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Foreword, in The First 125 Years: An Illustrated History of the Association of American Law Schools (Jean Waterman & Judith Areen eds., 2024)
No full textThe First 125 Years: An Illustrated History of the Association of American Law Schools chronicles the development of AALS from the moment of its creation through today. It traces the growing number of AALS member schools; profiles the breadth of AALS contributions to scholarship, teaching, and law school curricula; and describes how AALS grew from a “good old boys’ network” to a democratized organization that not only embodies but champions core values of excellence, integrity, diversity of viewpoints, and devotion to justice and public service.
Led by former AALS Executive Director Judy Areen with co-author Jean Waterman, The First 125 Years is the first detailed history of the association and features archival photos from many of our member schools. Work on the book began in 2023 as a way to commemorate the upcoming anniversary, and it was published in late 2024.https://scholarlycommons.law.wlu.edu/fac_books/1205/thumbnail.jp
Amended Expert Disclosure Report: \u3cem\u3eNavahine v. Dept. of Transportation, State of Hawai’i\u3c/em\u3e
Get PDFFrom a historical and sociological legal perspective, children in America, including in Hawai\u27i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai\u27i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai\u27i similarly require that courts accord special attention and protection for children.
On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in the world
Washington and Lee School of Law Library, in Organizational Structures of Academic Law Libraries: Past, Present, and Future, Vol. 2 (Jessica de Perio Wittman & Elizabeth G. Adelman eds., 2024)
No full textThere are 3 academic law library model structures: autonomous, semi-autonomous, and the shared services model: An autonomous law school library is a library that is part of an independent law school or one that, despite being on a university campus, operates independently from the central campus library. The director of an autonomous law library reports to the dean of the law school. Typically, the law library’s budget is allocated from the law school budget at the discretion of the dean. A semi-autonomous law library is administratively connected to both the law school it serves and the university’s central library. The director of a semi-autonomous law library reports to the dean of the law school and to the university librarian. The semi-autonomous law library’s budget is typically derived from the central library’s funds. In the shared services model, an autonomous law library has consolidated select services with the central library, but the remaining reporting structure and budget resemble those of an autonomous law library.
During the last decade many institutions have considered the possibility of transitioning to a different law library structure because it appears to be a path for the institution to save money. This book will shed light on the different structures and the issues associated with each by hearing from law school deans, directors of the law library, and even university librarians.https://scholarlycommons.law.wlu.edu/fac_books/1188/thumbnail.jp
The Scope of Election Litigation
Get PDFOne way to think about the “scope” of a case is based on the range of parties who are—or must be—involved in it. The broader a case’s scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time-consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to strict time constraints.
This Essay explores doctrines courts have applied in recent years that have unnecessarily expanded the scope of certain election litigation. For example, some courts have applied Bush v. Gore’s Uniformity Principle at the remedial stage of election cases. Under this approach, equal protection concerns would arise from allowing plaintiffs to seek relief against allegedly invalid electoral rules only for themselves, rather than for all impacted voters within the jurisdiction. Such reasoning has led some courts to hold that relief is unavailable unless a challenge to election-related legal provisions is brought by, or otherwise on behalf of, all such voters. Because serving as the plaintiff in a case and obtaining a favorable judgment are legally significant distinctions, courts need not expand the scope of election litigation by applying Bush’s Uniformity Principle at the remedial stage.
Other courts have applied standing doctrine to expand the range of defendants who must be involved in election litigation. These jurisdictions have prohibited plaintiffs from suing a state’s chief election officers (such as a Secretary of State or members of a state election board) to challenge a state law, regulation, or other election-related provision which county officials are primarily responsible for implementing or enforcing. They have instead required plaintiffs to identify, serve, and sue each county election administrator throughout the state, often totaling scores of defendants. Courts need not apply standing doctrine in this manner, however, in order to ensure they can redress plaintiffs’ alleged harm. Since state and county election officials work together to conduct elections, Federal Rule of Civil Procedure 65(d)(2) would likely allow a court to enforce an order involving state election officials against their county counterparts. Moreover, the authority of state election officials in most jurisdictions to make rules, issue directives and guidance to county administrators, and otherwise assure uniformity in elections should also generally be deemed sufficient to ensure such state-level defendants can assure compliance with court orders
A Jacksonian Theory of Estoppel in IP Litigation Against the United States
Get PDFAs an intellectual property infringer, the federal government occupies a unique position as both the entity that approved the infringed patent or trademark and an entity capable of arguing for its invalidity. By arguing for invalidity, the federal government assumes that it should be exempt from the traditional rules of procedural estoppel. Indeed, the government believes that even though it granted intellectual property rights (after careful research and deliberation and following the express review of an officer appointed with the advice and consent of the Senate), it should have a second bite at the apple to invalidate a patent or trademark when it risks liability. Ultimately, permitting the government to argue for inconsistent positions risks making intellectual property litigation—and the government itself—unpredictable and untrustworthy. To remedy this imbalance, this Article advocates for a rethinking of estoppel through Justice Jackson’s Youngstown Sheet concurrence when an examining attorney acts pursuant to unambiguous authority granted by Congress. In doing so, this position equalizes the playing field during litigation that heavily favors the federal government
Introduction, in Sights, Sounds, and Sensibilities of Atrocity Prosecutions (Mark A. Drumbl & Caroline Fournet eds., 2024)
No full textThis book unlocks the look, sound, smell, taste, and feel of justice for massive human rights abuses. Twenty-nine expert authors examine the dynamics of the five human senses in how atrocity is perceived, remembered, and condemned. This book is chockful of images. It serves up remarkably diverse content. It treks around the globe: from Pacific war crimes trials in the aftermath of the Second World War to Holocaust proceedings in contemporary Germany, France, and Israel; from absurd show trials in Communist Czechoslovakia to international courtrooms in Arusha, Phnom Penh, and The Hague. Readers embark on a journey that transcends myriad dimensions, including photographic representations of grandfatherly old torturers in Argentina, narco-trafficking in Mexico, colonialisation in India, disinformation and misinformation pixelated in cyberspace, environmental degradation in Cambodia, militarism in Northern Ireland, and civil rights activism in Atlanta. Sights, Sounds, and Sensibilities of Atrocity Prosecutions reimagines what an atrocity means, reconsiders what drives the manufacture of law, and reboots the role of courtrooms and other mechanisms in the pursuit of justice. It unveils how law translates sensory experience into its procedures and institutions, and how humanistic inputs shape perceptions of right and wrong. This book thereby offers a refreshing primer on the underappreciated role of aesthetics, time, and emotion in the world of law.https://scholarlycommons.law.wlu.edu/fac_books/1211/thumbnail.jp
Beyond Trade Secrecy: Confidentiality Agreements that Act Like Noncompetes
Get PDFThere is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.
Despite widespread use, confidentiality agreements have received little attention. Many commentators view them as innocuous compared to noncompetes. However, confidentiality agreements that go beyond trade secrecy are not harmless. Leveraging an original dataset of confidentiality agreements in employment relationships disclosed in federal trade secret litigation, this Article argues that many of these agreements have the effect of noncompetes. They protect far more information than trade secret law does—including publicly available or generally known information, and information that trade secret law would classify as unprotectable “general knowledge, skill, and experience.” They prohibit use as well as disclosure of the covered information. Most provide for injunctions in the event of breach, and nearly half provide for payment of attorney’s fees and costs. And unlike most noncompetes, they almost never have geographic or temporal limitations.
The phenomenon of confidentiality agreements that “act like noncompetes” has not gone unnoticed. For example, the Federal Trade Commission (FTC) recently issued an unprecedented Notice of Proposed Rulemaking announcing its intention to effectively ban workplace noncompetes nationwide. The FTC also condemned what it calls “de facto non-compete clauses,” including overly broad confidentiality agreements. The FTC’s rulemaking has yet to move forward and is likely to be mired in legal challenges. Fortunately, this Article reveals that courts across the nation have already begun to invalidate confidentiality agreements that operate as de facto noncompetes. Regardless of whether the FTC ultimately succeeds in regulating these agreements, courts have the power and precedent to do so on their own.
Drawing on case law and prior proposals, this Article gives guidance going forward. It does not advocate for a blanket ban on confidentiality agreements. Rather, it contends that courts and other decision makers should treat confidentiality agreements that go beyond trade secrecy under a default rule of unenforceability, similar to how most jurisdictions treat noncompetes. The burden should be on the employer to prove that such agreements are reasonably related to protecting legitimately secret information and that they do not function like noncompetes
