Current Issue
Volume 93, Number 342 - October 2018
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The Return of the Technical McDonnell Douglas Paradigm The Return of the Technical McDonnell Douglas Paradigm January 01, 2019 | 94 Wash. L. Rev. 967 Katie Eyer 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. |
Katie Eyer | 94 Wash. L. Rev. 967 |
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Copyright's Market Gibberish January 01, 2019 | 94 Wash. L. Rev. 1019 Andrew Gilden 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. |
Andrew Gilden | 94 Wash. L. Rev. 1019 |
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No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes January 01, 2019 | 94 Wash. L. Rev. 1085 Eli Greenbaum 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. View Article × |
Eli Greenbaum | 94 Wash. L. Rev. 1085 |
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Public or Private Venture Capital? Public or Private Venture Capital? January 01, 2019 | 94 Wash. L. Rev. 1137 Darian M. Ibrahim 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. |
Darian M. Ibrahim | 94 Wash. L. Rev. 1137 |
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Permissive Certificates: Collectors of Art as Collectors of Permissions Permissive Certificates: Collectors of Art as Collectors of Permissions January 01, 2019 | 94 Wash. L. Rev. 1175 Peter J. Karol 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. |
Peter J. Karol | 94 Wash. L. Rev. 1175 |
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Why Settle for Less? Improving Settlement Conferences in Federal Court Why Settle for Less? Improving Settlement Conferences in Federal Court January 01, 2019 | 94 Wash. L. Rev. 1233 William P. Lynch 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. |
William P. Lynch | 94 Wash. L. Rev. 1233 |
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The Promises and Perils of Using Big Data to Regulate Nonprofits The Promises and Perils of Using Big Data to Regulate Nonprofits January 01, 2019 | 94 Wash. L. Rev. 1281 Lloyd Hitoshi Mayer 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. View Article × |
Lloyd Hitoshi Mayer | 94 Wash. L. Rev. 1281 |
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Contract Interpretation with Corpus Linguistics Contract Interpretation with Corpus Linguistics January 01, 2019 | 94 Wash. L. Rev. 1337 Stephen C. Mouritsen 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. |
Stephen C. Mouritsen | 94 Wash. L. Rev. 1337 |
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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 Patrick Medley 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. |
Patrick Medley | 94 Wash. L. Rev. 1419 |
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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 Jack Miller 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. View Article × |
Jack Miller | 94 Wash. L. Rev. 1451 |
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Rethinking Emergency Legislation in Washington State Rethinking Emergency Legislation in Washington StateJanuary 01, 2019 | 94 Wash. L. Rev. 1477 Eva Sharf 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. |
Eva Sharf | 94 Wash. L. Rev. 1477 |
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Reversing the Reliance Revolution in Contract Reversing the Reliance Revolution in Contract December 01, 2018 | 93 Wash. L. Rev. 1609 Eric Alden 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. |
Eric Alden | 93 Wash. L. Rev. 1609 |
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Stop and Frisk in a Concealed Carry World Stop and Frisk in a Concealed Carry World December 01, 2018 | 93 Wash. L. Rev. 1675 Shawn E. Fields 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.” |
Shawn E. Fields | 93 Wash. L. Rev. 1675 |
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Danger Ahead: Risk Assessment and the Future of Bail Reform Danger Ahead: Risk Assessment and the Future of Bail Reform December 01, 2018 | 93 Wash. L. Rev. 1725 John Logan Koepke & David G. Robinson 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. |
John Logan Koepke & David G. Robinson | 93 Wash. L. Rev. 1725 |
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Finality, Appealability, and the Scope of Interlocutory Review Finality, Appealability, and the Scope of Interlocutory Review December 01, 2018 | 93 Wash. L. Rev. 1809 Bryan Lammon 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.” |
Bryan Lammon | 93 Wash. L. Rev. 1809 |
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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 Felix Mormann 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. |
Felix Mormann | 93 Wash. L. Rev. 1853 |
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The Multiple Justifications of Occupational Licensing The Multiple Justifications of Occupational Licensing December 01, 2018 | 93 Wash. L. Rev. 1903 Nick Robinson 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. |
Nick Robinson | 93 Wash. L. Rev. 1903 |
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Privacy Localism December 01, 2018 | 93 Wash. L. Rev. 1961 Ira S. Rubinstein 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. |
Ira S. Rubinstein | 93 Wash. L. Rev. 1961 |
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Privacy's Double Standards December 01, 2018 | 93 Wash. L. Rev. 2051 Scott Skinner-Thompson 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. |
Scott Skinner-Thompson | 93 Wash. L. Rev. 2051 |
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To Withdraw or Not to Withdraw: Reviewability of an Agency’s Withdrawn Proposed Rule To Withdraw or Not to Withdraw: Reviewability of an Agency’s Withdrawn Proposed Rule December 01, 2018 | 93 Wash. L. Rev. 2107 Jane E. Carmody 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. |
Jane E. Carmody | 93 Wash. L. Rev. 2107 |
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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 Philipp C. Kunze 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. View Article × |
Philipp C. Kunze | 93 Wash. L. Rev. 2139 |
Unrealistic Expectations: The Federal Government’s Unachievable Mandate for State Cannabis RegulationDecember 01, 2018 | 93 Wash. L. Rev. 2175 Rebecca Sweeney 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. |
Rebecca Sweeney | 93 Wash. L. Rev. 2175 |
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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 Logan S. Weaver 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. |
Logan S. Weaver | 93 Wash. L. Rev. 2213 |
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Some Kind of Hearing Officer June 01, 2019 | 94 Wash. L. Rev. 515 Kent H. Barnett 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. View Article × |
Kent H. Barnett | 94 Wash. L. Rev. 515 |
Savage InequalitiesJune 30, 2019 | 94 Wash. L. Rev. 583 Bethany R. Berger 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. View Article × |
Bethany R. Berger | 94 Wash. L. Rev. 583 |
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Backdoor Balancing June 30, 2019 | 94 Wash. L. Rev. 645 Elizabeth Earle Beske 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. View Article × |
Elizabeth Earle Beske | 94 Wash. L. Rev. 645 |
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Global Rate Setting: A Solution for Standards-Essential Patents? Global Rate Setting: A Solution for Standards-Essential Patents?June 30, 2019 | 94 Wash. L. Rev. 701 Jorge L. Contreras 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. View Article × |
Jorge L. Contreras | 94 Wash. L. Rev. 701 |
Regulating Wage TheftJune 30, 2019 | 94 Wash. L. Rev. 759 Jennifer J. Lee & Annie Smith 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. View Article × |
Jennifer J. Lee & Annie Smith | 94 Wash. L. Rev. 759 |
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Effective Corporate Compliance: A Holistic Approach for the SEC and the DOJ Effective Corporate Compliance: A Holistic Approach for the SEC and the DOJJanuary 01, 2019 | 94 Wash. L. Rev. 851 Serena Hamann Abstract: Today, 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. View Article × |
Serena Hamann | 94 Wash. L. Rev. 851 |
Respecting the Right to Research: Proxy Consent and Subject Assent in Alzheimer's Disease Clinical TrialsJune 30, 2019 | 94 Wash. L. Rev. 887 Mikaela L.J. Louie 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. View Article × |
Mikaela L.J. Louie | 94 Wash. L. Rev. 887 |
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Invalid Harms: Improper Use of the Administrative Procedure Act's Good Cause Exemption Invalid Harms: Improper Use of the Administrative Procedure Act's Good Cause ExemptionJune 30, 2019 | 94 Wash. L. Rev. 927 Miriam R. Stiefel 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. View Article × |
Miriam R. Stiefel | 94 Wash. L. Rev. 927 |
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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 Hugh D. Spitzer 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. View Article × |
Hugh D. Spitzer | 94 Wash. L. Rev. 823 |
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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 Gavin Keene 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. View Article × |
Gavin Keene | 93 Wash. L. Rev. 1089 |
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