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Washington and Lee Law Review - Print Edition


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.


by Deborah Hellman and Kate M. Nicholson

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused on explicit exclusions of people with particular medical conditions or the standards’ failure to be sufficiently individualized. Amending the protocols to address these concerns, while important, will simply tinker at the margins. The more consequential and harder question is how states should balance the demand to save as many lives as possible while also ensuring that people with disabilities and other vulnerable groups are treated fairly.

To answer that question, this Article distills and analyzes four rationing principles that animate the state standards and contends that none ultimately balances these two important aims in a manner consistent with the Americans with Disabilities Act (ADA) and the moral commitments on which it rests. It thus provides a moral and legal framework to guide the ongoing revision of the standards. The Article concludes by proposing a novel, alternative rationing system that reserves resources to accommodate both efficiency and equity, thereby better instantiating the balance that undergirds the ADA.


by Gregory Day

Antitrust rarely, if ever, gives primacy to a dispute’s subject matter. For instance, exclusionary conduct that raises the price of a lifesaving drug receives the same analysis as a restraint of baseball cards. Since antitrust’s purpose is to promote consumer welfare, the equal treatment of important and mundane goods might appear perplexing. After all, competition to produce affordable foods, medicines, and other necessities would seem to foster consumer welfare more than inane products do.

In fact, defendants generally win antitrust lawsuits even when monopolizing necessities because the primary method of antitrust review is notably deferential to defendants. To explain this landscape, the high prices available in a monopoly should incentivize rivals to enter the market, creating competition and correcting the market. Additionally, people may presumably mitigate high prices by buying a lesser substitute or nothing at all. Since courts apply the same level of deference regardless of the market’s importance, a defendant who cites an efficiency gained from excluding competition can typically survive antitrust scrutiny.

This Article argues that core pillars of antitrust make little sense with necessities. An exclusionary act in an essential market extracts an added premium reflecting society’s vulnerability, making the costs of market power much greater than with mundane goods. The effect is that antitrust courts have systematically underestimated the costs of monopolies and trade restraints in essential markets, causing them to misidentify anticompetitive acts as procompetitive. Indeed, whereas antitrust assumes that consumers enjoy options when faced with monopoly pricing, people who need a necessity such as a life-saving drug will pay the high prices so long as they can. The implications are many. First, a larger spectrum of consumers must pay the monopoly rates. Second, whereas a cartel of artisan belt makers may only charge so much before consumers purchase mass-produced belts, a monopolist can demand a greater premium without losing consumers. Third, this landscape incentivizes collusion since firms can extract more money from more people. Fourth, anticompetitive conduct is more likely to harm marginalized groups who suffer higher switching costs (for example, self-medication over expensive pharmaceuticals) or even complete deprivations of necessities. This Article argues that the concepts of essentialness and inelasticity must be integrated into the substantive analysis of whether conduct is anticompetitive. It provides a logical framework to do so using a seldom employed approach called the “quick look,” which would flip the burden onto the defendant and thereby strip the typical analysis of its deference in essential markets. In fact, since confusion over when the quick look is proper has made it a rarity—despite widespread support for its usage—this Article’s approach would establish an effective place for the test. Also, recognizing the greater level of harm inflicted on especially marginalized populations, the proposal would enhance welfare by beginning to disaggregate the term “consumers.”


by Rachel Rebouché

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.

What might surprise even close observers of abortion policy is how the federal courts, including the Supreme Court, have cited contemporary public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion—a two-drug regimen taken over two days—is an example. The federal district court, in that litigation, drew heavily from public health research demonstrating the health consequences of denied or delayed abortion care.

Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering remote or virtual care. The confluence of regulation, funding, and evidence has helped facilitate both telehealth for abortion and self-managed abortions, which can extend abortion access despite the evisceration of constitutional rights.

This Article argues that current developments in abortion law suggest a way forward that hinges neither on defending nor abandoning the constitutional right to abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent—or more possible—than it is right now.