Table of Contents
Articles
The New Glass Ceiling
Andrea Kupfer Schneider, Abigail R. Bogli & Hannah L. Chin
In every sector of the workforce, there is evidence of gender discrimination, inequality, and bias. Not surprisingly, the legal profession is not immune. First excluded from practicing law, by the end of the twentieth century, women achieved gender parity in law school admissions. Law school graduates in the 1990s, including one of this Article’s authors, were told that it was only a matter of time before equality in all areas of the law would occur. This promise has yet to be realized. While the percentage of women law school graduates has topped fifty percent for years now, women have yet to achieve equal representation in leadership or in salary at law firms. And, faced with an unequal and often hostile environment, women leave. Many of us assume that hard work and diligence—hallmarks of a successful student— will result in a successful career. Yet, measured by leadership, salary, or tenure, we see that is not the case. Nor is it enough to assume that time will bring change.
Likelihood of Generic Confusion
Deven R. Desai
New food production and marketing can improve food security, but it can also foster misinformation and create public harm. For example, PBB “milks” fail to meet the legal standard for milk, but the PBB industry wants to call its products “milk” to reach the dairy-consuming market. At the same time, medical research shows infants, toddlers, adolescents, and adults are harmed by confusion created when the PBB industry uses the term milk. Consumers are unaware that PBBs often lack the same nutrition as milk and so are not receiving the nutrition they need. Similar issues are appearing in other substitute and synthetic food sectors. Put simply, food innovation and marketing can often clash with public health and consumer protection.
The current caselaw offers unsatisfying analysis of and solutions for the problem. Caselaw to date is thin in part because the FDA’s tests for harm are underdeveloped and undertheorized. This Article fills this gap by developing a new test, the Likelihood of Generic Confusion Test, to address when advertising and branding use of a generic term may harm the public. The Test draws on several aspects of trademark law, including the deceptively misdescriptive marks test, the likelihood of confusion test, and the genericism doctrine. By combining these doctrines, the Test offers a path to allowing innovative food production and creative marketing to thrive while also protecting consumers from unnecessary and harmful business practices.
Entrusting Groundwater
Sean Lyness
Groundwater is a precious—and all too often scarce or polluted— resource. As groundwater withdrawals continue apace, challenges have emerged around groundwater quality and quantity. In the past several years, courts and legislatures have increasingly been called on to resolve disputes involving groundwater.
One recourse is the public trust doctrine—the principle that certain natural resources are held in trust by the state for the benefit of the public. But is groundwater a public trust asset? Should it be? And what does a groundwater trust look like?
This Article seeks to answer these questions, exploring the relationship between groundwater and the public trust doctrine. It makes three contributions: (1) a catalog of the recent state-level debates over whether groundwater is a public trust asset; (2) a normative case for why groundwater should be a public trust asset; and (3) an articulation of how to entrust groundwater.
Lecture
American Democracy and the Rule of Law in Peril
Honorable J. Michael Luttig & Charlie Sykes
Comment
The Dollar Store Conundrum
Madeline Ehlinger
Dozens of local zoning boards across the country have passed zoning ordinances aimed at stopping the dollar store spread. This Comment argues that the solution lies in statewide action and legislation, attacking the problem from a necessarily higher level. Although the actions of localities are commendable and potentially impactful, the solution to the dollar store invasion cannot come wholly from local zoning—the very process that arguably gave birth to the dollar store rise to begin with. The host of issues associated with dollar stores are only becoming more pressing, demanding a statewide response. This response is necessary not only to address the immediate concerns of the dollar store spread, but also to remedy the decades-long injustice caused by exclusionary zoning. Just as states have belatedly stepped in to address the affordable housing crisis, states must take action to cure the dollar store conundrum.
Note
Let Slip the Dogs of Drug War: Law Enforcement Canines Don’t Fall Under the “Only-Contraband” Exception
Olivia Phelan Heiser
The 2018 Farm Bill removed hemp from the Schedule I list of the Controlled Substances Act. This legal change caused law enforcement agencies and courts to reanalyze assumptions made in routine investigation tactics and prior caselaw. Some law enforcement agencies still use marijuanatrained canines. Previous Supreme Court cases have held that a sniff by a law enforcement canine is not a Fourth Amendment search because these canines detect only contraband. But marijuana-trained canines cannot detect a difference between hemp and illicit marijuana. Because these canines no longer detect only contraband, the “only-contraband” exception should no longer apply—a canine sniff is a search that requires probable cause.