. Activists have lost faith in civil rights litigation as an effective tool for social change, instead seeking change in administrative forums, or by asserting political pressure through social media and activism to compel policy change. As for civil rights litigation, activists have, most damningly, ignored it. This Article makes a preliminary case for understanding civil rights jurisprudence as a contemporary version of traditional equity, available in limited circumstances to address extraordinary violations of rights. Civil rights litigation has become a limited tool: inappropriate for driving social change, unreliable for litigants involved in everyday disputes, and mostly incapable of articulating and developing rights through precedent. Judges are the powerful, central figures in this litigation. And the rights landscape is structured by the capabilities and demands of the kind of equity regime civil rights litigation has become. What emerges is a vision of the courts as protectors of the status quo in social and political relationships.


by Najarian R. Peters

Like its counterpart in the criminal justice system, dirty data—data that is inaccurate, incomplete, or misleading—in K-12 education records creates and catalyzes catastrophic life events. The presence of this data in any record suggests a lack of data integrity. The systemic problem of dirty data in education records means the data stewards of those records have failed to meet the data integrity requirements embedded in the Family Educational Rights and Privacy Act (FERPA). FERPA was designed to protect students and their education records from the negative impact of erroneous information rendered from the “private scribblings” of educators. The legislative history of FERPA indicates that legislators were concerned about the harm to students’ education and the structure of opportunities based on misinformation in secret files created and kept in schools. Dirty data created, collected, and processed as accurate and reliable, notwithstanding the disproportionate impact of school discipline, on marginalized students in general, and Black children specifically, is exactly the kind of harm that FERPA was intended to prevent. This Article demonstrates (1) how educational inequities linked to dirty data implicate student privacy interests understood at the time FERPA was created; and (2) how FERPA should be enhanced to prevent dirty data harms at the point of collection and creation. Additionally, this Article outlines the concept of dirty data and data integrity requirements embedded in FERPA and proceeds to examine the phenomenon of dirty data and student harm in historically marginalized students’ education records, starting at the point of creation and collection. While several Articles have examined the failure of FERPA, none of the prior scholarship has analyzed FERPA’s connection to dirty data in the education record related to racial discrimination. This Article introduces a two-step process that would require input validation in the educational record context through (1) substantive content and input validation; and (2) a reasonable inference review. Finally, this Article introduces a requirement of accounting of disclosures to law enforcement.