Washington Law Review

Current Issue

Volume 93, Number 342 - October 2018

Title Author Citation

The Return of the Technical McDonnell Douglas Paradigm


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The Return of the Technical McDonnell Douglas Paradigm

January 01, 2019 | 94 Wash. L. Rev. 967

Abstract: For many anti-discrimination plaintiffs, the McDonnell Douglas paradigm will determine the success or failure of their claims. And yet, for decades, most lower courts have applied a technical version of McDonnell Douglas—under which plaintiffs invariably lose. Thus, instead of asking the factual question of whether the defendant’s action was “because of” protected class status, the lower courts rely on a host of technical rules to dismiss even factually strong anti-discrimination claims.  

This is not the first time the lower courts have attempted to adopt a technical version of the McDonnell Douglas paradigm. In the 1970s and 1980s, the lower courts applied similar technical rules—but to the disadvantage of discrimination defendants, not plaintiffs. Across a series of cases, the United States Supreme Court rejected these technical rules, reasoning that it is ultimately the factual question of discrimination that must control. Thus, the Supreme Court has already determined that it is the factual question of discrimination—rather than any technical rules engrafted by the lower courts on McDonnell Douglas—that must be dispositive in a discrimination case.

This history should have profound implications for the practice of anti-discrimination law today. The lower courts’ technical approach to the McDonnell Douglas paradigm represents one of the most significant and pervasive obstacles to contemporary anti-discrimination enforcement. And yet, it is plainly inconsistent with the Supreme Court’s existing case law. Remembering this history—and recognizing its significance—offers one of the most realistic opportunities for systematic anti-discrimination reform today.

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Katie Eyer 94 Wash. L. Rev. 967

Copyright's Market Gibberish


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Copyright's Market Gibberish

January 01, 2019 | 94 Wash. L. Rev. 1019

Abstract:  There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests—a practice this Article names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts.

In a wide range of copyright cases, plaintiffs use economic and market-based theories to achieve goals that have little do with economic rights. If plaintiffs can plausibly tell a story of market harm, courts will often respond by manipulating economic rhetoric to provide the desired outcomes. For example, courts have protected celebrities’ rights to permanently suppress wedding photos and sex tapes, under the theory that they have the “right to change their mind” and someday reap profits from these materials. When courts engage in market gibberish, they obscure the diverse range of economic, emotional, and cultural interests at stake within copyright law. This Article argues that, instead of dogmatically hewing to economic incentives and market rhetoric, courts should engage in a more transparent examination of the interests actually at stake in copyright disputes.

This Article makes three primary contributions. First, it provides the first comprehensive account of market gibberish and shows, through detailed analysis of case law, that litigants have long used market gibberish to advance their noneconomic goals. Second, it shows how the prevalence of market gibberish erodes copyright theory and practice. Rather than rigorously police market interests—as many scholars have proposed—courts should more explicitly engage with the diverse motivations for asserting copyright infringement. An interest-transparent approach would shed light on the complex normative work copyright is already doing and better distinguish between legitimate and abusive copyright assertions. Finally, this Article shows how market gibberish contributes to inequality under copyright law. A plaintiff’s ability to tell a story about potential markets is often limited to the most powerful rightsholders—famous artists, celebrities, and corporate creators—and not to the wide range of vulnerable and lesser-known individuals who are turning to copyright to stop the viral spread of their words, images, or voices.

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Andrew Gilden 94 Wash. L. Rev. 1019

No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes


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No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes

January 01, 2019 | 94 Wash. L. Rev. 1085

Abstract:  Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the costs of centralizing FRAND disputes are high. Rather, absent other agreement between the parties, FRAND disputes should be resolved through the ordinary territorial structures of patent law, and attempts to simplify these disputes should focus on procedural and substantive coordination across jurisdictions.

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Eli Greenbaum 94 Wash. L. Rev. 1085

Public or Private Venture Capital?


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Public or Private Venture Capital?

January 01, 2019 | 94 Wash. L. Rev. 1137

Abstract: The United States has an unparalleled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible.

From a law-and-economics perspective, startup investing is incredibly risky. Information asymmetry and agency costs abound. In the United States, angels and VCs successfully mitigate these problems through private ordering and informal means. Countries without the robust private venture capital system that exists in the United States have attempted to fund startups publicly by creating junior stock exchanges where startup stocks can be traded— similar to the New York Stock Exchange, but on a smaller scale. These exchanges have largely failed, however, in part because they have relied on mandatory disclosure and other tools better suited to mitigating investment risk in established public companies.

The relative success of the United States in supplying private venture capital makes its recent infatuation with crowdfunding curious. Fortunately, while crowdfunding was originally designed to resemble public venture capital, with “funding portals” acting as the junior stock exchanges, its final implementing rules took important steps back toward the private venture capital model.

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Darian M. Ibrahim 94 Wash. L. Rev. 1137

Permissive Certificates: Collectors of Art as Collectors of Permissions


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Permissive Certificates: Collectors of Art as Collectors of Permissions

January 01, 2019 | 94 Wash. L. Rev. 1175

Abstract:  Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But rarely, if ever, have they been approached as legal instruments.

This Article accordingly fills that gap by construing Permissive Certificates through the complex but potent array of legal rights that they define. It argues that Permissive Certificates are not unitary instruments, but in fact an amalgamation of two distinct legal structures. They couple narrow retrospective warranties on the one hand with prospective copyright licenses and rights of source association on the other. Critically, as with all copyright and source-based permissions, they are conditioned on the owner/licensee complying with use guidelines. Material variations from such terms place the owner/licensee outside the scope of the license, or otherwise in breach, and at risk of claims of infringement by the artist.

This approach to Permissive Certificates yields two important insights. First, they harbor an unappreciated power as a tool for artist control, particularly in jurisdictions such as the U.S. where moral rights remain relatively weak. Second, and more broadly, as art becomes increasingly more dematerialized, digitized, and duplicable, and ever more legalized in turn, Permissive Certificates will grow more and more into the locus of value for such works. Over the long run, museums and other collectors of fine art will become collectors, not of objects, but of permissions. The aura of the artist’s hand will be that of a signature and not of a brushstroke.

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Peter J. Karol 94 Wash. L. Rev. 1175

Why Settle for Less? Improving Settlement Conferences in Federal Court


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Why Settle for Less? Improving Settlement Conferences in Federal Court

January 01, 2019 | 94 Wash. L. Rev. 1233

Abstract:  Most cases settle before trial. Recent studies show that approximately 1% of cases filed in federal court go to trial. Alternative dispute resolution processes have been fully incorporated into federal court, and settlement conferences have long been used by federal court judges to control their dockets. Do they provide litigants with both substantive and procedural justice in the vast majority of cases that do not proceed to trial? Lawyers have raised concerns about judicial coercion to settle cases at settlement conferences, the loss of confidentiality that occurs when parties raise claims of bad faith participation at the conference, and that litigation over the level of participation at settlement conference threatens the premise that settlement conferences help reduce court congestion.

This Article analyzes the dynamics of the settlement conference to show how common intuitive biases and other factors may cause each of the participants—the parties, insurers, lawyers, and judge—to incorrectly evaluate a case and whether it should settle. The Article reviews recent studies of judicial reasoning and decisionmaking, case law and empirical studies to reach several conclusions. The first is that trial judges should not hold a settlement conference in their own cases. Second, courts should adopt an objective standard for assessing good faith participation at a settlement conference. Third, courts should not award sanctions against a party for failing to bargain sufficiently at a settlement conference or for failing to have a representative present with full settlement authority. The Article concludes by suggesting several procedural reforms, aimed at improving the actual and perceived fairness of the proceeding.

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William P. Lynch 94 Wash. L. Rev. 1233

The Promises and Perils of Using Big Data to Regulate Nonprofits


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The Promises and Perils of Using Big Data to Regulate Nonprofits

January 01, 2019 | 94 Wash. L. Rev. 1281

Abstract:  For the optimist, government use of “Big Data” involves the careful collection of information from numerous sources. The government then engages in expert analysis of those data to reveal previously undiscovered patterns. Discovering patterns revolutionizes the regulation of criminal behavior, education, health care, and many other areas. For the pessimist, government use of Big Data involves the haphazard seizure of information to generate massive databases. Those databases render privacy an illusion and result in arbitrary and discriminatory computer-generated decisions. The reality is, of course, more complicated. On one hand, government use of Big Data may lead to greater efficiency, effectiveness, and transparency; on the other hand, such use risks inaccurate conclusions, invasions of privacy, unintended discrimination, and increased government power. Until recently, these were theoretical issues for nonprofits because federal and state regulators did not use Big Data to oversee them. But nonprofits can no longer ignore these issues, as the primary federal regulator is now emphasizing “data-driven” methods to guide its audit selection process, and state regulators are moving forward with plans to create a single, online portal to collect required filings. In addition, regulators are making much of the data they collect available in machine-readable form to researchers, journalists, and other members of the public. The question now is whether regulators, researchers, and nonprofits can learn from the Big Data experiences of other agencies and private actors to optimize the use of Big Data with respect to nonprofits. This Article explores the steps that nonprofit regulators have taken toward using Big Data techniques to enhance their ability to oversee the nonprofit sector. It then draws on the Big Data experiences of government regulators and private actors in other areas to identify the potential promises and perils of this approach to regulatory oversight of nonprofits. Finally, it recommends specific steps regulators and others should take to ensure that the promises are achieved and the perils avoided.

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Lloyd Hitoshi Mayer 94 Wash. L. Rev. 1281

Contract Interpretation with Corpus Linguistics


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Contract Interpretation with Corpus Linguistics

January 01, 2019 | 94 Wash. L. Rev. 1337

Abstract:  Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on the contracting parties and invite strategic behavior.      

Corpus linguistics offers a middle way. Corpus linguistics draws on evidence of language use from large, coded, electronic collections of natural language—language used in natural settings, rather than language elicited through interviews or surveys. These may include collections of texts from newspapers, magazines, academic articles, or transcribed conversations. These collections of texts are referred to as corpora (the plural of corpus). Linguistic corpora can be designed to model the linguistic conventions of a wide variety of speech communities, industries, or linguistic registers. Because large, sophisticated linguistic corpora are freely available, language evidence from linguistic corpora offers a comparatively low-cost alternative to the vast quantity of extrinsic evidence permitted by contextualist interpretive approaches. Moreover, by evaluating corpus evidence, judges and lawyers can create a more accurate, evidence-based picture of contractual meaning than can be found in the formalist judge’s linguistic intuition or in a general-use dictionary.      

Moreover, corpora can provide objective evidence of the linguistic conventions of the communities that draft and are governed by the agreements judges and lawyers are called upon to interpret. Corpus evidence can give content to otherwise vague legal concepts and provide linguistic evidence to aid in the evaluation of claims about the meaning (or ambiguity) of a contractual text. Below I outline how corpus linguistic methods may be applied to the interpretation of contracts.

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Stephen C. Mouritsen 94 Wash. L. Rev. 1337

Replacing Geographic Lines with Conceptual Lines: A Proposal for Limited Authorization of Multijurisdictional Practice of Law


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Replacing Geographic Lines with Conceptual Lines: A Proposal for Limited Authorization of Multijurisdictional Practice of Law

January 01, 2019 | 94 Wash. L. Rev. 1419

Abstract:  State regulations have created substantial barriers to lawyers who engage in multijurisdictional practice of law. Applying the amorphous concept of practice of law to modern society results in many lawyers who knowingly or unknowingly practice in multiple states—including states where they are not admitted to the bar. Yet there is no simple means by which a lawyer can obtain permission to engage in multijurisdictional practice in the United States.

This Comment proposes a way for Congress to authorize multijurisdictional practice for some aspects of legal practice without completely displacing the role of state bars. Drawing on analogies to the division of legal practice in the United Kingdom and other common law countries, this Comment argues that the inherent difference between in-court and out-of-court practice—epitomized in the barrister and solicitor roles—defines the proper dividing line between what Congress should and should not preempt. This Comment thus proposes a scheme of decentralized authorization for multijurisdictional practice in a solicitor-like capacity, while reserving decisions about in-court representation to the states.

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Patrick Medley 94 Wash. L. Rev. 1419

Don't Say Depression: Specific Diagnosable Injuries Under the Washington Law Against Discrimination's Privilege Statute


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Don't Say Depression: Specific Diagnosable Injuries Under the Washington Law Against Discrimination's Privilege Statute

January 01, 2019 | 94 Wash. L. Rev. 1451

Abstract:  In 2018, the Washington State Legislature amended the Washington Law Against Discrimination (WLAD) to prevent automatic waivers of physician- and psychologist-patient privileges when plaintiffs claim non-economic, emotional distress damages. This legislation appears to be in response to the Washington Court of Appeals’ decision Lodis v. Corbis Holding, Inc., which held that a plaintiff waives their patient- and psychologist-privilege merely by alleging emotional distress damages. The new law, RCW 49.60.510, prevents waiver unless the plaintiff alleges a specific diagnosable injury, relies on the testimony of a healthcare or psychiatric expert, or claims a “failure to accommodate a disability or discrimination on the basis of a disability.” RCW 49.60.510 does not specify what constitutes a specific diagnosable injury, but the legislative history suggests the Legislature was attempting to shift WLAD’s privilege law towards a standard similar to one used in federal courts. This Comment explores the federal court’s psychotherapist-patient privilege waiver and argues that federal courts’ privilege jurisprudence can provide some clarity to the ambiguity of “specific diagnosable” injuries. It further argues that courts’ failure to consider this legislative goal risks a return to the Lodis-era waiver standard.

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Jack Miller 94 Wash. L. Rev. 1451

Rethinking Emergency Legislation in Washington State

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Rethinking Emergency Legislation in Washington State

January 01, 2019 | 94 Wash. L. Rev. 1477

Abstract: The people’s right to referendum in Washington State is substantively limited in only one way: the people cannot block through referendum “such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” This emergency exception to the referendum power must be explicitly invoked by the Washington State Legislature in what is called an “emergency clause.” Washington courts are willing to review emergency clauses to determine if a bill is, in fact, “necessary for the immediate preservation of the public peace, health or safety.” However, the courts have failed to articulate a coherent rule for deciding whether a bill meets that standard. As a result, the Legislature routinely exempts from referendum bills that do not address traditional emergencies—a practice that has been widely criticized.

To strike the right balance between the people’s referendum right and the Legislature’s need to effectuate certain laws immediately, the courts should reexamine the purpose of the emergency exception. This Comment proposes a standard for evaluating whether a bill addresses an emergency. To meet that standard, the bill must accomplish a public purpose that would be substantially destroyed if the Legislature was unable to act immediately. This standard would allow the Legislature to effectively address circumstances that fail to resemble traditional emergencies but nevertheless require immediate action. This standard is also consistent with a key policy reason behind Washington’s emergency exception: preventing a small minority (4% of voters required for a referendum) from undermining the ability of the majority’s elected representatives to fulfill their legislative duty.

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Eva Sharf 94 Wash. L. Rev. 1477

Reversing the Reliance Revolution in Contract


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Reversing the Reliance Revolution in Contract

December 01, 2018 | 93 Wash. L. Rev. 1609

Abstract: During the past century, leading American academics have attempted to rewrite in radically altered form the theoretical foundation of liability in contract. In derogation of the historical bases for contractual liability in Anglo-American law, namely voluntary mutual exchange and “formal” contract, these intellectual revolutionaries desire to impose strict liability in contract on the basis of unilateral, unbargained-for reliance.

The centerpiece of this revisionist effort has been the novel and artificial doctrine of “promissory estoppel,” first advanced by Williston and Corbin in the Restatement of the Law of Contracts published in 1932. The invention of this doctrine has been accompanied by related conceptual developments across the spectrum of academic scholarship and other articulations of contract law.

On the basis of the relevant history, this Article argues that the historical and proper foundations of liability in contract are mutual exchange and formal contract rather than naked, unilateral reliance on informal promise in the absence of exchange. A return to the historical foundations of contract would repudiate the century-long effort from within academia artificially to alter this field of law.

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Eric Alden 93 Wash. L. Rev. 1609

Stop and Frisk in a Concealed Carry World


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Stop and Frisk in a Concealed Carry World

December 01, 2018 | 93 Wash. L. Rev. 1675

Abstract: This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that “public gun possession” equals “criminal activity.”

Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes three contributions to the existing literature. First, it corrects the oft-repeated misconception that the U.S. Supreme Court’s recent Second Amendment jurisprudence has altered the Fourth Amendment’s reasonable suspicion standard. Second, it articulates the need for a “gun possession plus” reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. The Article concludes with a recognition of the risks presented by a proposed “automatic frisk” regime, particularly for over-policed communities of color. In doing so, it suggests law enforcement would be well served to consider community policing alternatives to stop and frisk that respect the rights of firearms carriers in marginalized communities while protecting officers on the beat.

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Shawn E. Fields 93 Wash. L. Rev. 1675

Danger Ahead: Risk Assessment and the Future of Bail Reform


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Danger Ahead: Risk Assessment and the Future of Bail Reform

December 01, 2018 | 93 Wash. L. Rev. 1725

Abstract: In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people—particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests.

This Article highlights three underlying challenges that have yet to receive the attention they require. First, today’s risk assessment tools lead to what we term “zombie predictions.” That is, predictive models trained on data from older bail regimes are blind to the risk-reducing benefits of recent bail reforms. This may cause predictions that systematically overestimate risk. Second, “decision-making frameworks” that mediate the court system’s use of risk estimates embody crucial moral judgments, yet currently escape appropriate public scrutiny. Third, in the long-term, these tools risk giving an imprimatur of scientific objectivity to ill-defined concepts of “dangerousness,” may entrench the Supreme Court’s historically recent blessing of preventive detention for dangerousness, and could pave the way for an increase in preventive detention.

Pretrial risk assessment instruments, as they are currently built and used, cannot safely be assumed to support reformist goals of reducing incarceration and addressing racial and poverty-based inequities. This Article contends that system stakeholders who share those goals are best off focusing their reformist energies on other steps that can more directly promote decarceral changes and greater equity in pretrial justice. Where pretrial risk assessments remain in use, this Article proposes two vital steps that should be seen as minimally necessary to address the challenges surfaced. First, where they choose to embrace risk assessment, jurisdictions must carefully define what they wish to predict, gather and use local, recent data, and continuously update and calibrate any model on which they choose to rely, investing in a robust data infrastructure where necessary to meet these goals. Second, instruments and frameworks must be subject to strong, inclusive governance.

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John Logan Koepke & David G. Robinson 93 Wash. L. Rev. 1725

Finality, Appealability, and the Scope of Interlocutory Review


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Finality, Appealability, and the Scope of Interlocutory Review

December 01, 2018 | 93 Wash. L. Rev. 1809

Abstract: Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be “final.” Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.”

This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those before-the-end-of-proceedings appeals. Though related, these contexts are distinct, involve unique interests, and raise unique issues. Successful reform must fill all of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term.

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Bryan Lammon 93 Wash. L. Rev. 1809

Market Segmentation vs. Subsidization: Clean Energy Credits and the Commerce Clause's Economic Wisdom


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Market Segmentation vs. Subsidization: Clean Energy Credits and the Commerce Clause's Economic Wisdom

December 01, 2018 | 93 Wash. L. Rev. 1853

Abstract: The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for better differentiation between constitutionally questionable market segmentation and constitutionally sound subsidization policies—in clean energy policy and beyond.

Many observers view the dormant Commerce Clause doctrine as a major threat to state-led efforts to combat climate change. Pushing back against widespread scholarly skepticism and recent precedent, this Article makes the case that state policymakers can use clean energy credits to simultaneously promote global environmental and local economic causes without running afoul of the dormant Commerce Clause. Critics and courts alike fail to recognize that not all energy credit programs are created equal.

When states use energy credits as compliance instruments for their renewable portfolio standards—requirements that electric utilities source a percentage of their electricity sales from solar, wind, and other renewables—they partition power markets into renewable and nonrenewable segments. Such segmentation policies cannot follow state boundaries or other geographically defined lines without violating the dormant Commerce Clause. A few pioneering states have begun to use energy credits as a vehicle for subsidies that operate independently of sourcing requirements. Unlike their market segmentation counterparts, these subsidization policies raise no concerns under the dormant Commerce Clause even when subsidies are available only to in-state firms.

The Commerce Clause’s “preference” for subsidization over segmentation policies may seem counterintuitive. Both have, after all, the potential to disrupt interstate commerce and competition. Yet, two centuries of dormant Commerce Clause jurisprudence reflect a simple economic truth: segmentation prevents competition altogether, while subsidization can have a pro-competitive effect, such as when used to correct for carbon externalities and other market failures.

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Felix Mormann 93 Wash. L. Rev. 1853

The Multiple Justifications of Occupational Licensing


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The Multiple Justifications of Occupational Licensing

December 01, 2018 | 93 Wash. L. Rev. 1903

Abstract: Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational licensing to significantly limit when and how licensing can be used through their interpretation of antitrust law and the First and Fourteenth Amendments of the Constitution.

This Article takes a step back to argue that these critiques of occupational licensing, and the federal jurisprudence based on them, embrace a narrow view of the role of licensing in the economy that is grounded in both an embrace of economic libertarianism and an antagonism towards professional self-regulation. While this view generally recognizes licensing as justified to protect the public from harm in limited situations, it disregards a range of other values that occupational licensing has historically been viewed to promote. This Article draws on social science literature to categorize these other justifications as (1) fostering communities of knowledge and competence; (2) developing relationships of trust; and (3) buffering producers from the market.

The Article uses specific examples from the judiciary’s occupational licensing jurisprudence to show how acknowledging this broader set of justifications should constrain the courts from imposing a narrow view of licensing’s role in the economy. It ends by suggesting that if the federal government is to shape occupational licensing policy, Congress and the Executive are better placed than the judiciary to take the lead.

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Nick Robinson 93 Wash. L. Rev. 1903

Privacy Localism


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Privacy Localism

December 01, 2018 | 93 Wash. L. Rev. 1961

Abstract: Privacy law scholarship often focuses on domain-specific federal privacy laws and state efforts to broaden them. This Article provides the first comprehensive analysis of privacy regulation at the local level (which it dubs “privacy localism”), using recently enacted privacy laws in Seattle and New York City as principal examples. Further, this Article attributes the rise of privacy localism to a combination of federal and state legislative failures and three emerging urban trends: the role of local police in federal counterterrorism efforts; smart city and open data initiatives; and demands for local police reform in the wake of widely reported abusive police practices.

Both Seattle and New York City have enacted or proposed (1) a local surveillance ordinance regulating the purchase and use of surveillance equipment and technology by city departments, including the police, and (2) a law regulating city departments’ collection, use, disclosure, and retention of personal data. In adopting these local laws, both cities have sought to fill two significant gaps in federal and state privacy laws: the public surveillance gap, which refers to the weak constitutional and statutory protections against government surveillance in public places, and the fair information practices gap, which refers to the inapplicability of the federal and state privacy laws to government records held by local government agencies.

Filling these gaps is a significant accomplishment and one that exhibits all of the values typically associated with federalism such as diversity, participation, experimentation, responsiveness, and accountability. This Article distinguishes federalism and localism and shows why privacy localism should prevail against the threat of federal and—more importantly—state preemption. This Article concludes by suggesting that privacy localism has the potential to help shape emerging privacy norms for an increasingly urban future, inspire more robust regulation at the federal and state levels, and inject more democratic control into city deployments of privacy-invasive technologies.

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Ira S. Rubinstein 93 Wash. L. Rev. 1961

Privacy's Double Standards


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Privacy's Double Standards

December 01, 2018 | 93 Wash. L. Rev. 2051

Abstract: Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort cases and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the U.S. Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state actors) make the substantive rule of decision and enforce the law. Under this theory, the First Amendment has been used to limit the scope of privacy and defamation torts as infringing on the privacy invader’s speech rights. But, as this Article argues, if state action applies to tort law, other constitutional provisions should also bear on the substance of common law torts.

This Article highlights the selective application of constitutional law to tort law. It uses the unequal effects of prevailing public disclosure tort doctrine to explore whether constitutional equality principles can be used to reform, or nudge, the currently weak protections provided by blackletter privacy tort law. By so doing, this Article also foregrounds a doctrinally-sound basis for a broader discussion of how constitutional liberty, due process, and equality norms might influence tort law across a variety of substantive contexts.

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Scott Skinner-Thompson 93 Wash. L. Rev. 2051

To Withdraw or Not to Withdraw: Reviewability of an Agency’s Withdrawn Proposed Rule


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To Withdraw or Not to Withdraw: Reviewability of an Agency’s Withdrawn Proposed Rule

December 01, 2018 | 93 Wash. L. Rev. 2107

Abstract: Federal agencies propose thousands of regulations in any given year. The Administrative Procedure Act requires such agencies to follow certain procedures when enacting rules and regulations. However, when an agency proposes a new rule that is purely discretionary—not mandated by Congress—it may withdraw the proposed rule at any point before the rule is finalized. In October 2017, the Centers of Medicare and Medicaid (CMS) withdrew a proposed rule that, if enacted, would have required long-term care facilities to recognize out of state same-sex marriages as a condition of Medicare and Medicaid participation. In its formal withdrawal published in the Federal Register, CMS reasoned that the proposed rule was no longer necessary due to the U.S. Supreme Court decision in Obergefell v. Hodges.

This Comment examines the circumstances under which a district court can review an agency’s withdrawal of a discretionary proposed rule. For nearly forty years, the D.C. Circuit has held that withdrawn discretionary rules may be ripe for judicial review if two requirements are met: (1) the withdrawal signals final agency action and (2) the agency created an adequate and precise record pursuant to informal notice-and-comment rulemaking. However, some commentators, notably former Ninth Circuit Judge Alex Kozinski, argue that an agency’s decision to withdraw a proposed rule is wholly discretionary and thus unreviewable in light of the U.S. Supreme Court decision Heckler v. Chaney.

This Comment concludes by arguing that judicial review of withdrawn discretionary proposed rules is necessary to prevent arbitrary and capricious agency action. Moreover, despite Judge Kozinski’s concerns, arbitrary and capricious review supplies a reviewing court with the critical tools to review withdrawn discretionary rules.

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Jane E. Carmody 93 Wash. L. Rev. 2107

Remaining Silent in Indian Country: Self-Incrimination and Grants of Immunity for Tribal Court Defendants


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Remaining Silent in Indian Country: Self-Incrimination and Grants of Immunity for Tribal Court Defendants

December 01, 2018 | 93 Wash. L. Rev. 2139

Abstract: A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes within the boundaries of the United States. In response, Congress exercised its plenary power and passed the Indian Civil Rights Act (ICRA). Under federal law, ICRA extended many, but not all, protections afforded under the Bill of Rights to tribal defendants without any required action from the tribes; many of the provisions are verbatim from the Constitution’s amendments. However, the complicated distribution of jurisdiction amongst sovereigns, as well as the tribal authority to create and implement unique constitutions and systems of justice, calls into question the standard by which to evaluate violations of the privilege against self-incrimination in tribal court. Furthermore, rare examples exist in which a court of any jurisdiction has considered or extended the mutually binding nature of grants of immunity and the use of testimony compelled by a separate jurisdiction to include tribal courts. This Comment suggests that violations of ICRA’s protections against self-incrimination be evaluated under a Fifth Amendment standard, utilizing U.S. Supreme Court precedent. This approach ensures a predictable analysis that is consistent with the legislative intent of ICRA and minimizes potential complications upon federal habeas review. This Comment further suggests that the universal application of Fifth Amendment precedent is a prerequisite for mutual and binding recognition of tribal, state, and federal grants of immunity. Mutual recognition places tribal courts on equal footing with state and federal courts. Further, a defendant facing prosecution in two or more courts exercising concurrent jurisdiction benefits when courts extend and recognize binding grants of immunity. Lastly, when grants of immunity apply in each jurisdiction, tribal courts and communities are empowered to pursue avenues of justice unique to tribal traditions and cultures.

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Philipp C. Kunze 93 Wash. L. Rev. 2139

Unrealistic Expectations: The Federal Government’s Unachievable Mandate for State Cannabis Regulation

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Unrealistic Expectations: The Federal Government’s Unachievable Mandate for State Cannabis Regulation

December 01, 2018 | 93 Wash. L. Rev. 2175

Abstract: The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act’s classification of cannabis as a Schedule I substance. In 2015, Nebraska and Oklahoma unsuccessfully petitioned the U.S. Supreme Court for permission to sue Colorado because its cannabis was leaking outside the state’s borders. Nebraska and Oklahoma insisted that Colorado’s legalization scheme compromises the drug policies of Nebraska, Oklahoma, and other neighboring states. Because the U.S. Department of Justice rescinded its previous guidance and Congress continues to stay silent regarding the tension between state laws, the judicial branch has a new opportunity to validate the concerns of Nebraska and Oklahoma. Therefore, it is even more important for states that legalize cannabis to prevent cannabis from leaking outside their borders. To prevent diversion of cannabis outside its state’s borders, the Washington State Legislature has created a regulatory licensing system. But despite Washington’s tightly regulated system, the federal government remains concerned about the legalized cannabis industry. Neither Washington nor Colorado has successfully prevented all cannabis diversion. The Cole Memorandum articulated an unrealistic standard for states’ reduction in diversion: total elimination. At the very least, Washington and Colorado’s regulatory procedures should be compared to those of other states without legalization. Ultimately, the federal government should conclusively determine whether states are able to legalize cannabis without the overhanging threat of federal intervention on the basis of diversion. The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act’s classification of cannabis as a Schedule I substance. In 2015, Nebraska and Oklahoma unsuccessfully petitioned the U.S. Supreme Court for permission to sue Colorado because its cannabis was leaking outside the state’s borders. Nebraska and Oklahoma insisted that Colorado’s legalization scheme compromises the drug policies of Nebraska, Oklahoma, and other neighboring states. Because the U.S. Department of Justice rescinded its previous guidance and Congress continues to stay silent regarding the tension between state laws, the judicial branch has a new opportunity to validate the concerns of Nebraska and Oklahoma. Therefore, it is even more important for states that legalize cannabis to prevent cannabis from leaking outside their borders. To prevent diversion of cannabis outside its state’s borders, the Washington State Legislature has created a regulatory licensing system. But despite Washington’s tightly regulated system, the federal government remains concerned about the legalized cannabis industry.

Neither Washington nor Colorado has successfully prevented all cannabis diversion. The Cole Memorandum articulated an unrealistic standard for states’ reduction in diversion: total elimination. At the very least, Washington and Colorado’s regulatory procedures should be compared to those of other states without legalization. Ultimately, the federal government should conclusively determine whether states are able to legalize cannabis without the overhanging threat of federal intervention on the basis of diversion.

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Rebecca Sweeney 93 Wash. L. Rev. 2175

Head in the Clouds, Head in the Sand: Federal Failure to Update Guidance on Computer Transactions in an International Context


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Head in the Clouds, Head in the Sand: Federal Failure to Update Guidance on Computer Transactions in an International Context

December 01, 2018 | 93 Wash. L. Rev. 2213

Abstract: The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or entity avoids activities that constitute a trade or business within the United States under the Internal Revenue Code, precluding taxable effectively connected income, even significant revenue streams may escape taxation by the United States. With the rise of new models of digital transactions, companies may structure their business operations to limit or avoid U.S. taxation. Twenty years ago, the Department of the Treasury developed regulations governing computer transactions. Since then, new mechanisms for digital deliveries have developed, including the cloud computing products. These products—software-as-a-service (SaaS), platform-as-a-service (PaaS), and infrastructure-as-a-service (IaaS)—have sprouted, rooted, and blossomed into an expansive and profitable industry. This Comment summarizes the landscape of cloud taxation, reviews different ways to frame cloud transactions under current law, and advocates for new federal action to ensure income does not escape taxation by virtue of the underlying transaction’s technological form.


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Logan S. Weaver 93 Wash. L. Rev. 2213

Some Kind of Hearing Officer


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Some Kind of Hearing Officer

June 01, 2019 | 94 Wash. L. Rev. 515

Abstract: In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts and agencies should respond when the Due Process Clause required—in the U.S. Supreme Court’s exceedingly vague words—“some kind of hearing.” That phrase led to the familiar Mathews v. Eldridge balancing test, under which courts weigh three factors to determine how much process or formality is due. But the U.S. Supreme Court has never applied Mathews to another, often ignored, facet of due process: the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not only “some kind of hearing” but also some kind of hearing officer. Scholars, Congress, and even federal agencies have largely ignored so-called “informal” agency hearings and the hearing officers who preside over them, despite their large number and significance. Unlike well-known administrative law judges, the lack of uniform treatment of and data on these federal hearing officers renders it difficult to monitor, compare, and improve the systemic design and fairness of informal hearings. To better understand this “hidden judiciary,” this Article first reports, based on rare access to agencies, the most comprehensive empirical data assembled on those adjudicators’ independence. The data confirm the significant variety of federal hearing officers and the lack of uniform impartiality protections. To improve data collection, transparency, and salience of these hearing officers, this Article proposes a disclosure framework—appropriated from consumer contexts—to detect, compare, and improve prophylaxes to protect hearing officers from improper agency influence.

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Kent H. Barnett 94 Wash. L. Rev. 515

Savage Inequalities

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Savage Inequalities

June 30, 2019 | 94 Wash. L. Rev. 583

Abstract: Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest. These attacks have gained strength from a modern movement challenging many claims by disadvantaged groups as unfair special rights. In American Indian law and policy, however, such attacks have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination—all were justified, in part, as necessary to achieve individual Indian equality. The results of these policies, justified as equalizing the savage, are now recognized as savage themselves, impoverishing Native people and denying them fundamental rights. Many, including some tribal advocates, respond to equality-based attacks by arguing that sovereignty, cultural difference, or some other value trumps the value of equality in Indian law and policy. This Article, in contrast, reveals the egalitarian roots of demands for tribal rights. It argues that such rights are in fact demands to recognize the equality of tribes as governments, so the proper comparison is to rights of other sovereign groups. This governmental equality yardstick, moreover, has an even older historical pedigree and has repeatedly triumphed when U.S. policy bent toward justice. The governmental rubric does not lead to an easy metric for equality claims—tribal nations and their people are far too entwined with non-Native governments and communities for that. Additional principles, including individual equality, the history and context of modern disputes, and the impact of particular measures on the most vulnerable, are relevant as well. To show how these principles apply, the Article concludes by examining modern conflicts, including those over the Indian Child Welfare Act, Cherokee freedmen citizenship, and off-reservation fishing rights.

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Bethany R. Berger 94 Wash. L. Rev. 583

Backdoor Balancing


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Backdoor Balancing

June 30, 2019 | 94 Wash. L. Rev. 645

Abstract: The U.S. Supreme Court has employed various mechanisms to blunt the systemic impact of legal change. The Warren Court balanced the interests advanced by new rules against the disruption of their retroactive application and frequently limited new rules to prospective effect. The Rehnquist Court decisively rejected this approach in the mid-1990s and committed itself to full adjudicative retroactivity as to pending cases. This Article argues that, although the Court slammed a door, it subsequently opened a window. The Court has spent the intervening decades devising ostensibly independent and unrelated doctrines to mitigate disruption. Despite the Rehnquist Court’s insistence that these doctrines do not relate to retroactivity, they reflect the same balance and, in almost every case, yield the same results as Warren-era balancing. This Article makes the descriptive case that the balancing of interests has survived intact and the normative case that finding a mechanism for softening the blow of legal change promotes respect for existing rules and the Court’s institutional legitimacy. Finally, this Article explores how the Court’s sub silentio balancing is likely to play out in the next big retroactivity challenge, the Appointments Clause context post-Lucia v. SEC.

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Elizabeth Earle Beske 94 Wash. L. Rev. 645

Global Rate Setting: A Solution for Standards-Essential Patents?

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Global Rate Setting: A Solution for Standards-Essential Patents?

June 30, 2019 | 94 Wash. L. Rev. 701

Abstract: The commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable, and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out arise with increasing frequency, spurring competition authorities to investigate and intervene in private standardsetting. And litigation regarding compliance with FRAND commitments has led courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different methodologies and doctrinal approaches. The issues affecting the FRAND licensing system can be summarized as deficiencies in transparency, consistency, and comprehensiveness. Together, these issues reduce the overall fairness and efficiency of the system and result in excess administrative and transactional costs. This Article lays out a roadmap for the establishment of a global FRAND rate-setting tribunal that promotes the tripartite goals of transparency, consistency, and comprehensiveness by determining the aggregate value of patents covering a particular standard and allocating that value among individual patents and patent holders. This tribunal is modeled on the U.S. Copyright Royalty Board and similar rate-setting agencies, though it is envisioned not as a governmental body but as an international non-governmental organization. Such a tribunal should bring greater predictability and stability to the technology development ecosystem while reducing inefficient litigation.

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Jorge L. Contreras 94 Wash. L. Rev. 701

Regulating Wage Theft

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Regulating Wage Theft

June 30, 2019 | 94 Wash. L. Rev. 759

 Abstract: Wage theft costs workers billions of dollars each year. During a time when the federal government is rolling back workers’ rights, it is essential to consider how state and local laws can address the problem. As this Article explains, the pernicious practice of wage theft seemingly continues unabated, despite a recent wave of state and local laws to curtail it. This Article provides the first comprehensive analysis of state and local anti-wage theft laws. Through a compilation of 141 state and local anti-wage theft laws enacted over the past decade, this Article offers an original typology of the most common anti-wage theft regulatory strategies. An evaluation of these laws shows that they are unlikely to meaningfully reduce wage theft. Specifically, the typology reveals that many of the most popular anti-wage theft strategies involve authorizing worker complaints, creating or enhancing penalties, or mandating employers to disclose information to workers about their wage-related rights. Lessons learned about these conventional regulatory strategies from other contexts raise serious questions about whether these state and local laws can be successful. Rather than concede defeat, this Article contends that there are useful insights to be drawn from the typology and analysis. It concludes by recognizing promising regulatory innovations, identifying new collaborative approaches to enhance agency enforcement, and looking beyond regulation to nongovernmental strategies.

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Jennifer J. Lee & Annie Smith 94 Wash. L. Rev. 759

Effective Corporate Compliance: A Holistic Approach for the SEC and the DOJ

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Effective Corporate Compliance: A Holistic Approach for the SEC and the DOJ

January 01, 2019 | 94 Wash. L. Rev. 851

AbstractToday, most global corporations claim to have effective compliance programs that ensure and monitor their compliance with all state, federal, and even international requirements. A growing body of literature and regulatory activity indicates that truly effective compliance programs must incorporate all of the “Seven Elements of an Effective Compliance Program” contained in the Federal Sentencing Guidelines. Despite these Guidelines and growing industry and regulatory interest in effective compliance, noncompliance continues, and many companies run into trouble when noncompliance brings their actions to the attention of the SEC and the DOJ. In turn, the SEC and the DOJ struggle to encourage effective compliance programs within these noncompliant companies and in the wider corporate community. This Comment proposes that the SEC and the DOJ should take a more integrated and holistic approach to compliance by regularly and publicly incorporating all of the elements in the Guidelines into deferred and non-prosecution agreements and penalty settlements. The agencies should also consider greater use of independent monitorships to ensure effective compliance.

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Serena Hamann 94 Wash. L. Rev. 851

Respecting the Right to Research: Proxy Consent and Subject Assent in Alzheimer's Disease Clinical Trials

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Respecting the Right to Research: Proxy Consent and Subject Assent in Alzheimer's Disease Clinical Trials

June 30, 2019 | 94 Wash. L. Rev. 887

Abstract: Alzheimer’s Disease is the sixth-leading cause of death in the United States and the only disease in the top ten causes of death with no prevention, treatment, or cure. To find any meaningful treatment or cure, researchers must conduct clinical trials on subjects with Alzheimer’s Disease. Subjects with Alzheimer’s Disease, however, generally lack legal capacity to consent to research due to diminished cognition. While informed consent standards for individuals who lack capacity are well settled in the medical treatment context, such standards are much less clear in the research context. A patchwork of legal and regulatory guidance addresses this issue, but no uniform framework exists. In January 2017, the federal government responded to the problem of unclear proxy consent standards by updating the Common Rule, which regulates human subjects research. Attempting to clarify prior vagueness, the regulation extended existing laws and policies on proxy consent in clinical treatment to the research context. While this was a welcome change, state laws and institutional policies remain inconsistent. Therefore, states should affirmatively enact legislation to ensure inclusion for all participants in medical research. Practically, this may be as simple as amending existing health care surrogate decisionmaking statutes—allowing proxy consent and substituted judgment in the research context explicitly. Additionally, federal regulators, Institutional Review Boards, and researchers should consider establishing an assent and dissent standard for research subjects who lack capacity, specifically in Alzheimer’s Disease clinical trials.

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Mikaela L.J. Louie 94 Wash. L. Rev. 887

Invalid Harms: Improper Use of the Administrative Procedure Act's Good Cause Exemption

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Invalid Harms: Improper Use of the Administrative Procedure Act's Good Cause Exemption

June 30, 2019 | 94 Wash. L. Rev. 927

Abstract: On October 13, 2017, the U.S. Department of Health & Human Services, U.S. Department of Treasury, and U.S. Department of Labor published two nearly identical interim final rules in the Federal Register. To do so, the agencies invoked the Administrative Procedure Act’s good cause exemption, permitting the rules to bypass prepromulgation notice and comment rulemaking requirements. The interim final rules allowed employers and insurers that provide group healthcare coverage under the Affordable Care Act to seek constitutional and moral exemptions—specifically for contraceptives and other preventive health services coverage. Using the two 2017 interim final rules as an illustration, this Comment considers whether constitutional and moral objections should qualify as valid reasons for administrative agencies to invoke the Administrative Procedure Act’s good cause exemption, ultimately arguing they should not. If valid, this use of constitutional and moral objections would broaden administrative agencies’ ability to bypass notice and comment rulemaking procedures, thereby delegitimizing the rulemaking processes and undercutting opportunities for public participation.

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Miriam R. Stiefel 94 Wash. L. Rev. 927

Be Careful What You Wish for: Private Political Parties, Public Primaries, and State Constitutional Restrictions


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Be Careful What You Wish for: Private Political Parties, Public Primaries, and State Constitutional Restrictions

June 30, 2019 | 94 Wash. L. Rev. 823

Abstract: Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This Essay focuses on the history of Washington State’s “direct primary” and “blanket primary” systems, the repeated lawsuits challenging them, and the freedom of association doctrine that propelled the blanket primary’s 2004 demise. It then recounts the blowback from Washington voters, who enacted a “top two” primary system that sidelined the political parties by sending the two highest vote-getters to the general election regardless of political affiliation. It asserts that remaining aspects of Washington’s election system might violate the State’s own constitution, and that things could get worse than ever for the parties, perhaps disrupting precinct officer elections and even the state’s presidential primary. How did the political parties wind up at odds with their own voters, with an outcome opposite to what they intended? This Essay suggests that the answer lies in a web of conflicts: between litigation and political strategies; between the federal and state constitutions; and between the First Amendment’s protections of freedom of association, the late nineteenth century populist constitutional ban on public assistance to private entities, and the early twentieth century progressive goal of forcing private political parties to open their processes to the voting public. It concludes that long-term litigation strategies to address political issues can fail to achieve their objectives when those lawsuits overlook historical policy choices and ignore popular sentiments entrenched in the national and state constitutions.

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Hugh D. Spitzer 94 Wash. L. Rev. 823

Preserving VAWA’s “Nonreport” Option: A Call for the Proper Storage of Anonymous/Unreported Rape Kits


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Preserving VAWA’s “Nonreport” Option: A Call for the Proper Storage of Anonymous/Unreported Rape Kits

January 01, 2018 | 93 Wash. L. Rev. 1089

Abstract: The Violence Against Women Act (VAWA) requires participating states and the District of Columbia to pay for medical forensic exams for victims of rape and sexual assault, including the collection of evidence using “rape kits,” whether or not the victim chooses to pursue criminal charges. The chief statutory purpose of the requirement is to preserve evidence in the interest of justice without pressuring a traumatized victim to decide on the spot whether to activate a criminal investigation. Rape kits collected without an accompanying police report are called “anonymous rape kits,” “unreported rape kits,” or “Jane Doe rape kits.” This is because they are typically assigned an anonymous tracking number rather than the victim’s name for privacy reasons, before being sealed and stored for evidentiary integrity. Beyond requiring their subsidization, VAWA is silent on anonymous rape kit preservation, leaving methods of storage to the discretion of each state, many of which defer to local jurisdictions. In states that defer, inconsistent storage practices can lead to the loss or destruction of the kits. These outcomes undercut the statutory purpose of VAWA’s “nonreport” option and waste public funds. Using Washington State as a prototype, this Comment argues that states that do not regulate anonymous rape kit storage should remedy this problem legislatively. State legislatures should pass comprehensive statutes that assign maintenance responsibility to a relevant state agency, provide funding for costs associated with evidence collection and storage, ensure the preservation of evidence through the relevant statute of limitations, and require that victims be kept informed of their rights. Thoughtful regulation will ensure the proper preservation of critical evidence and facilitate the empowerment of sexual assault victims, and in those respects reinforce VAWA’s nonreport option.

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Gavin Keene 93 Wash. L. Rev. 1089