Washington Law Review

Current Issue

Volume 93, Number 1 - March 2018

Title Author Citation

The Marital Wealth Gap


View Abstract

The Marital Wealth Gap

March 27, 2018 | 93 Wash. L. Rev. 1

Abstract: Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.

How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap.

View Article ×
Erez Aloni 93 Wash. L. Rev. 1

Snake Oil Speech


View Abstract

Snake Oil Speech

March 27, 2018 | 93 Wash. L. Rev. 73

Abstract: Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech.

View Article ×
Jane R. Bambauer 93 Wash. L. Rev. 73

Exposing Secret Searches: A First Amendment Right of Access to Electronic Surveillance Orders


View Abstract

Exposing Secret Searches: A First Amendment Right of Access to Electronic Surveillance Orders

March 27, 2018 | 93 Wash. L. Rev. 145

Abstract: Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy—in the form of gag orders, local judicial rules, and even clerical filing and docketing practices—is built into the laws that regulate electronic surveillance.

This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure shows that, far from requiring secrecy, searches and seizures were historically executed in public, with neighbors watching and even participating. Secrecy surrounding searches and seizures is a relatively new development, linked to the emergence of communications technology and laws governing the acquisition of customer records from third-party service providers. Transparency would play an especially positive role in this context because electronic surveillance is otherwise virtually insulated from public scrutiny: basic information about the scope of the government’s authority to conduct surveillance and data regarding the frequency with which it does so is largely unavailable to the public. Sealing also obscures the government’s interpretations of its own legal authority, as well as information about law enforcement technologies.

These twin arguments—historical and logical—establish a basis for courts to recognize that a First Amendment right of access attaches to surveillance materials after an investigation has concluded. While the government may have a compelling need for secrecy of surveillance materials in ongoing investigations, there is no government interest sufficiently compelling to warrant the sealing of tens of thousands of judicial documents long after an investigation has concluded.

View Article ×
Hannah Bloch-Wehba 93 Wash. L. Rev. 145

Privacy, Press, and the Right to be Forgotten in the United States


View Abstract

Privacy, Press, and the Right to be Forgotten in the United States

March 27, 2018 | 93 Wash. L. Rev. 201

Abstract: When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value of older truthful information and decide at times that privacy should win out. In other words, they recognize that an individual whose embarrassing past has been revealed by another can sue for invasion of privacy in the United States, even when the historic information was once public. This Article explores Right to Be Forgotten-sensibilities in United States jurisprudence and suggests that such a Right has a foundation in historical case law and present-day statutes. It argues that the legal conception of privacy in one’s past may have some limited practical and important purposes but warns that any Right to Be Forgotten must be cabined effectively by presuming newsworthiness—a word defined similarly in law and journalism—in order to protect significant and competing First Amendment interests at a time when people in high places have vowed to curb press freedoms.

View Article ×
Amy Gajda 93 Wash. L. Rev. 201

Forum-Selection Provisions in Corporate “Contracts”


View Abstract

Forum-Selection Provisions in Corporate “Contracts”

March 27, 2018 | 93 Wash. L. Rev. 265

Abstract: We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive judicial forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions.

We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contract doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for the hybrid nature—public and private—of such terms. Specifically, the state’s role should render forum-terms invalid that oust federal courts of diversity jurisdiction. Likewise, because of a lack of any meaningful consent, a forum-term that applies to a claim that is neither derivative nor brought by a shareholder should not be enforced. In other situations, courts should consider, before enforcing a corporate forum-term, whether adjudicating the entire dispute in the designated forum would be efficient (e.g., whether the court has subject-matter jurisdiction over all claims) or fair (e.g., whether the procedural rules, including the limitations period, of the designated forum are substantially more advantageous to the parties who decided to adopt the forum-term than those of the state that supplies the substantive law). In some cases, efficiency and fairness factors will argue against the forum-term’s enforcement.

On the other hand, several factors in other corporate settings and, in particular, in mergerrelated representative suits, may tip the balance towards enforcement. First, the fact that “consent” by class members to these suits is also limited counter-balances concerns about the limited consent shareholders may have given to the forum-term. Second, a forum-term reduces the ability to avoid the crack-down on “disclosure-only” settlements—that provide broad releases, but entail minimal recovery—that Delaware courts have embarked on.

Finally, we consider the implications of corporate forum-terms to debates about interstate competition for incorporation and for corporate litigation. A state may adopt forum-term legislation to enhance its attractiveness as a corporate domicile or to protect shareholders in domestic corporations. However, legislation that discriminates against out-of-state courts and seeks to centralize corporate litigation in the state’s own courts for the benefit of its local bar may be vulnerable to non-enforcement in the courts of sister states.

View Article ×
Helen Hershkoff & Marcel Kahan 93 Wash. L. Rev. 265

Fifty Shades of Gray Infrastructure: Land Use and the Failure to Create Resilient Cities


View Abstract

Fifty Shades of Gray Infrastructure: Land Use and the Failure to Create Resilient Cities

March 27, 2018 | 93 Wash. L. Rev. 317

Abstract: Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel “gray infrastructure.” Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control, remove, and manipulate ecosystems. Left untouched, these ecosystems often provide critical services that strengthen a community’s resilience to disasters and slow changes. This Article describes the current state of land use laws and their focus on human-engineered, gray infrastructure developed as part of private projects. It explores how that infrastructure is reducing community resilience to change. By creatively combining human-engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure erected by private parties, this Article describes how land use laws can enhance community resilience. The Article concludes with several examples where land use laws are relied upon to help build costeffective, adaptive infrastructure to create more resilient communities.

View Article ×
Jonathan Rosenbloom 93 Wash. L. Rev. 317

Courts as Gatekeepers: The Case for Minimal Deference to Agency Interpretations of the Common Law


View Abstract

Courts as Gatekeepers: The Case for Minimal Deference to Agency Interpretations of the Common Law

March 27, 2018 | 93 Wash. L. Rev. 385

Abstract: In Flytenow, Inc. v. FAA, the D.C. Circuit encountered an important, yet unresolved, question: how much deference should a court give an agency for its interpretation of a common-law term used in a statute or regulation? Traditionally, the Chevron and Auer deference doctrines provide agencies significant freedom in clarifying and interpreting statutes and regulations. The use of these doctrines, though, becomes problematic when applied to fact patterns where agencies interpret the meaning of common-law terms. This Comment argues that courts should not apply either Chevron or Auer deference doctrines in cases where an agency interprets a term that already has a well-settled meaning in common law. Chevron deference is inappropriate in this scenario because Chevron is only applicable when a statute is ambiguous. By choosing to use a common-law term in a statute, Congress removed any possible ambiguity as to the meaning of the term. Congress intends for common-law terms in statutes to align with their common-law definitions. Auer deference is also inappropriate in this scenario. An agency cannot use a common-law term in a regulation, subsequently interpret that term to mean something other than its well-established definition in the common law, and then receive judicial deference for that interpretation. Courts, not agencies, are the appropriate arbiters of the meaning of a common-law term. This Comment argues that Skidmore deference is the most appropriate standard of review for agency interpretations of common-law terms. Skidmore appropriately balances an agency’s right to interpret statutes and regulations and the judiciary’s responsibility to create, maintain, and uphold the common law.

View Article ×
Brent Droze 93 Wash. L. Rev. 385

Alexa, What Should We Do About Privacy? Protecting Privacy for Users of Voice-Activated Devices


View Abstract

Alexa, What Should We Do About Privacy? Protecting Privacy for Users of Voice-Activated Devices

March 27, 2018 | 93 Wash. L. Rev. 421

Abstract: Alexa, Amazon’s digital voice assistant, and devices like it, are increasingly common. With this trend comes growing problems, as illustrated by a murder investigation in Bentonville, Arkansas. Police wanted Amazon to turn over data associated with the suspect’s Echo device, hoping it had overheard something on the night of the murder. The case sparked wide-spread interest in the privacy implications of in-home devices that record audio of users. But the biggest threat to user privacy is not that Alexa may overhear a crime—it is that law enforcement will use such devices in new ways that users are not prepared for during investigations. Thus, a solution is needed for users to have the confidence and certainty that bringing these devices into their homes will not erode their privacy. This Comment proposes that companies should ensure privacy protections are engineered into their devices, and that legislatures should adopt forward-looking statutes to ensure protections for users.

View Article ×
Anne Pfeifle 93 Wash. L. Rev. 421

Preventing Erroneous Expedited Removals: Immigration Judge Review and Requests for Reconsideration of Negative Credible Fear Determinations


View Abstract

Preventing Erroneous Expedited Removals: Immigration Judge Review and Requests for Reconsideration of Negative Credible Fear Determinations

March 27, 2018 | 93 Wash. L. Rev. 459

Abstract: The Central American refugee crisis has renewed criticism of expedited removal, which allows immigration officials to remove without a hearing certain noncitizens who seek to enter or have entered the United States. Asylum seekers who arrive at the border or ports of entry without entry documents undergo a screening process to determine whether they have a “credible fear of persecution.” An individual who receives a positive credible fear determination is entitled to a full hearing before an immigration judge. In contrast, an individual who receives a negative credible fear determination is typically subjected to expedited removal. Scholars and human rights advocates have long argued that the credible fear determination process fails to adequately identify bona fide asylum seekers, and that the power vested in individual immigration officers is susceptible to abuse.

This Comment examines two little-discussed administrative mechanisms that can prevent the erroneous expedited removal of asylum seekers: review of a negative credible fear determination by an immigration judge (IJ); and requests for reconsideration (RFRs), whereby a person who receives a negative credible fear determination may petition the Asylum Office for a positive fear finding or a re-interview. The Comment describes the mechanics of, and current practices surrounding, IJ review and RFRs. Data from the Executive Office for Immigration Review (EOIR) and U.S. Citizenship and Immigration Services (USCIS) suggest that IJ review and RFRs dramatically improve the accuracy of credible fear determinations, particularly in cases involving detained families. But the immigration agencies have failed to consistently implement either process, undermining their potential to prevent the removal of people who may face persecution in their home countries.

This Comment concludes by proposing reforms to fortify IJ review and RFRs. EOIR should allow counsel to advocate on behalf of clients during IJ review and should permit asylum seekers to introduce before the IJ information not disclosed during the credible fear interview. Moreover, USCIS should direct the Asylum Office to grant an asylum seeker’s RFR upon a showing that an official erred during the credible fear interview or that a second interview will yield new information about the asylum seeker’s claim.

View Article ×
Katherine Shattuck 93 Wash. L. Rev. 459

Incentivized Informants, Brady, Ruiz, and Wrongful Imprisonment: Requiring Pre-Plea Disclosure of Material Exculpatory Evidence


View Abstract

Incentivized Informants, Brady, Ruiz, and Wrongful Imprisonment: Requiring Pre-Plea Disclosure of Material Exculpatory Evidence

March 27, 2018 | 93 Wash. L. Rev. 523

Abstract: An incentivized informant scandal recently hit Orange County, California where county officials were caught lying, hiding, and not providing information about their informants. Concerned citizens, attorneys, and scholars are beginning to ask more questions as these stories receive increased nationwide attention: what should we do about false incentivized informant testimony? What can we do?

Under Brady, Giglio, Ruiz, and their progeny, in criminal cases the government must turn over any material exculpatory evidence that it possesses, or that is available, when the defendant decides to go to trial. However, if the government does not know—or purports not to know—about material exculpatory information, such as an informant’s testimonial history, then there are often inadequate guidelines, rules, or incentives in place for the government to seek out and turn over this type of information. Moreover, because about 95% of state and federal cases end in plea deals, an informant’s credibility usually eludes public, judicial, and the accused’s scrutiny.

This Comment offers solutions for legislatures, courts, and other government actors to use to help reduce wrongful imprisonment caused by false incentivized informant testimony. First, it outlines the types of information about incentivized informants that the government should seek out. Second, it offers several solutions and, working within United States v. Ruiz’s framework, this Comment suggests a legal standard for when the government must provide material information about an informant before a plea deal: when the government’s case primarily relies on informant testimony but material exculpatory evidence in its possession shows actual innocence.

View Article ×
Markus Surratt 93 Wash. L. Rev. 523