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Brigham-Kanner Property Rights Journal, Volume 12
Get PDFThe Importance of Property Rights
September 29-30, 2022
Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
Panel 3: Roundtable: Emerging Issues in Takings and Property Rights Litigation
Featured Authors (Burling, Kanner, and Valois)https://scholarship.law.wm.edu/propertyjournal/1012/thumbnail.jp
Impediments to Renewed and Reinvigorated Antitrust Enforcement
Get PDFAntitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.
While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept pace with a business world that has evolved from a brick-and-mortar economy into the digital age. Chicago School thought has grown increasingly less relevant in addressing twenty-first century antitrust issues. A second obstacle to an antitrust renaissance is the Rule of Reason as currently construed by the courts. Plaintiffs almost never win Rule of Reason cases. Until courts construe the Rule of Reason in a manner that is truly party-neutral, the cards will remain stacked against antitrust plaintiffs.
To succeed in restoring antitrust to its proper role in our economy, antitrust enforcers must: Refocus the courts on the historic and fundamental role of the antitrust laws to protect competition and not simply to assure allocative efficiency;
Persuade courts that, contrary to Trinko and its progeny, monopoly in and of itself may pose a threat to competition;
Convince courts that dominant firms can exclude rivals by using above-cost pricing strategies, thereby rendering the cost-based approach to predation enunciated in Brooke Group woefully underinclusive; and
Demonstrate to the courts that the Rule of Reason as implemented by the courts is neither administrable nor party-neutral and develop a construction of the Rule Reason that is fair to all parties
Saving the Planet with Legal Research
Get PDFA selection of works in honor of World Wildlife Day (March 3).
On display in the Wolf Law Library March-May 2023.https://scholarship.law.wm.edu/libdisplays/1003/thumbnail.jp
Mitigating Trail Troubles: An Analysis of the Virginia Recreational Land Use Statute
Get PDFWhile the overall focus of this discussion is on the law of Virginia, it is often useful to look elsewhere for comparative purposes. This is especially important when it involves considering the future of Virginia’s recreational land use statute. The overall objective of this discussion is to supplement Virginia’s existing recreational land use legal regime by exploring specific issues related to Virginia’s statutory scheme and identifying areas where further research may be needed.
Four issues involving recreational land use statutes are explored herein. First, the scope of recreational use statutes, namely in Virginia, is examined. This issue addresses the substance of these types of statutes and what these statutes convey in terms of legal rights and protections for both landowners and the public. Second, issues and questions involving admission fees and other types of landowner compensation are discussed in terms of how fees and compensation might incentive use of the recreational land use statute in Virginia. Third, public and private entity protection under these types of statutes is examined. Fourth and finally, general awareness of these statutes, namely in Virginia, is explored.
This abstract has been taken from the authors\u27 introduction
Litigation to Protect the Marine Environment: Parallels and Synergies with Climate Litigation
Get PDFThe world’s oceans are in crisis. Climate change impacts, biodiversity loss, plastic pollution, fisheries collapse, impacts to marine mammals, and vessel-based pollution are among the many threats the marine environment faces today. Fish biomass is predicted to drop by 3% to 25% by the end of the century due to climate change. Worse still, the amount of plastic in the world’s aquatic ecosystems is on track to hit 23 to 37 million tons per year by 2040.
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This Article reviews recent successes and obstacles in using litigation as a tool to address these concerns across several contexts in the marine environment. It surveys developments at the international, national, and subnational levels. The Article offers lessons from creative climate litigation strategies as a way to enhance litigation to protect the marine environment. It also recommends ways in which the ocean-climate nexus can provide mutual benefits in advancing the agendas of climate change regulation and ocean stewardship.
This abstract has been taken from the authors\u27 introduction
How Many More Brazilian Environmental Defenders Have to Perish Before We Act? President Lula\u27s Challenge to Protect Environmental Quilombola Defenders
Get PDFThe Global South has been historically marginalized and continues to suffer from systemic oppression, impeding the realization of their human rights. Afro-descendants and other minority populations in the Global South live in disproportionately environmentally unsafe conditions and are disproportionately more vulnerable to climate change and environmental harm. One of those populations are Quilombolas. Quilombolas are Brazilian Afro-descendant communities who continue to fight to protect their community rights to ancestral lands, natural resources, and survival as a people. The Brazilian government under former Brazilian President Bolsonaro engaged in a persistent and systematic campaign to target, attack, and kill defenders, including Quilombola defenders, who sought to protect the environment and human rights. His government engaged in the systematic deforestation and extraction of natural resources in the Amazon. It is up to Brazil’s re-elected President Luiz Inácio Lula da Silva and his new administration to ensure that the Amazon is protected, and that human rights defenders, including Quilombola defenders, are protected and are able to have justice and accountability for their human rights violations. We must hold the Brazilian state and private actors responsible for human rights violations through the existing rights-based framework through the newly ratified Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (“Escazú Agreement”) and the Esperanza Protocol
ChatGPT in a Contract Drafting Class
Get PDFOur presentation will discuss the impact of ChatGPT on contract drafting pedagogy. Specifically, we will examine ChatGPT’s basis of knowledge and whether it has sufficient theoretical foundation to be used as a pedagogical tool; whether ChatGPT’s practical application supports proven methods of instructional delivery; and ChatGPT’s functionality as an assessment tool.
1. ChatGPT’s basis of knowledge and whether it has sufficient theoretical foundation to be used as a pedagogical tool
Our presentation will compare the pretraining of ChatGPT and to the typical Contract Drafting pedagogy. We will start by showing the program on a screen and asking it how it was trained and what principles it follows to draft contracts. We will then compare this to the principles students are taught to apply in a typical contract drafting class. Our working hypotheses is that ChatGPT draws from internet resources and follows basic principles of clear writing. In contrast, transactional attorneys typically either draft from scratch following whatever conventions they were trained on, or they start with a form or sample document and then revise it for a specific transaction.
2. Whether ChatGPT’s practical application supports proven methods of instructional delivery
We will then show an example of how ChatGPT works by giving it a prompt that would be typical in any contract drafting class and asking it to draft the applicable contract from scratch. It takes less than a minute for the program to draft the type of contract students typically draft in class. We will examine the sufficiency of ChatGPT’s output. The next step will be to highlight errors and other issues with the document ChatGPT drafts. We will ask the program if it can draft the contract following certain conventions (since drafting courses are typically taught according to conventions) and see whether it can actually do what it says it can do (it can’t). Ultimately, we will look at techniques that can be used to improve the quality and completeness of the documents ChatGPT produces so that it aligns more with the way contract drafting classes are typically taught. The program works better, for example, if you ask more specific questions and provide feedback on the output
An Interview with Timothy J. Sullivan
Get PDFIf you know from whence we came, let\u27s just say from 1920, to where we are today, it\u27s an extraordinary story. -- Tim Sullivan.
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The interview of Timothy J. Sullivan, Dean Emeritus of William & Mary Law School and President Emeritus of the College of William & Mary in Virginia, occurred on Tuesday, March 28, 2023, from approximately 2:00 P.M. to 3:00 P.M. in the Media Center of Swem Library. The interview concerned Timothy Sullivan’s tenure at the law school, beginning with his time as a member of the faculty in the early 1970s and continuing to the conclusion of his time as dean of from 1985 to 1992.https://scholarship.law.wm.edu/oralhist_all/1000/thumbnail.jp
Menstrual Justice in Theoretical Context
Get PDFThis Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In addition to exploring the theoretical lenses employed by the authors, this Essay suggests that other critical perspectives, including critical and global critical race feminism, might further elucidate the nature of the menstrual injustices the authors expose. This Essay posits that Menstruation Matters convincingly illustrates that feminist legal theory—comprising a whole variety of perspectives and approaches—is as relevant as ever.
Crawford & Waldman emphasize that menstrual equity is necessary to facilitate menstruators’ full participation in public life. The Essay suggests that this instrumental conception of menstrual equity may insufficiently recognize the inherent dignity of menstruators, irrespective of whether and how that equity enables their societal contributions. It suggests instead that menstrual equity is necessary and justified, not principally for any instrumental purpose, but simply because it affords menstruators the dignity to which they are entitled as full and equal members of society