Washington Law Review

Current Issue

Volume 93, Number 3 - October 2018

Title Author Citation

Does Small Group Health Insurance Deliver Group Benefits? An Argument in Favor of Allowing the Small Group Market to Die


View Abstract

Does Small Group Health Insurance Deliver Group Benefits? An Argument in Favor of Allowing the Small Group Market to Die

October 01, 2018 | 93 Wash. L. Rev. 1122

Abstract:  The small group health insurance market is failing. Today, fewer than one-third
of small firms now offer health insurance and the number of people covered by small group
insurance continues to drop. These problems invite the obvious question: What should be
done about the small group market? Past scholarship on the small group market has largely
focused on documenting the market’s problems, evaluating the effectiveness of prior reform
efforts, and proposing regulatory changes to stabilize the market. This Article takes a
different approach to the small group problem by asking a previously unasked question: Does
the small group market deliver group insurance benefits? Group insurance, first established
in the life insurance industry, came about because it offered insureds a better deal than
individual coverage. Group insurance provided four core benefits: reduced adverse selection,
lower administrative costs, greater access to insurance, and tax-subsidized premiums. This
Article argues the small group market largely fails to deliver the core benefits of group
coverage. For many, the small group market offers no better deal than the individual market.
Given these findings, it is hard to justify further interventions to save the small group market.
The decline and dissolution of the small group market would likely shift millions to the
individual market, resulting in a substantially larger and more stable individual market.

View Article ×
John Aloysius Cogan Jr. 93 Wash. L. Rev. 1122

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty and the Right to Exclude


View Abstract

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty and the Right to Exclude

October 01, 2018 | 93 Wash. L. Rev. 1181

Abstract:  Over the past few decades, landowners have tried to use the First, Fourth, and
Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts
were to succeed, there would be a host of negative consequences, and not just for surfers. In most states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would have a significant impact on public access.

This Article explores the possibility that courts and the public can put an end to the beach
privatization movement simply by pointing to the common law of waterfront property.
Historically, both courts and scholars have largely ignored the challenging title issues created
by the common law and, in particular, by the rules governing boundary relocation after
waves, currents, tides, and winds have changed the shape of a beach. These rules serve
important purposes, but also make it impossible to know the location of public-private beach
boundaries in real time, that is, at the moment the landowner wishes to use the boundary to
exclude others from her property. The consequence of this real-time uncertainty is that, as a
matter of law, landowners do not have an enforceable right to exclude. The absence of a right to exclude not only undercuts constitutional claims premised on its existence, but also leads to the conclusion that the public has the right to use the entire beach.

If there is no right to exclude, what are the beachfront owner’s rights? Real-time
uncertainty makes it impossible for the owner to prove title in real time, but the same would
also be true for the state; thus the state and neighboring owners enjoy a form of co-tenancy in the sand. To protect the private interest, and to fill the vacuum left by the vanished right to exclude, this Article suggests that the state should grant landowners a more stable exclusion line, at the top of the beach, and give each landowner the right to prevent unreasonable public use of adjacent beach areas.

View Article ×
Josh Eagle 93 Wash. L. Rev. 1181

Emojis and the Law


View Abstract

Emojis and the Law

October 01, 2018 | 93 Wash. L. Rev. 1227

Abstract:  Emojis are an increasingly important way we express ourselves. Though emojis
may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—
such as whether someone should be obligated by contract, liable for sexual harassment, or sent
to jail.

Our legal system has substantial experience interpreting new forms of content, so it should
be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra
interpretative challenges. This Article identifies those attributes and proposes how courts
should handle them.

One particularly troublesome interpretative challenge arises from the different ways
platforms depict emojis that are nominally standardized through the Unicode Consortium.
These differences can unexpectedly create misunderstandings.

The diversity of emoji depictions is not technologically required, nor does it necessarily
benefit users. Instead, it likely reflects platforms’ concerns about intellectual property
protection for emojis, which forces them to introduce unnecessary variations that create
avoidable confusion. Thus, intellectual property may be hindering our ability to communicate
with each other. This Article will discuss how to limit this unwanted consequence.

View Article ×
Eric Goldman 93 Wash. L. Rev. 1227

The Legal Monopoly


View Abstract

The Legal Monopoly

October 01, 2018 | 93 Wash. L. Rev. 1293

Abstract:  Lawyers enjoy an exclusive monopoly over their craft, one unlike any other
profession or industry. They bar all others from offering legal representation. In most
jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as
well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to
protect the public and preserve professionalism, but it also reduces competition, constrains
information, and maintains artificially high prices. Consequently, much of the American public
goes without help when a lawyer is needed.

Federal antitrust law typically steps in to remedy this sort of pervasive market control,
promoting competition and free markets for the public good. The legal profession, however,
largely avoids antitrust scrutiny because the courts fall into a special exception known as the
“state action doctrine,” permitting anticompetitive actions by governmental bodies to engage
in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying
this exception—that the regulators are not themselves members of the regulated profession or
industry—is not true for most lawyer regulation. Accordingly, this Article proposes applying
federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase
access to affordable legal services while preserving professionalism and client protection.

View Article ×
Renee Newman Knake 93 Wash. L. Rev. 1293

Contesting Police Credibility


View Abstract

Contesting Police Credibility

October 01, 2018 | 93 Wash. L. Rev. 1339

Abstract:  Criminal cases often amount to credibility contests between two actors: the
complainant, testifying for the government, and the defendant. In theory, the defendant’s
opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant has a constitutional right to a fair trial. But when the government’s witnesses are police officers, the converse occurs. Although the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining and utilizing evidence about officers that would call into question their credibility as witnesses.

The thesis of this Article is that, when it comes to helping a jury assess the credibility of
defendants and police officer witnesses, the law gets it backward. On the one hand, our data
collection systems and evidentiary doctrines allow the government nearly instant access to a
defendant’s entire history of encounters with the law, disincentivize defendants from testifying at their own trials, and give prosecutors myriad means to introduce evidence suggesting that the defendant is, based on prior misdeeds, likely to be guilty of the charged crime. On the other hand, the law perversely prevents defendants from casting doubt on the credibility of police officers, by making police misconduct records confidential and, in many cases, inaccessible to defendants. This unequal distribution of access and ability to utilize information creates trials where the jury is exposed to extensive evidence suggesting the accused is an incredible, and likely guilty party, but remains naïve to the many reasons to question the credibility of the police officer.

This Article, while grounded in a rich tradition of scholarly literature critiquing the many
ways the American criminal system venerates law enforcement and represses people of color,
provides a novel contribution to that literature by exposing the particularly problematic
imbalances that result when the government is not only prosecuting a defendant, but also acting as his primary accuser. After thoroughly analyzing the doctrines that enable these inequities, this Article provides recommendations for reform in three areas: (1) the lack of thorough recordkeeping and accurate data pertaining to police misconduct; (2) the laws that prevent defense counsel from accessing and utilizing police misconduct records that do exist; and (3) the evidentiary rules that permit governments to access and utilize bad acts and character evidence against defendants.

View Article ×
Rachel Moran 93 Wash. L. Rev. 1339

The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role


View Abstract

The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role

October 01, 2018 | 93 Wash. L. Rev. 1397

Abstract:  Within Eighth Amendment doctrine, legislators are arbiters of contemporary
values. The United States Supreme Court looks closely to state and federal death penalty
legislation to determine whether a given punishment is out of keeping with “evolving standards
of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both
ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative
debates preceding the recent passage of bills abolishing the death penalty in Connecticut,
Illinois, and Nebraska. We categorized all statements according to their position on the death
penalty, their subject matter, and any references they made to the courts and Constitution. We also collected basic facts about the legislators, including about political party, race, education, and profession. We present our quantitative and qualitative findings here.

Building upon these findings, we critically examine the Court’s use of legislation as an
“objective indicator” of “evolving standards of decency.” We identify disconnects between
legislative outcomes and community “standards of decency,” and we analyze legislators’
understanding of their constitutional significance and why their level of self-awareness may
matter. Finally, we consider how legislative debates—rather than outcomes alone—might
provide insights into contemporary values. In particular, the strong concern we observed over
wrongful execution may support more robust Eighth Amendment protections for those
claiming actual innocence.

View Article ×
David Niven & Aliza Plener Cover 93 Wash. L. Rev. 1397

Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review


View Abstract

Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review

October 01, 2018 | 93 Wash. L. Rev. 1449

Abstract:  In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint
Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay
an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in
exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its
tribal immunity in any administrative proceeding challenging the patents. Two outcomes were
expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights
to manufacture and market a highly profitable drug while insulating the underlying patents
from an unforgiving administrative inter partes review (IPR). Second, SRMT would embark
on a new business venture of collecting and relicensing patents from third parties, effectively
“renting out” its sovereign immunity. The response from lawmakers, the judiciary, the
executive branch, and the public at large was acrimonious. The agreement was branded in
public forums as a “sham” and the Patent Trial and Appeal Board held the patents assigned to
SRMT were not shielded by tribal immunity. This Comment argues the Allergan-Mohawk
agreement is a legally effective means of avoiding IPR. Absent an express waiver of tribal
immunity by Congress or the tribe itself, a tribe may not be subject to a private claim. This rule
extends to IPR proceedings which closely parallel private suits. Therefore, contracts like the
Allergan-Mohawk agreement effectively shield patents from IPR.

View Article ×
Seth W. R. Brickey 93 Wash. L. Rev. 1449

Flight and Federalism: Federal Preemption of State and Local Drone Laws


View Abstract

Flight and Federalism: Federal Preemption of State and Local Drone Laws

October 01, 2018 | 93 Wash. L. Rev. 1495

Abstract:  Small, unmanned aircraft referred to as “drones” are becoming increasingly
common in the skies above the United States. Their increasing ubiquity has been driven by the wide variety of industries and tasks to which they can be applied, but it has also drawn the attention of government. Where Amazon.com sees the potential for packages delivered in
thirty minutes or less, governments see crowded skies and clumsy pilots, to name only two
potential risks associated with the widespread integration of drones into the national airspace. To that end, just as Amazon.com has ambitiously made use of the technology, state and local governments have begun to actively regulate drone use. The City of Chicago, for example, enacted an ordinance essentially banning drones within city limits.

A major legal hurdle potentially stands in the way of those state and local efforts: The
federal government has also regulated the commercial use of drones. The Federal Aviation
Administration (FAA), guided by congressional direction to safely accelerate the process of
integrating drones into the national airspace, promulgated comprehensive regulations
governing commercial drone use. This overlap with state and local laws leads to issues of
preemption. The doctrine of preemption reflects the principle that, in the United States, where a (valid, constitutional) federal law conflicts with a state or local law, the federal law
supersedes its counterparts.

This comment explores the issue of federal preemption of state and local drone laws. It
concludes—based on a survey of preemption law, useful analogues from other areas of law,
and first-of-its-kind drone preemption litigation—that restrictive drone laws like Chicago’s are
preempted by the FAA regulations. Yet all is not lost for the state or local government wishing to have a say in matters of drone regulation. As this comment explains, there are strong arguments that state and local governments can regulate certain uses of drones, particularly in light of a doctrine known as the presumption against preemption. To that end, some state and local laws are clearly safe from preemption challenges. Others are just as clearly preempted. Finally, there is a category of state and local laws that fall somewhere in between those two extremes, for which the outcome of future preemption challenges is unclear.

View Article ×
Nicholas Cody 93 Wash. L. Rev. 1495

A Stute Observation: Re-Examining Washington’s Enforcement of Workplace Safety Regulations


View Abstract

A Stute Observation: Re-Examining Washington’s Enforcement of Workplace Safety Regulations

October 01, 2018 | 92 Wash. L. Rev. 1605

Abstract:  In 1973, the Washington State Legislature enacted the Washington Industrial
Safety and Health Act. The stated purpose of the Act was to ensure safe working conditions
for the working men and women of Washington. Seventeen years later, the Washington State
Supreme Court held that general contractors are per se liable for the WISHA violations of their
subcontractors. However, the Washington Department of Labor and Industries has adopted a
policy of citing general contractors for subcontractor violations only in limited circumstances.
This Comment first outlines the development of worker safety laws in Washington, then
examines the effects of the Department’s policy at both the administrative and appellate level.
Finally, this Comment argues that the Department’s policy is contrary to the governing law
and should be altered to be in line with the law, avoid potential confusion on appeal, and fulfill
the purpose of WISHA: to protect Washington’s workers.

View Article ×
Ben Moore 92 Wash. L. Rev. 1605

Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute


View Abstract

Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute

October 01, 2018 | 93 Wash. L. Rev. 1563

Abstract:  This Comment examines the constitutionality of Washington’s cyberstalking
statute, RCW 9.61.260, and its treatment of anonymous online speech. While the statute was
drafted to ensure that women are free from domestic and gender-based violence, the statute
as currently written and enforced infringes on the constitutionally protected right to free
speech. There has only been one action, Moriwaki v. Rynearson, enforcing the provision of the statute related to anonymous speech. The court ultimately overturned the stalking protection order, which the plaintiff brought to halt political speech, on First Amendment grounds. While the Moriwaki court concluded that the stalking protection order there was an unconstitutional application of the law, RCW 9.61.260 is likely facially invalid under the First Amendment and incapable of withstanding strict scrutiny analysis. Faced with these issues, Washington has several options. Washington courts could narrowly construct RCW 9.61.260(1)(b). In so doing, courts could differentiate between anonymous speech that is ordinarily protected by the First Amendment and speech that is unprotected. The courts could also overturn the entire statute as unconstitutional on First Amendment grounds. This Comment argues that the legislature should return to the drawing board and redraft RCW 9.61.260 so that it can pass muster under the First Amendment. This Comment also proposes model legislation on which the Washington legislature could base a new law. Regardless of what Washington decides to do, the importance of preventing violence against women and preserving free speech online are too great to sacrifice to sloppy legislative drafting.

View Article ×
Sarah E. Smith 93 Wash. L. Rev. 1563