Menu Close

Washington and Lee Law Review - Volume 79:4


by BJ Ard

This Article intervenes in the longstanding debate over whether creative production is possible without exhaustive copyright protection. Intellectual property (IP) scholars have identified “negative spaces” like comedy and tattoo art where creativity thrives without IP, but critics dismiss these examples as niche. The video game industry allows for fresh headway. It is now the largest sector in entertainment—with revenues greater than Hollywood, streaming, and music combined—yet IP does not protect key game elements from duplication. Participants navigate this absence using non-IP strategies like those identified in negative-space industries: AAA developers invest in copy-resistant features while indie game developers rely on community norms. The answer to whether creative production is possible within IP’s negative space even in a capital-intensive industry is thus a decisive yes.

Studying this industry also compels us to go beyond surface-level questions of whether creative production is possible and to grapple with how the configuration of IP and non-IP protections shapes what is produced and how this configuration favors some creators over others. The industry likewise pushes us to recognize that the stability of these regimes is contingent on broader features of technology, the economy, and society at large. In fact, the industry has come full circle from a sector where copying plagued the industry, to one where it became a non-issue, to one where it has reemerged as a problem in mobile gaming.

The video game industry is also crucial for study because it embodies the state of creative production in the information age. Scholarship has long treated legacy industries like Hollywood and music as paradigmatic without attending to the complex realities of modern creative production and the importance of going beyond IP to understand how these industries work. It is time we moved past the conceptual divide between “full IP” and negative spaces to interrogate the overlapping but partial legal protections across both sides of the line.


by RonNell Andersen Jones and Sonja R. West

At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it and the Roberts Court’s claims of First Amendment expansiveness, freedom of the press is quietly disappearing from the Court’s lexicon.

Our individually coded dataset, capturing every paragraph mentioning the press written by all 114 Justices in the 235-year history of the Court, shows that in the last half-century the Court’s references to the concept of freedom of the press have dramatically declined. They are now lower than at any other moment since the incorporation of the First Amendment. The jurisprudential desertion of this concept is evident in every quantitative and qualitative measure we analyzed. Press freedom was once a commonly adopted frame, with the Court readily acknowledging it on its own and as a coexisting First Amendment right alongside the freedom of speech. Indeed, Justices routinely recognized this right in cases not involving the press. The data reveal that this practice is a thing of the past. Gone are not only the ringing, positive endorsements that situated freedom of the press as valuable, important, or central to democracy but also the bare acknowledgements of the right at all. A close investigation of individual Justice’s patterns, moreover, reveals that there are no true advocates of the right on the current Court and that most of the current Justices have rarely, if ever, mentioned it in any context.

This Article addresses both the possible causes and the troubling consequences of this decline. It explores strong evidence contradicting many of the initially appealing explanations for the trend, examining the ways in which the phenomenon is unlikely to be solely a function of the Court’s decreasing press-related docket or its reliance on settled law in the area. It also explores data on the interrelationships between ideology and acknowledgement of freedom of the press. The disappearance of the principle of press freedom at the Court may impede the newly revived effort to invoke the Constitution as a tool for preserving the flow of information on matters of public concern.


by Elizabeth Kukura

Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink the perinatal health equity gap, as reflected in a pregnancy-related mortality rate for Black women that is three to four times higher than for White women.

As COVID-19 case rates declined and hospitals relaxed their restrictions, some doulas found themselves subject to new hospital credentialing requirements in order to attend births, even though they serve in nonclinical roles and are hired by the birthing person rather than the hospital. This Article explores the often-contested relationship between doulas and hospitals, and between doulas and hospital-based perinatal care providers, against the historical backdrop of other restrictions on birthing companions since birth shifted from the home to the hospital around the turn of the twentieth century. It details the important role doulas play in promoting good perinatal health outcomes and considers why many hospitals and healthcare providers perceive doulas as a threat rather than as a source of value in the delivery room, which results in strategies to restrict doulas through formal and informal mechanisms. This Article suggests that hostility to doulas and restrictions on birth support reflect central qualities of mainstream perinatal care, such as liability-driven decision-making, nonadherence to evidence-based medicine, medical paternalism, and fear, all of which interfere with efforts to improve health outcomes in the midst of a maternal health crisis that disproportionately burdens communities of color.

Ultimately, this Article argues that doula credentialing is a regulatory mismatch that should be abandoned by hospitals as misguided and counterproductive, and instead identifies public and private policy changes, along with related advocacy strategies, that would provide appropriate recognition of doulas within the perinatal healthcare system and serve both patient and provider interests while protecting the autonomy of doulas to operate within their scope of practice. Increased attention to the United States’ maternal health crisis and the opportunity to advance healthcare reforms that incorporate lessons from the pandemic make this a critical time to prevent the widespread adoption of credentialing requirements before they become the default norm, and instead to pursue investment in growing the doula model as an efficient and effective means to improve childbirth experiences and reduce the stark racial inequities in perinatal health outcomes.


by Audrey Curelop

In the twentieth century, the American agricultural industry underwent significant changes—while most food animals were once raised on small family farms, now, over fifty percent are produced entirely inside concentrated animal feeding operations. These large‑scale farming operations house hundreds to thousands of cows, swine, or chickens, which collectively produce hundreds of millions of tons of waste per year. The primary method of waste disposal is land application, a process in which waste is sprayed or spread onto land with no required pretreatment. After land application, waste byproducts make their way into the surrounding air and waterways, posing significant threats to human health and the environment.

This Note challenges this industry‑accepted method of waste disposal. It argues that federal environmental and regulatory law and state nuisance law coincide to effectively protect large‑scale agricultural facilities from liability at a detriment to American health. This Note examines liability carve-outs for industrial farming in three federal statutory schemes: the Clean Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation and Liability Act. When federal environmental protections fail, affected parties often turn to common law tort redress. But state Right‑to‑Farm laws have effectively barred these claims as well.

Although the products of industrial agriculture are enjoyed by the many, the environmental and health impacts of the farms’ waste disposal systems fall on the few. This Note additionally seeks to highlight the communities most affected—primarily, low‑income communities and communities of color that neighbor the farming operations.

The most comprehensive solution to this health crisis involves an ideological shift in the way the American public conceptualizes the farm-to-table pipeline. This Note ultimately argues that this shift requires a catalyst—a robust federal initiative that disincentivizes hazardous agricultural waste practices and incentives sustainable farming.


by Jessica Matsuda

State legislatures across the nation are continually targeting the rights of transgender individuals with a variety of laws affecting everything from bathrooms to medical care. One particularly invasive type of legislation, the gender-affirming healthcare ban, seeks to prohibit all forms of healthcare that align a person’s physical traits with their gender identity for individuals under eighteen. Bans like this severely impede the treatment necessary for transgender youth suffering from gender dysphoria, which carries serious physical consequences and sometimes fatal psychological repercussions. As legislative sessions pass, more and more states are introducing and actually enacting these bans

Striking down these bans as constitutionally impermissible is vital to ensuring that transgender individuals have equal access to healthcare. As litigators bring important and crucial lawsuits to challenge these bans under the federal Constitution, this Note proposes and explores options under the lesser-known but highly valuable state constitution. Although often ignored, many state constitutions contain enforceable rights that could protect the existence of gender-affirming healthcare, especially if federal constitutional protection is denied at the Supreme Court. This Note specifically dives into the state constitutional right to health as an avenue for greater protection, and argues that the general principles of judicial federalism should protect the rights of transgender individuals in this context. As the federal landscape changes, this Note urges litigators to use all the resources available to prevent unwarranted state interference, including previously unenforced state constitutional provisions. State legislators cannot be allowed to violate their own constitutions in the campaign against transgender individuals, and litigators have the ability and obligation to hold them accountable.