Customary International Law in United States Courts
December 20, 2017 | 92 Wash. L. Rev. 1641
Abstract: Over the past two decades, the status of customary international law in U.S. courts has been the subject of vigorous debate. On the one hand, proponents of the “modernist” position contend that rules of customary international law are presumptively rules of federal law, which apply directly in U.S. courts and preempt inconsistent state law even in the absence of federal legislative or executive authorization. On the other hand, the “revisionists” argue that, in the absence of congressional legislation or a U.S. treaty, rules of customary international law are generally not matters of federal law, and will therefore generally be governed by state law. This Article argues for an approach that rejects central elements of both the modernist and revisionist positions, while also adopting other aspects of both positions. The Article contends that the text, structure, and objectives of the Constitution, and the weight of judicial authority, require treating all rules of customary international law as rules of federal law, but that such rules will be directly applicable in U.S. courts only when the federal political branches have expressly or impliedly provided for judicial application of a particular rule.
|Gary Born||92 Wash. L. Rev. 1641|
Welfare and Federalism’s Peril
December 20, 2017 | 92 Wash. L. Rev. 1721
Abstract: Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF)—the TANF block grant—guaranteed the program’s deterioration. The Article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved programs. The Article then explores two potential paths forward for TANF as either a devolutionary outlier in social policy or as a harbinger of what is to come from recent Congressional proposals to block grant Medicaid and SNAP (food stamps). Public interest lawyers rightly fear that TANF could be the cutting edge of a newly devolved American safety net. The Article concludes by considering what the cautionary tale of TANF means for scholars of federalism and anti-poverty advocates.View Article ×
|Andrew Hammond||92 Wash. L. Rev. 1721|
The New Sister-State Sovereign Immunity
December 20, 2017 | 92 Wash. L. Rev. 1771
Michael H. Hoffheimer
Abstract: The Article reviews the constitutional status of sister-state sovereign immunity. It argues that the parity requirement announced in Franchise Tax Board v. Hyatt (2016) is a temporary compromise that is supported by neither the purposes of the Full Faith and Credit Clause nor by cases cited by the Court. It further argues that parity is bad policy because parity overprotects states for acts they commit beyond their borders and under protects the interests of forum states in regulating conduct within their territorial jurisdiction.
|Michael H. Hoffheimer||92 Wash. L. Rev. 1771|
Orwell’s 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test
December 20, 2017 | 92 Wash. L. Rev. 1819
Abstract: This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.
|Margaret Hu||92 Wash. L. Rev. 1819|
Safeguarding Washington’s Trade Secrets: Protecting Businesses from Public Records Requests
December 20, 2017 | 92 Wash. L. Rev. 1905
Abstract: Lawmakers constantly balance competing interests. They decide where to draw lines so that societal goals are accomplished without ignoring the needs of those who will be affected by their choices. The Washington State Legislature is now in the process of addressing the line between government transparency and the protection of private companies’ trade secrets. Companies who provide technology to the federal government are susceptible to losing their trade secrets through a public records request. The Washington State Legislature is currently reviewing the trade secret exception to the Public Records Act to ensure it is continuing to protect companies from losing their trade secrets. This Comment will both address the dangers companies face and evaluate the current proposals to change the law.View Article ×
|John Delaney||92 Wash. L. Rev. 1905|
The Helicopter State: Misuse of Parens Patriae Unconstitutionally Precludes Individual and Class Claims
December 20, 2017 | 92 Wash. L. Rev. 1955
Gabrielle J. Hanna
Abstract: The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions are subject to myriad stringent procedural rules that help protect class members, members who “opt out,” and even defendants who find themselves liable for often sky-high damages. On the other hand, parens patriae suits are largely unregulated and free from requirements that plaintiffs seeking class certification must meet. Part of this distinction seems to stem from an assumption that attorneys general are adequate representatives of their citizens’ interests. The relative ease of bringing a parens patriae suit, compared to the increasingly onerous requirements of private class actions, has led state attorneys general to bring claims under parens patriae standing more frequently in the twenty-first century. But the lack of procedural protections in parens patriae suits means that state citizens affected by a parens patriae suit may potentially be precluded via res judicata from bringing valid, individual or class claims that have already been brought by the state on their behalf. Furthermore, it is not clear that parens patriae suits are an adequate, let alone superior, method of litigating citizens’ claims. Settlements reached between states and defendants pose additional adequacy problems due to being unregulated and determined by a political representative, who may have interests distinct and separate from the interests of individual citizens.
|Gabrielle J. Hanna||92 Wash. L. Rev. 1955|
Nationwide Permit 12 and Domestic Pipelines: An Incompatible Relationship?
December 20, 2017 | 92 Wash. L. Rev. 1991
Alexander S. Arkfeld
Abstract: As climate change’s momentum becomes increasingly more difficult to quell, environmentalists are litigating to stop oil pipeline expansion. Litigation over two recently completed oil pipelines—the Flanagan South and the Gulf Coast—illustrates the legal battle environmentalists face. Given the outcome of those cases, it may seem that environmentalists face insurmountable judicial precedent. But they are not out of options quite yet.
|Alexander S. Arkfeld||92 Wash. L. Rev. 1991|
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