Washington Law Review

Current Issue

Volume 97, Number 1 - 2022

Title Author Citation

Race and Washington’s Criminal Justice System: 2021 Report to the Washington Supreme Court


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Race and Washington’s Criminal Justice System: 2021 Report to the Washington Supreme Court

March 01, 2022 | 97 Wash. L. Rev. 1

Editor's Note: As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections on the development of our field. In the spirit of this tradition, we present this report in all three of our publications. This joint publication represents a unified recognition of the paramount importance of identifying and addressing racial disparities in our state’s justice system. As future legal professionals, we are proud to support this work and to amplify voices seeking to promote fairness and justice.

Sincerely,

Kenneth Nelson Editor-in-Chief Washington Law Review

Carly C. Roberts Editor-in-Chief Gonzaga Law Review

Jaclyn T. Sakamoto Editor-in-Chief Seattle University Law Review

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Task Force 2.0 97 Wash. L. Rev. 1

How Should Inheritance Law Remediate Inequality?


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How Should Inheritance Law Remediate Inequality?

March 01, 2022 | 97 Wash. L. Rev. 61

Abstract: This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, this Article argues that T&E should promote mean regression of the wealth distribution curve over time. This can be accomplished by loosening spending in ultrawealthy households and spurring savings and investment in low-income households.

T&E scholars are tackling inequality with greater urgency than ever before, yet basic questions remain. For instance, what do we mean by “inequality”? How can we remediate inequality? And what goals should we advance in redressing inequality? This Article contributes to these conversations by articulating a comprehensive framework for progressive inheritance law that redresses long-term inequality.

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Felix B. Chang 97 Wash. L. Rev. 61

The New Bailments

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The New Bailments

March 01, 2022 | 97 Wash. L. Rev. 97

Abstract: The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care and may be liable if they fail to return the property. The parties can use contracts to customize the relationship but not to disclaim the duty of care entirely.

Tracing the law of bailment relationships from its ancient roots to the present, this Article argues that cloud storage should be understood as potentially creating a bailment relationship. Though the kind of stored property has changed over time, the parties’ expectations and incentives have not: people entrusting their property to others expect that it will be kept reasonably safe. Although cloud storage is not new, courts have had scant opportunity to analyze the obligations of cloud storage providers. The best explanation for this lack of case law is the decline of litigation, the rise of arbitration, federal diversity jurisdiction, and the ever-growing dominance of contracts, not that bailment has no role in cloud storage.

Recognizing cloud storage as a potential bailment would have significant implications. Most immediately, it would suggest that some provisions in many cloud storage services’ contracts are unenforceable or enforceable only after fact-intensive judicial review. A hand-collected dataset of fifty-eight cloud storage contracts reveals that most have included general disclaimers for any liability for lost data that are inconsistent with the duty of care that is the foundation of the law of bailment. In addition, understanding cloud storage as a bailment would have important implications for both the law of consumer protection and Fourth Amendment protections.

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Danielle D’Onfro 97 Wash. L. Rev. 97

Qualified Sovereignty


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Qualified Sovereignty

March 01, 2022 | 97 Wash. L. Rev. 155

Abstract: Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required to qualify before it can derive the immunity enjoyed by its sovereign partner. This Article proposes that a private contractor be entitled to such “qualified sovereignty” contingent on satisfying three conditions: (1) it was acting as the government’s agent, (2) it complied with any guidelines established by the government, and (3) it was reasonable for the contractor to believe that its conduct would not violate rights protected by law. Adopting scaffolding from two embattled doctrinal constructs—derivative sovereign immunity and qualified immunity—qualified sovereignty balances the rights of victims to recover for harms with protection for private entities.

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Kate Sablosky Elengold & Jonathan D. Glater 97 Wash. L. Rev. 155

The Dignitary Confrontation Clause


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The Dignitary Confrontation Clause

March 01, 2022 | 97 Wash. L. Rev. 207

Abstract: For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving statements to law enforcement officers and written affidavits of crime lab technicians. In these cases, for apparently pragmatic reasons, various pluralities of the Court appear to have redefined “testimonial” to mean, at least in part, “potentially unreliable,” thereby contradicting the goal of Crawford.

To help courts resolve this confusion, this Article proposes an overlooked, residual constitutional value, distinct from reliability, implicated in cases where defendants cannot confront witnesses who testify against them. Integrating historical and narrative analysis of the confrontation right’s origins in Anglo-American law with the psychological literature on guilt and deceit, it argues that a criminal defendant has a relational interest in asserting their moral presence against a potentially deceitful witness. It further argues that this interest harmonizes with the contemporary function of dignity in criminal constitutional jurisprudence. The Article concludes that criminal defendants have a distinct dignitary interest in confronting witnesses against them. It urges courts to untangle the contradictory web of Crawford and its progeny by considering the dignitary dimensions of the Confrontation Clause.

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Erin Sheley 97 Wash. L. Rev. 207

Queer and Convincing: Reviewing Freedom of Religion and LGBTQ+ Protections Post-Fulton v. City of Philadelphia

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Queer and Convincing: Reviewing Freedom of Religion and LGBTQ+ Protections Post-Fulton v. City of Philadelphia

March 01, 2022 | 97 Wash. L. Rev. 265

Abstract: Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these competing discriminations. This Comment addresses which standard of review federal courts ought to apply when considering whether LGBTQ+-protective laws violate the Free Exercise Clause of the First Amendment.

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Arianna Nord 97 Wash. L. Rev. 265

Let Us Not Be Intimidated: Past and Present Applications of Section 11(b) of The Voting Rights Act


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Let Us Not Be Intimidated: Past and Present Applications of Section 11(b) of The Voting Rights Act

March 01, 2022 | 97 Wash. L. Rev. 301

Abstract: As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when they arrive. For example, thousands of Black and Brown voters were targeted in 2020 with misleading robocalls stating that the government used vote-by-mail records to track down old warrants, that credit card companies used vote-by-mail records to collect outstanding debts, and that the Centers for Disease Control (CDC) used vote-by-mail records to track people for mandatory COVID-19 vaccinations.

This Comment argues that section 11(b) of the Voting Rights Act has been underutilized since it was enacted in 1965. Section 11(b), which was intended to protect Black voters from racialized intimidation, provides a civil cause of action against state or private actors who “intimidate, threaten, or coerce any person for voting or attempting to vote.” There are few published decisions interpreting section 11(b), and executive enforcement of this provision is insufficient.

Because voters of color are typical targets of intimidating conduct, a more robust enforcement of section 11(b) is essential to promoting equitable access to civic participation. This Comment therefore begins with an exploration of racialized voter intimidation in the United States. It goes on to investigate why section 11(b) is underdeveloped, and finally, it proposes that litigants should be aware of special considerations if they choose to bring section 11(b) actions.

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Carly E. Zipper 97 Wash. L. Rev. 301