Washington Law Review

Print Edition

Volume 94
Published 2019
Number 1
Number 2
Number 3
Title Author Citation

Taxing Selling Partners

Taxing Selling Partners

March 31, 2019 | 94 Wash. L. Rev. 1

Abstract: When a partner sells a partnership interest, the resulting gain or loss is treated as
capital gain or loss, except to the extent that the partnership holds certain items whose sale
would result in gain or loss that was not capital. Seemingly, the purpose of this regime is to
prevent taxpayers from obtaining more favorable treatment by selling an interest in a
partnership than what would result if the partnership were to sell its underlying assets. But
given this legislative aim, the existing tax provisions produce results for taxpayers that are both
unduly favorable (in that sale of a partnership interest sometimes receives more beneficial
treatment than sale of underlying assets) and unduly unfavorable (in that, in other instances,
sale of a partnership interest triggers a less beneficial outcome than the sale of underlying
assets).

The design of the partnership tax rules also necessitates piecemeal reform as taxpayers
discover new opportunities to benefit from unduly favorable results produced by the
partnership tax regime. Most recently, in December 2017, Congress adopted legislative reform
to address one such instance involving the sale of a partnership interest by a non-U.S. person.

In addition, the method used by the partnership tax rules requires Congress to update the
statute governing sale of a partnership interest to take into account potential ripple effects of
unrelated legislative changes. As a result, the design is error prone because, inevitably,
Congress overlooks and fails to address these potential ripple effects. Changes enacted by
Congress in December 2017 provide at least one example of this phenomenon. In particular,
Congress enacted a new restriction on the deductibility of losses incurred in a trade or business.
However, Congress did not provide for a corresponding modification to the tax provisions
governing sale of an interest in a partnership—creating the potential for another way in which
the existing statutory design is unduly favorable.

Some of the problems identified by this Article existed long before the adoption of
significant tax legislation in December 2017; one of the problems was partially (but
incompletely) addressed by that legislation and one of the problems was created by that
legislation. To address each of the failings that it identifies, this Article proposes equating the
tax treatment of the sale of a partnership interest with the tax treatment of the sale of underlying
assets in all cases.

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Emily Cauble 94 Wash. L. Rev. 1

Crashworthy Code

Crashworthy Code

March 31, 2019 | 94 Wash. L. Rev. 39

Abstract: Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb.

Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the existing liability regime needs no modernist cure, and that the answer for all new technologies is patience.

This Article observes that no consensus is imminent as long as liability is pegged to a standard of “crashproof” code. The added prospect of cyber-physical injury has not changed the underlying complexities of software development. Imposing damages based on failure to prevent code crashes will not improve software quality, but will impede the rollout of cyber-physical systems.

This Article offers two lessons from the “crashworthy” doctrine, a novel tort theory pioneered in the late 1960s in response to a rising epidemic of automobile accidents, which held automakers accountable for unsafe designs that injured occupants during car crashes. The first is that tort liability can be metered on the basis of mitigation, not just prevention. When code crashes are statistically inevitable, cyber-physical manufacturers may be held to have a duty to provide for safer code crashes, rather than no code crashes at all. Second, the crashworthy framework teaches courts to segment their evaluation of code, and make narrower findings of liability based solely on whether cyber-physical manufacturers have incorporated adequate software fault tolerance into their designs.

Requiring all code to be perfect is impossible, but expecting code to be crashworthy is reasonable.

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Bryan H. Choi 94 Wash. L. Rev. 39
Patent Law and the Emigration of Innovation

Patent Law and the Emigration of Innovation

March 31, 2019 | 94 Wash. L. Rev. 119

Abstract: Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. Because, however, patent law is bound by strict territorial limitations, one cannot strengthen patent protection by innovating abroad; as a result, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent. In essence, then, there is a debate pitting industry leaders against scholarship about whether firms can use offshore innovation to secure stronger patent rights, influencing the rate of innovation.

To resolve this puzzle, we offer a novel theory of patent rights—which we empirically test—to dispel the positions taken by both scholarship and industry leaders. Given that technology is generally developed in one country, the innovation process exposes the typical inventor to infringement claims only in that jurisdiction. In turn, we demonstrate that inventors have powerful, counterintuitive incentives to develop technology where patent rights are weaker and enforcement is cheaper. Specifically, it typically costs more to defend a patent infringement claim in the United States than to lose one in another country (the cost to litigate a patent in the United States averages about $3.5 million and royalty awards have surpassed $2.5 billion). Our findings suggest that industry advocates and patent scholars overestimate how much innovation strong patent protection generates while underestimating the deterrent effect of these high costs of patent enforcement. This empirical research contributes to the theoretical understanding of patent rights by shedding new light on this important, yet largely dismissed, dimension of where innovation takes place.

We received invaluable support from international research organizations and patent attorneys working for top-tier law firms. Notably, the Global IP Project, a multinational research group spearheaded by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, the leading global intellectual property law firm, and Darts-ip, an international organization dedicated to the study of global IP litigation, provided proprietary data. This enabled us to explore whether firms optimize value by placing research and innovation in countries with “better” patent laws. To verify our models, we interviewed notable patent attorneys practicing in the United States, Europe, and Asia.

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Gregory Day & Steven Udick 94 Wash. L. Rev. 119

An Empirical Study of Fast-Food Franchsing Contracts: Towards a New "Intermediary" Theory of Joint Employment

An Empirical Study of Fast-Food Franchsing Contracts: Towards a New "Intermediary" Theory of Joint Employment

March 31, 2019 | 94 Wash. L. Rev. 171

Abstract: The “Fight for Fifteen and a Union” movement among fast-food workers and their allies has raised awareness about wage inequality in the United States. Rather than negotiating for better wages and working conditions with economically weak restaurant-level franchisees, the movement aims to affect the practices of what they view as the all-powerful brands—the franchisors. Few would dispute the notion that the franchisor brands, not their franchisees, set industry-wide standards and, thus, have the ability to offset rising wage inequality and improve working conditions. And yet, the movement has raised controversial law and policy questions about the legal responsibilities of these fast-food Goliaths under current labor and employment laws. Should fast-food brands, as franchisors, be legally responsible as “employers” for the wage-and-hour violations suffered by the individuals who serve us fast food in their franchised stores, pursuant to the Fair Labor Standards Act (FLSA)? Do they have a legal obligation, under the National Labor Relations Act (NLRA), to bargain with the labor unions representing fast-food workers in their franchised stores? This Article addresses these timely questions with original empirical research of forty-four contracts between top fifty fast-food franchisors and their franchisees in 2016. The contractual analysis reveals a new theory of joint employment via franchisor influence over franchisees’ managers. Unlike prior foci on franchisor-franchisee relations, and franchisor-crew member relations, this Article brings a new party to light: franchisees’ supervisorial managers. Jurisprudential analogy to the agricultural context, and case law regarding farm labor contractors as grower intermediaries, supports this proposed analytical lens. In sum, the theory developed from this rare dataset postulates why some of the Goliaths of fast food may indeed be “employers” with legal obligations to the workers in their franchised restaurants. Thus, courts, administrative agencies and legislators should be mindful of franchisor influence through intermediaries, as well as the complex relationships embedded in the franchise system that make disaggregating direct from indirect forms of influence difficult to impossible.

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Kati L. Griffith 94 Wash. L. Rev. 171

Veil Piercing and the Untapped Power of State Courts

Veil Piercing and the Untapped Power of State Courts

March 31, 2019 | 94 Wash. L. Rev. 217

Abstract: The U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court’s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has not yet explicitly preempted what has traditionally been the province of states, the Court has relied, both implicitly and explicitly, on its own controversial definitions of state law as the foundation on which to create speech rights for corporations and religious rights for corporate owners. Absent explicit federal preemption, states can and should fight back against this creeping federalization of state corporate law.

This Article provides a roadmap. It suggests modest changes to the veil piercing doctrine that can help to restore, at least in part, the balance of power between states and their corporate creations. A state court signaling to business owners even a potential for piercing, and thus the potential for unlimited personal liability, could discourage corporations doing business in the state from seeking religious exemptions to neutrally applicable laws. Most importantly, these changes do not threaten to undermine the corporate control mechanisms that have allowed for efficient private ordering within corporations, nor will they allow corporations to avoid these third-party protections by reincorporating in a different state. Forcing the federal courts to confront state assertions of their right to limit and define corporations will, at the very least, require the U.S. Supreme Court to be transparent about the extent to which it intends to federalize state corporate law, advancing rule of law values like certainty and predictability that are important to individuals and corporations alike.

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Catherine A. Hardee 94 Wash. L. Rev. 217
Who Decides Fair Use–Judge or Jury?

Who Decides Fair Use–Judge or Jury?

March 31, 2019 | 94 Wash. L. Rev. 275

Abstract: For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent.

Oracle raises a fundamental question in jurisprudence: Who should decide an issue–judge or jury? For the issue of fair use, the Seventh Amendment dictates that the jury should decide. The Seventh Amendment guarantees a right to a jury where an issue would have been heard by English common-law courts in 1791. Fair use is such an issue: early copyright cases make clear that juries decided fair-use issues at common law. Furthermore, the recent Supreme Court case of U.S. Bank National Ass’n v. Village at Lakeridge, LLC instructs appellate courts to employ a deferential standard in reviewing mixed questions of law and fact that resist factual generalizations. The question of fair use resists factual generalizations, turning on circumstances and factual nuances specific to each case. U.S. Bank thus suggests a deferential review. Importantly, this conclusion is consistent with the Supreme Court’s instruction in Harper & Row Publishers, Inc. v. Nation Enterprises, where the Court applied an independent review of a district court’s finding on fair use. The context of the Harper Court’s independent review was a bench trial, and at that time, courts treated the review of fair use at a bench trial differently from the review of fair use at a jury trial. Finally, juries are simply better positioned than judges to decide the sort of issues that arise in fair-use cases. Those issues call for subjective judgments that turn on cultural understandings and social norms, and the heterogeneous perspective of a jury is particularly valuable in making these judgments. Thus, the Federal Circuit in Oracle wrongly applied a de novo standard. The Constitution, precedent, and sound policy mandate deference to the jury.

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Ned Snow 94 Wash. L. Rev. 275

Access to Safety and Justice: Service of Process in Domestic Violence Cases

Access to Safety and Justice: Service of Process in Domestic Violence Cases

March 31, 2019 | 94 Wash. L. Rev. 333

Abstract: Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve personal service—whether because respondents evade service or are impossible to locate yet continue threats and abuse—are left without vitally needed protection. Procedural rules operate to inhibit the legal remedy’s effectiveness and create a two-stage dilemma by: (1) often requiring notice prior to the temporary protection order stage, which can create danger pre-hearing, and (2) requiring personal service for a full protection order when danger may still exist and the respondent may successfully evade service.

In stark contrast, other areas of the law—including antitrust, bankruptcy, domestic and international business, eviction, divorce, and termination of parental rights—readily permit alternative service methods. In seeking to understand the law’s differential treatment of domestic violence, this Article explores the historic origins of the heightened notice and service requirements for domestic violence remedies and the ongoing race, class, and gender implications, including as displayed by the #MeToo movement. In proposing expanded service methods that satisfy due process rights and address procedural justice, the Article examines both the respondent’s interests and the petitioner’s constitutionally protected right to a hearing on the merits, which is not normally acknowledged. States need not wait for tragedy before making the protection order remedy more accessible, as has been the pattern for several states that have adopted alternative service means for domestic violence remedies.

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Jane K. Stoever 94 Wash. L. Rev. 333

Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries

Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries

March 31, 2019 | 94 Wash. L. Rev. 401

Abstract: The transformation of U.S. foreign intelligence in recent years has led to increasing privacy concerns. The Foreign Intelligence Surveillance Act of 1978 (FISA) traditionally regulated foreign intelligence surveillance by authorizing warrant-based searches of U.S. and non-U.S. persons. Individualized court orders under traditional FISA were intended to protect U.S. persons and limit the scope of intelligence collection. In a post-9/11 world, however, the intelligence community cited concerns regarding the speed and efficiency of collection under traditional methods. The intelligence and law enforcement communities recognized the “wall” preventing information sharing between the communities as a central failure leading to the 9/11 attacks. In response, the scope and authorizations of foreign intelligence collection were expanded with numerous statutory measures, culminating in the passage of Section 702. Under Section 702, only non-U.S. persons located abroad may be surveillance targets, but no warrant is required for the intelligence collection. Since its passage, the intelligence community and privacy advocates have intensely debated the implications of incidental collection of U.S. person communications, including the use of U.S. person queries. Despite the significant expansion of surveillance authorized in the shift from traditional FISA to Section 702, minimization and targeting procedures regulated by the new statute are designed to protect U.S. persons and balance national security and privacy interests.

This Comment addresses the uncomfortable question of whether the U.S. Constitution permits the minor intrusion of a few to protect national security and argues that Section 702 queries are searches under the Fourth Amendment that require a justification independent from the overall surveillance to be constitutional. Nonetheless, the Fourth Amendment protects against only unreasonable searches or seizures by the government, and U.S. person queries are reasonable searches characterized by critical foreign intelligence interests and robust safeguards that outweigh limited impacts on privacy. While the Fourth Amendment does require probable cause warrants for U.S. person queries conducted for criminal investigative purposes, such queries are rare. Striking the proper balance between privacy and security, particularly in the modern technological era, is a complex and challenging legal question. In this context, considerations must include policy and value-laden choices that weigh the statute’s own regulatory measures against the rights protected by the Fourth Amendment. Such an approach renders U.S. person queries reasonable Fourth Amendment searches, albeit subject to more stringent requirements than courts and the government have previously found.

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Brittany Adams 94 Wash. L. Rev. 401

Stealing Swagger: NFL End Zone Celebrations and Fortnite's Fortune

Stealing Swagger: NFL End Zone Celebrations and Fortnite's Fortune

March 31, 2019 | 94 Wash. L. Rev. 453

Abstract: Football is a staple in many American households: each week, millions watch the game. Every year, National Football League athletes benefit by taking advantage of this passion, not only by earning millions of dollars in salary, but also by signing lucrative endorsement deals. While success on the field is a starting point, an athlete with a captivating personality stands to gain even more financially. A unique end zone celebration that captures fans’ hearts contributes to that personality and makes the player more marketable.

In 2017, after announcing plans to relax the rules against end zone celebrations, the National Football League saw a rise in such celebrations. That same year, a video game called Fortnite exploded onto the scene. Fans were particularly interested in the dances they could make their video game characters perform—dances originally created and performed by pop culture icons.

Because copyright law presumes authors need a financial incentive to create, copyright law protects expressive works, including choreography. However, recent guidance from the U.S. Copyright Office denies protection to end zone celebrations. This Comment largely concurs: Given copyright’s requirements, most celebrations are too simple and therefore will not, and should not, receive protection. Nevertheless, more complex celebrations are arguably copyrightable. If Fortnite has already copied the choreography of others and profited handsomely, there is no reason why end zone celebrations could not be its next target. The Copyright Office opened the door to this kind of commercial appropriation, and now it is time to shut it.

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Alex Avakiantz 94 Wash. L. Rev. 453

What Do You Know? Discovering Document Compilations in 39(B)(6) Depositions

What Do You Know? Discovering Document Compilations in 39(B)(6) Depositions

March 31, 2019 | 94 Wash. L. Rev. 481

Abstract: The work product doctrine emerged as a judicially created, practical solution to resolve problems inherent in the Federal Rules of Civil Procedure (FRCP). While the FRCP famously sought to broaden discovery and increase parties’ access to information, the rules infamously failed to prevent attorneys from discovering each other’s work product. For policy reasons—primarily to keep some semblance of the adversarial system—the U.S. Supreme Court created work product qualified immunity to prevent attorneys from discovering their opponents’ work, mental impressions, and legal strategies.

At the end of the twentieth century, courts significantly extended the work product doctrine when they began to recognize document compilations—the groups of documents attorneys use to prepare their witnesses for depositions—as privileged work product. These courts found that attorneys’ document selection and organization processes necessarily reveal their mental impressions about cases and are therefore shielded by the work product doctrine. This relatively new work product designation has led to a flood of litigation and prevented deposing attorneys from successfully examining their witnesses. More specifically, deposing attorneys cannot effectively test witness memory or credibility when the attorney does not know which documents the witness reviewed.

Nowhere is this problem more apparent, or more problematic, than in the realm of 30(b)(6) depositions. FRCP 30(b)(6) governs the depositions of corporations. It requires corporations to choose a corporate designee who will bind the company as a whole through his or her testimony. Because corporate designees are frequently required to testify about vast amounts of information relating to the corporation, they almost always review document compilations to prepare for their depositions. In fact, their knowledge may be entirely secondhand, stemming completely from the documents reviewed rather than their own personal experiences. When parties shield these preparatory documents under the work product doctrine, they prevent the deposing attorney from learning the basis of the witness’s testimony. This puts the examiner at a unique disadvantage. This Comment addresses the issue of document compilations in the context of 30(b)(6) depositions. It argues that 30(b)(6) document compilations are not work product at all.

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Sara Leonetti 94 Wash. L. Rev. 481
Title Author Citation

Some Kind of Hearing Officer

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

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

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?

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

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

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

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

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

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
Title Author Citation

The Return of the Technical McDonnell Douglas Paradigm

The Return of the Technical McDonnell Douglas Paradigm

October 31, 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

Copyright's Market Gibberish

October 31, 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

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

October 31, 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?

Public or Private Venture Capital?

October 31, 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

Permissive Certificates: Collectors of Art as Collectors of Permissions

October 31, 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

Why Settle for Less? Improving Settlement Conferences in Federal Court

October 31, 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

The Promises and Perils of Using Big Data to Regulate Nonprofits

October 31, 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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Llyod Hitoshi Mayer 94 Wash. L. Rev. 1281

Contract Interpretation with Corpus Linguistics

Contract Interpretation with Corpus Linguistics

October 31, 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

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

October 31, 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

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

October 31, 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

Rethinking Emergency Legislation in Washington State

October 31, 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
Volume 93
Published 2018
Number 1
Number 2
Number 3
Number 4
Title Author Citation

The Marital Wealth Gap

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.

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Erez Aloni 93 Wash. L. Rev. 1

Snake Oil Speech

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.

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Jane R. Bambauer 93 Wash. L. Rev. 73

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

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.

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Hannah Bloch-Wehba 93 Wash. L. Rev. 145

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

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.

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Amy Gajda 93 Wash. L. Rev. 201

Forum-Selection Provisions in Corporate “Contracts”

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.

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Helen Hershkoff & Marcel Kahan 93 Wash. L. Rev. 265

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

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.

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Jonathan Rosenbloom 93 Wash. L. Rev. 317

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

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.

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Brent Droze 93 Wash. L. Rev. 385

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

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.

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Anne Pfeifle 93 Wash. L. Rev. 421

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

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.

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Katherine Shattuck 93 Wash. L. Rev. 459

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

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.

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Markus Surratt 93 Wash. L. Rev. 523
Title Author Citation

How Copyright Law Can Fix Artificial Intelligence’s Implicit Bias Problem

How Copyright Law Can Fix Artificial Intelligence’s Implicit Bias Problem

January 01, 2018 | 93 Wash. L. Rev. 579

Abstract: As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. This Article is the first to examine perhaps the most powerful law impacting AI bias: copyright.

Artificial intelligence often learns to “think” by reading, viewing, and listening to copies of human works. This Article first explores the problem of bias through the lens of copyright doctrine, looking at how the law’s exclusion of access to certain copyrighted source materials may create or promote biased AI systems. Copyright law limits bias mitigation techniques, such as testing AI through reverse engineering, algorithmic accountability processes, and competing to convert customers. The rules of copyright law also privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased. Second, it examines how a different part of copyright law—the fair use doctrine—has traditionally been used to address similar concerns in other technological fields, and asks whether it is equally capable of addressing them in the field of AI bias. The Article ultimately concludes that it is, in large part because the normative values embedded within traditional fair use ultimately align with the goals of mitigating AI bias and, quite literally, creating fairer AI systems. 

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Amanda Levendowski 93 Wash. L. Rev. 579

The Secret Life of Priority: Corporate Reorganization After Jevic

The Secret Life of Priority: Corporate Reorganization After Jevic

January 01, 2018 | 93 Wash. L. Rev. 631

Abstract: Academics have long debated whether the order of bankruptcy distributions should be “absolute” or “relative.” Should courts have the flexibility to scramble priority to serve some greater good? The Supreme Court’s recent decision in Czyzewski v. Jevic Holding Corp. holds that the answer is “no”: priority is absolute absent the consent of affected creditors.

“Consent” is not self-defining, however, and is largely ignored in debates about priority. This is a problem because consent is hard to pinpoint in corporate reorganizations, a type of aggregate proceeding that can involve hundreds or thousands of creditors and shareholders. Although the Jevic majority does not define consent, its reasoning reflects a Court concerned about process values that proxy for it: stakeholder participation, outcome predictability, and procedural integrity. Jevic thus reveals a secret: “priority” is not only about the order in which a corporate debtor pays its creditors, but also about the process by which it does so.

I make three main points. First, I explain why “consent” is indeterminate in this context, inviting inspection of process quality. Second, I assess Jevic’s process-value framework. Implementing these values is not costless, so the Court’s commitment to them suggests that efficiency—the mantra of many scholars—is not the only or necessarily the most important value in reorganization. Third, I argue that these values conflict with the power that senior secured creditors have gained in recent years to control corporate reorganizations. Many worry that this power produces needless expropriation and error. I conclude by sketching opportunities that Jevic creates for scholars and practitioners who share these concerns.

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Jonathan C. Lipson 93 Wash. L. Rev. 631

Retaliation Backlash

Retaliation Backlash

January 01, 2018 | 93 Wash. L. Rev. 715

Abstract: Until fairly recently, the narrative regarding employment retaliation plaintiffs has been that the federal courts—and the Supreme Court in particular—are generally sympathetic to employees claiming illegal workplace retaliation. This narrative has changed drastically over the past few years, to the point that there has been a backlash among courts to the initial wave of plaintiff success. In this respect, the evolution of retaliation law largely tracks the evolution of disability law. This Article argues that the evolution of these areas of the law illustrates a simple but fundamental point about the interpretation of statutes regulating the workplace at present: unless the text of the statute strongly supports a reading that limits the discretion traditionally afforded to employers under the employment at-will doctrine, courts, as a general rule, will not adopt that reading, nor will they apply the statute in that manner.

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Alex B. Long 93 Wash. L. Rev. 715

Visual Metaphor and Trademark Distinctiveness

Visual Metaphor and Trademark Distinctiveness

January 01, 2018 | 93 Wash. L. Rev. 767

Abstract: Perhaps because words are the lawyer’s principal instrument, the law gives too little attention to visual images. Invoking Justice Potter Stewart’s infamous statement regarding the law’s inability to define obscenity, “I know it when I see it” is the standard for interpreting images in the law. A greater understanding of the ways in which images make meaning is needed, however, including in trademark law given our increasingly visual economy.

This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image marks—logos and product packaging—it has long used the “imagination” test to effectively determine a word mark’s distinctiveness. Under the imagination test, immediately protectable word marks must operate in a metaphorical relationship to the words from which they are drawn (i.e., as figures of speech), requiring consumers to use their imagination to reach a conclusion as to the nature of the goods or services offered under the marks (e.g., “Klondike” for ice cream and “Greyhound” for a bus service). This makes sense because the first requirement of a valid trademark is that it be a “symbol,” and, as this Article shows, the basic characteristic of any symbol is its figurative quality. Research in conceptual metaphor theory finds, though, that metaphor is “primarily a matter of thought and action and only derivatively a matter of language.” Indeed, brands rely not just on verbal metaphor, but also on visual metaphor to differentiate themselves from competitors in the marketplace (e.g., Target’s “bullseye” and Starbucks’s “siren”).

This Article thus claims that visual metaphor provides a figurative, cognition-based vehicle by which to extend trademark law’s imagination test of inherent distinctiveness from words to images. In doing so, it conceives of metaphorical association as a central consideration in analyzing the inherent distinctiveness of both word and image marks.

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Dustin Marlan 93 Wash. L. Rev. 767

Confidentiality in Patent Dispute Resolution: Antitrust Implications

Confidentiality in Patent Dispute Resolution: Antitrust Implications

January 01, 2018 | 93 Wash. L. Rev. 827

 Abstract: Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents.

Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, particularly when it involves only private negotiations. In other contexts, however, and notably in arbitration, which is a substitute for open court proceedings, the competitive balance is more problematic. Indeed, U.S. patent law mandates that patent arbitration awards be made public through the Patent and Trademark Office, though this requirement is generally ignored.

Information about licensing terms is particularly important in one of today’s most important patent licensing contexts. The standard-setting organizations that define the technologies used in products like smartphones typically require their members to commit to license patented technologies that are adopted in standards on fair, reasonable, and nondiscriminatory (FRAND) terms. The non-discriminatory element of this commitment is difficult for potential licensees to enforce without information about the licensing terms to which other licensees have agreed.

This Article describes the value of patent licensing information and discusses the antitrust implications of agreements to keep that information confidential, particularly in the FRAND context and in arbitration. The Article also offers several ways in which parties, standard-setting organizations, and arbitration bodies could seek to avoid the anticompetitive effects of confidentiality.

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Mark R. Patterson 93 Wash. L. Rev. 827

Choosing Medical Malpractice

Choosing Medical Malpractice

January 01, 2018 | 93 Wash. L. Rev. 891

Abstract: Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases—dealing with alternative therapies and Jehovah’s Witness blood refusals—lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.

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Nadia N. Sawicki 93 Wash. L. Rev. 891

Dangerous Warrants

Dangerous Warrants

January 01, 2018 | 93 Wash. L. Rev. 967

Abstract: The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if they are no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.

This Article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The Article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the Article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

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Nirej Sekhon 93 Wash. L. Rev. 967

Privacy in the Cloud: The Fourth Amendment Fog

Privacy in the Cloud: The Fourth Amendment Fog

January 01, 2018 | 93 Wash. L. Rev. 1019

Abstract: The Cloud has changed how individuals record, store, and aggregate their personal information. As technology’s capacity for holding an individual’s most intimate details and recording day-to-day experiences increases, Fourth Amendment privacy protections become less equipped to respond to technological advances. These advances allow private companies to store an immense amount of their consumers’ personal information, and government entities to obtain that information. In response, tech companies have begun refusing to comply with government demands for information collected and stored in their devices and in the Cloud, and are increasingly ending up in court, fighting orders to disclose consumer information. A dynamic tension has developed between the United States government’s desire and increased capacity to obtain information about consumers, and tech companies wanting to keep their consumers’ information private. The relevant statute, the Electronic Communications Privacy Act (ECPA), is not equipped to address these technological advances. The Supreme Court’s extensive Fourth Amendment jurisprudence and guidelines for addressing Fourth Amendment issues are similarly ill-suited to answer the novel and unique issues that accompany digital, remote storage of personal information. This Comment identifies the inadequacies of ECPA and the Fourth Amendment jurisprudence as they each apply to technological advances and the potential of Cloud data. It argues that Congress must revise the legislative scheme to adequately protect information stored in the Cloud, particularly addressing whether consumers have a right to know when their information is being accessed by the United States government. Further, it argues courts lack the tools to adequately amend, reframe, repeal, or apply ECPA, and thus should not be the primary body making decisions about the bounds of technologically based government collection under the Fourth Amendment. Alternatively, if the legislature does not act, courts will remain required to make findings related to whether the collection of information is a violation of the Fourth Amendment. Courts should, then, recognize that digital data deserves a fundamentally distinct analysis and discontinue the trend of finding attenuated connections between classic surveillance techniques and government surveillance using advanced technology.

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Sarah Aitchison 93 Wash. L. Rev. 1019

I Would Like to Request Your Academic Records: FERPA Protections and the Washington Public Records Act

I Would Like to Request Your Academic Records: FERPA Protections and the Washington Public Records Act

January 01, 2018 | 93 Wash. L. Rev. 1057

Abstract: The Washington Public Records Act is a broad mandate for the release of almost all public records. In response to a request, a state or local agency must produce the requested records unless a specific exemption applies. In part to enforce compliance on public agencies, the Public Records Act requires that a requester be compensated for statutory fees, costs, and attorneys’ fees if a government agency declines to provide a public record, is challenged, and the requester succeeds in court. However, within public education agencies, compliance with the Washington Public Records Act can run against the agencies’ requirements under the Federal Education Rights and Privacy Act.

The Federal Education Rights and Privacy Act mandates a broader protection of student records than is provided by the Washington Public Records Act. An agency’s violation of the Federal Rights and Privacy Act can result in the loss of all federal education funds. Federal education funds are vital both to school districts and to post-secondary universities for student grants and secured loans. Thus, Washington education agencies are left in a Catch 22: release records and potentially lose federal education money or safeguard the records and pay substantial fines and fees under the Public Records Act.

However, there is a potential failsafe. The Washington Public Records Act allows for courts to find public records exempted from production by an “other statute” that exempts production. Thus, Washington courts should find that the Federal Education Rights and Privacy Act is an “other statute” that exempts production of student records not otherwise exempted by the Washington Public Records Act.

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Tevon Edwards 93 Wash. L. Rev. 1057

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

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
Title Author Citation

Does Small Group Health Insurance Deliver Group Benefits? An Argument in Favor of Allowing the Small Group Market to Die

Does Small Group Health Insurance Deliver Group Benefits? An Argument in Favor of Allowing the Small Group Market to Die

October 01, 2018 | 93 Wash. L. Rev. 1121

Abstract:  The small group health insurance market is failing. Today, fewer than one-third
of small firms now offer health insurance and the number of people covered by small group
insurance continues to drop. These problems invite the obvious question: What should be
done about the small group market? Past scholarship on the small group market has largely
focused on documenting the market’s problems, evaluating the effectiveness of prior reform
efforts, and proposing regulatory changes to stabilize the market. This Article takes a
different approach to the small group problem by asking a previously unasked question: Does
the small group market deliver group insurance benefits? Group insurance, first established
in the life insurance industry, came about because it offered insureds a better deal than
individual coverage. Group insurance provided four core benefits: reduced adverse selection,
lower administrative costs, greater access to insurance, and tax-subsidized premiums. This
Article argues the small group market largely fails to deliver the core benefits of group
coverage. For many, the small group market offers no better deal than the individual market.
Given these findings, it is hard to justify further interventions to save the small group market.
The decline and dissolution of the small group market would likely shift millions to the
individual market, resulting in a substantially larger and more stable individual market.

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John Aloysius Cogan Jr. 93 Wash. L. Rev. 1121

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty and the Right to Exclude

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty and the Right to Exclude

October 01, 2018 | 93 Wash. L. Rev. 1181

Abstract:  Over the past few decades, landowners have tried to use the First, Fourth, and
Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts
were to succeed, there would be a host of negative consequences, and not just for surfers. In most states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would have a significant impact on public access.

This Article explores the possibility that courts and the public can put an end to the beach
privatization movement simply by pointing to the common law of waterfront property.
Historically, both courts and scholars have largely ignored the challenging title issues created
by the common law and, in particular, by the rules governing boundary relocation after
waves, currents, tides, and winds have changed the shape of a beach. These rules serve
important purposes, but also make it impossible to know the location of public-private beach
boundaries in real time, that is, at the moment the landowner wishes to use the boundary to
exclude others from her property. The consequence of this real-time uncertainty is that, as a
matter of law, landowners do not have an enforceable right to exclude. The absence of a right to exclude not only undercuts constitutional claims premised on its existence, but also leads to the conclusion that the public has the right to use the entire beach.

If there is no right to exclude, what are the beachfront owner’s rights? Real-time
uncertainty makes it impossible for the owner to prove title in real time, but the same would
also be true for the state; thus the state and neighboring owners enjoy a form of co-tenancy in the sand. To protect the private interest, and to fill the vacuum left by the vanished right to exclude, this Article suggests that the state should grant landowners a more stable exclusion line, at the top of the beach, and give each landowner the right to prevent unreasonable public use of adjacent beach areas.

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Josh Eagle 93 Wash. L. Rev. 1181

Emojis and the Law

Emojis and the Law

October 01, 2018 | 93 Wash. L. Rev. 1227

Abstract:  Emojis are an increasingly important way we express ourselves. Though emojis
may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—
such as whether someone should be obligated by contract, liable for sexual harassment, or sent
to jail.

Our legal system has substantial experience interpreting new forms of content, so it should
be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra
interpretative challenges. This Article identifies those attributes and proposes how courts
should handle them.

One particularly troublesome interpretative challenge arises from the different ways
platforms depict emojis that are nominally standardized through the Unicode Consortium.
These differences can unexpectedly create misunderstandings.

The diversity of emoji depictions is not technologically required, nor does it necessarily
benefit users. Instead, it likely reflects platforms’ concerns about intellectual property
protection for emojis, which forces them to introduce unnecessary variations that create
avoidable confusion. Thus, intellectual property may be hindering our ability to communicate
with each other. This Article will discuss how to limit this unwanted consequence.

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Eric Goldman 93 Wash. L. Rev. 1227

The Legal Monopoly

The Legal Monopoly

October 01, 2018 | 93 Wash. L. Rev. 1293

Abstract:  Lawyers enjoy an exclusive monopoly over their craft, one unlike any other
profession or industry. They bar all others from offering legal representation. In most
jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as
well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to
protect the public and preserve professionalism, but it also reduces competition, constrains
information, and maintains artificially high prices. Consequently, much of the American public
goes without help when a lawyer is needed.

Federal antitrust law typically steps in to remedy this sort of pervasive market control,
promoting competition and free markets for the public good. The legal profession, however,
largely avoids antitrust scrutiny because the courts fall into a special exception known as the
“state action doctrine,” permitting anticompetitive actions by governmental bodies to engage
in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying
this exception—that the regulators are not themselves members of the regulated profession or
industry—is not true for most lawyer regulation. Accordingly, this Article proposes applying
federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase
access to affordable legal services while preserving professionalism and client protection.

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Renee Newman Knake 93 Wash. L. Rev. 1293

Contesting Police Credibility

Contesting Police Credibility

October 01, 2018 | 93 Wash. L. Rev. 1339

Abstract:  Criminal cases often amount to credibility contests between two actors: the
complainant, testifying for the government, and the defendant. In theory, the defendant’s
opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant has a constitutional right to a fair trial. But when the government’s witnesses are police officers, the converse occurs. Although the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining and utilizing evidence about officers that would call into question their credibility as witnesses.

The thesis of this Article is that, when it comes to helping a jury assess the credibility of
defendants and police officer witnesses, the law gets it backward. On the one hand, our data
collection systems and evidentiary doctrines allow the government nearly instant access to a
defendant’s entire history of encounters with the law, disincentivize defendants from testifying at their own trials, and give prosecutors myriad means to introduce evidence suggesting that the defendant is, based on prior misdeeds, likely to be guilty of the charged crime. On the other hand, the law perversely prevents defendants from casting doubt on the credibility of police officers, by making police misconduct records confidential and, in many cases, inaccessible to defendants. This unequal distribution of access and ability to utilize information creates trials where the jury is exposed to extensive evidence suggesting the accused is an incredible, and likely guilty party, but remains naïve to the many reasons to question the credibility of the police officer.

This Article, while grounded in a rich tradition of scholarly literature critiquing the many
ways the American criminal system venerates law enforcement and represses people of color,
provides a novel contribution to that literature by exposing the particularly problematic
imbalances that result when the government is not only prosecuting a defendant, but also acting as his primary accuser. After thoroughly analyzing the doctrines that enable these inequities, this Article provides recommendations for reform in three areas: (1) the lack of thorough recordkeeping and accurate data pertaining to police misconduct; (2) the laws that prevent defense counsel from accessing and utilizing police misconduct records that do exist; and (3) the evidentiary rules that permit governments to access and utilize bad acts and character evidence against defendants.

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Rachel Moran 93 Wash. L. Rev. 1339

The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role

The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role

October 01, 2018 | 93 Wash. L. Rev. 1397

Abstract:  Within Eighth Amendment doctrine, legislators are arbiters of contemporary
values. The United States Supreme Court looks closely to state and federal death penalty
legislation to determine whether a given punishment is out of keeping with “evolving standards
of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both
ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative
debates preceding the recent passage of bills abolishing the death penalty in Connecticut,
Illinois, and Nebraska. We categorized all statements according to their position on the death
penalty, their subject matter, and any references they made to the courts and Constitution. We also collected basic facts about the legislators, including about political party, race, education, and profession. We present our quantitative and qualitative findings here.

Building upon these findings, we critically examine the Court’s use of legislation as an
“objective indicator” of “evolving standards of decency.” We identify disconnects between
legislative outcomes and community “standards of decency,” and we analyze legislators’
understanding of their constitutional significance and why their level of self-awareness may
matter. Finally, we consider how legislative debates—rather than outcomes alone—might
provide insights into contemporary values. In particular, the strong concern we observed over
wrongful execution may support more robust Eighth Amendment protections for those
claiming actual innocence.

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David Niven & Aliza Plener Cover 93 Wash. L. Rev. 1397

Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review

Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review

October 01, 2018 | 93 Wash. L. Rev. 1449

Abstract:  In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint
Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay
an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in
exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its
tribal immunity in any administrative proceeding challenging the patents. Two outcomes were
expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights
to manufacture and market a highly profitable drug while insulating the underlying patents
from an unforgiving administrative inter partes review (IPR). Second, SRMT would embark
on a new business venture of collecting and relicensing patents from third parties, effectively
“renting out” its sovereign immunity. The response from lawmakers, the judiciary, the
executive branch, and the public at large was acrimonious. The agreement was branded in
public forums as a “sham” and the Patent Trial and Appeal Board held the patents assigned to
SRMT were not shielded by tribal immunity. This Comment argues the Allergan-Mohawk
agreement is a legally effective means of avoiding IPR. Absent an express waiver of tribal
immunity by Congress or the tribe itself, a tribe may not be subject to a private claim. This rule
extends to IPR proceedings which closely parallel private suits. Therefore, contracts like the
Allergan-Mohawk agreement effectively shield patents from IPR.

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Seth W. R. Brickey 93 Wash. L. Rev. 1449

Flight and Federalism: Federal Preemption of State and Local Drone Laws

Flight and Federalism: Federal Preemption of State and Local Drone Laws

October 01, 2018 | 93 Wash. L. Rev. 1495

Abstract:  Small, unmanned aircraft referred to as “drones” are becoming increasingly
common in the skies above the United States. Their increasing ubiquity has been driven by the wide variety of industries and tasks to which they can be applied, but it has also drawn the attention of government. Where Amazon.com sees the potential for packages delivered in
thirty minutes or less, governments see crowded skies and clumsy pilots, to name only two
potential risks associated with the widespread integration of drones into the national airspace. To that end, just as Amazon.com has ambitiously made use of the technology, state and local governments have begun to actively regulate drone use. The City of Chicago, for example, enacted an ordinance essentially banning drones within city limits.

A major legal hurdle potentially stands in the way of those state and local efforts: The
federal government has also regulated the commercial use of drones. The Federal Aviation
Administration (FAA), guided by congressional direction to safely accelerate the process of
integrating drones into the national airspace, promulgated comprehensive regulations
governing commercial drone use. This overlap with state and local laws leads to issues of
preemption. The doctrine of preemption reflects the principle that, in the United States, where a (valid, constitutional) federal law conflicts with a state or local law, the federal law
supersedes its counterparts.

This comment explores the issue of federal preemption of state and local drone laws. It
concludes—based on a survey of preemption law, useful analogues from other areas of law,
and first-of-its-kind drone preemption litigation—that restrictive drone laws like Chicago’s are
preempted by the FAA regulations. Yet all is not lost for the state or local government wishing to have a say in matters of drone regulation. As this comment explains, there are strong arguments that state and local governments can regulate certain uses of drones, particularly in light of a doctrine known as the presumption against preemption. To that end, some state and local laws are clearly safe from preemption challenges. Others are just as clearly preempted. Finally, there is a category of state and local laws that fall somewhere in between those two extremes, for which the outcome of future preemption challenges is unclear.

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Nicholas Cody 93 Wash. L. Rev. 1495

A Stute Observation: Re-Examining Washington’s Enforcement of Workplace Safety Regulations

A Stute Observation: Re-Examining Washington’s Enforcement of Workplace Safety Regulations

October 01, 2018 | 92 Wash. L. Rev. 1605

Abstract:  In 1973, the Washington State Legislature enacted the Washington Industrial
Safety and Health Act. The stated purpose of the Act was to ensure safe working conditions
for the working men and women of Washington. Seventeen years later, the Washington State
Supreme Court held that general contractors are per se liable for the WISHA violations of their
subcontractors. However, the Washington Department of Labor and Industries has adopted a
policy of citing general contractors for subcontractor violations only in limited circumstances.
This Comment first outlines the development of worker safety laws in Washington, then
examines the effects of the Department’s policy at both the administrative and appellate level.
Finally, this Comment argues that the Department’s policy is contrary to the governing law
and should be altered to be in line with the law, avoid potential confusion on appeal, and fulfill
the purpose of WISHA: to protect Washington’s workers.

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Ben Moore 92 Wash. L. Rev. 1605

Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute

Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute

October 01, 2018 | 93 Wash. L. Rev. 1563

Abstract:  This Comment examines the constitutionality of Washington’s cyberstalking
statute, RCW 9.61.260, and its treatment of anonymous online speech. While the statute was
drafted to ensure that women are free from domestic and gender-based violence, the statute
as currently written and enforced infringes on the constitutionally protected right to free
speech. There has only been one action, Moriwaki v. Rynearson, enforcing the provision of the statute related to anonymous speech. The court ultimately overturned the stalking protection order, which the plaintiff brought to halt political speech, on First Amendment grounds. While the Moriwaki court concluded that the stalking protection order there was an unconstitutional application of the law, RCW 9.61.260 is likely facially invalid under the First Amendment and incapable of withstanding strict scrutiny analysis. Faced with these issues, Washington has several options. Washington courts could narrowly construct RCW 9.61.260(1)(b). In so doing, courts could differentiate between anonymous speech that is ordinarily protected by the First Amendment and speech that is unprotected. The courts could also overturn the entire statute as unconstitutional on First Amendment grounds. This Comment argues that the legislature should return to the drawing board and redraft RCW 9.61.260 so that it can pass muster under the First Amendment. This Comment also proposes model legislation on which the Washington legislature could base a new law. Regardless of what Washington decides to do, the importance of preventing violence against women and preserving free speech online are too great to sacrifice to sloppy legislative drafting.

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Sarah E. Smith 93 Wash. L. Rev. 1563
Title Author Citation

Reversing the Reliance Revolution in Contract

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

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

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

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

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

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

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

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

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

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

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

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
Volume 92
Published 2017
Number 1
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Title Author Citation

Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration

Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration

March 21, 2017 | 92 Wash. L. Rev. 1

Abstract: In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes: (1) a share of fish harvests for subsistence, cultural, and commercial purposes; (2) inclusion of hatchery fish in that harvest share; and (3) protection of the habitat necessary for the salmon that were the basis of the treaty bargain and the peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee persuaded the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third issue, declining to declare that the treaties supplied habitat protection in the absence of a specific factual dispute. Some two decades later, in 2007, the tribes and the federal government convinced United States District Court Judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting the state’s allegations wholesale. This Article examines the reasoning of both the district court and the Ninth Circuit and the path ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity. Moreover, the Ninth Circuit’s reliance on foundational rules of treaty construction to interpret the scope of the treaty right of taking fish could influence other Indian treaty cases beyond the issue of off-reservation fishing rights. Even if confined to treaties with off-reservation rights, the case represents the most significant interpretation of treaty fishing rights in nearly four decades.

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Michael C. Blumm 92 Wash. L. Rev. 1

Donor Advised Funds: Charitable Spending Vehicles for 21st Century Philanthropy

Donor Advised Funds: Charitable Spending Vehicles for 21st Century Philanthropy

March 21, 2017 | 92 Wash. L. Rev. 39

Abstract: The donor advised fund (DAF) is changing longstanding giving norms in United States philanthropy. DAF contributions now account for around 8.4% of giving by individuals in the U.S. Over half of those contributions go to national DAF sponsors that have relationships with large commercial investment firms like Fidelity, Vanguard, and Schwab. This Article seeks to advance the understanding of the donor advised fund and to address two of the main policy questions: whether to require a mandatory distribution of funds by DAFs and their sponsoring organizations and how to respond to the increased use of DAFs for noncash charitable contributions. Part I of the Article provides a brief overview of DAFs. Part II of the Article discusses the different ways DAFs are viewed—as quasi-private foundations, public charity substitutes, or as catalysts for new charitable giving. Each view suggests a different regulatory approach. Part III focuses distinctly on the national sponsoring organization and the reason for its section 501(c)(3) status. The Article argues that as an organization that fulfills its mission by spending, it is appropriate for policymakers to require each fund to spend down contributions over a range of years. Part IV of the Article examines the solicitation by DAF-sponsoring organizations of charitable contributions of property, including privately traded stock, real estate, fine art, collectibles, and publicly traded securities. The increasing use of DAFs for noncash contributions will accentuate the problems of current law, which include a deduction for unrealized appreciation, overvaluation of contributed property, uncertain benefits to charity, equity concerns, and enforcement. Part IV argues that if Congress intends to retain the subsidy for property contributions, DAFs present an opportunity to improve and lower the cost of the subsidy both by reducing the amount of unrealized appreciation that may be deducted and by basing the amount of the deduction for property contributions on the net benefit to charity.

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Roger Colinvaux 92 Wash. L. Rev. 39

“Clientless” Lawyers

“Clientless” Lawyers

March 21, 2017 | 92 Wash. L. Rev. 87

Abstract: Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make—and indeed that legal ethics rules would expressly require clients to make in other contexts—such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law. More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.

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Russell M. Gold 92 Wash. L. Rev. 87

Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit’s Application of eBay

Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit’s Application of eBay

March 21, 2017 | 92 Wash. L. Rev. 145

Abstract: More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.

This Article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset on appeals from almost 200 patent cases, we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate the Federal Circuit is generally more favorable to prevailing patentees regarding injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, the implications of this and other empirical findings from the study are considered.

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Ryan T. Holte & Christopher B. Seaman 92 Wash. L. Rev. 145

The Bright Line’s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel

The Bright Line’s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel

March 21, 2017 | 92 Wash. L. Rev. 213

Abstract: In this Article, Professor Mulroy discusses a current circuit split over whether the Sixth Amendment right to counsel can ever attach prior to a prosecutor filing a formal charge (i.e., an indictment or information). Relying on language in several Supreme Court opinions, some lower courts impose a bright-line rule stating that unless there has been such a formal charge (or unless the defendant has appeared before a judge), the right can never attach, in part because the Sixth Amendment’s text refers to a “criminal prosecution” and an “accused.” This rule can lead to harsh results—e.g., where a prosecutor takes advantage of an uncounseled defendant in pre-indictment plea negotiations, or where defense counsel in such negotiations provides unprofessional service, but there can be no claim for ineffective assistance of counsel.

The Article argues against a bright-line rule. Professor Mulroy argues that a proper understanding of the Amendment’s text, the language of the relevant Supreme Court opinions explaining the underlying reasons for right to counsel protection, and pragmatic considerations of basic fairness all support a pre-charge right to counsel in at least some circumstances. He proposes a new rule: the right attaches whenever a prosecutor is involved in substantive communications with a defendant, either directly or through defense counsel. This rule would apply to: pre-charge plea and other negotiations; subpoenaed grand jury testimony; pretrial depositions taken pursuant to Rule 15 of the Federal Rules of Criminal Procedure; and similar situations. It derives analogous support from the “no contact” ethical requirement of Model Rule 4.2, and, as applied to custodial interrogations, harmonizes Sixth Amendment doctrine with Fifth Amendment case law.

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Steven J. Mulroy 92 Wash. L. Rev. 213

Artistic Control After Death

Artistic Control After Death

March 21, 2017 | 92 Wash. L. Rev. 253

Abstract: To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of the laws and policies that govern bequests more generally. In particular, it considers the enforceability of attempted artistic control through the imposition of a fiduciary duty. In balancing the competing interests, this Article considers the demands of both state trust laws and federal copyright policy. In the end, this Article argues that authorial instructions must yield to the needs of the living. Such a view requires that, to the greatest extent possible, some living person(s) be authorized to decide how works of authorship are used—even if that means overriding artistic control by the dead.

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Eva E. Subotnik 92 Wash. L. Rev. 253

Are the SEC’s Administrative Law Judges Biased? An Empirical Investigation

Are the SEC’s Administrative Law Judges Biased? An Empirical Investigation

March 21, 2017 | 92 Wash. L. Rev. 315

Abstract: The Dodd-Frank Act significantly expanded the SEC’s enforcement flexibility by authorizing the agency to choose whether to bring an enforcement action in court or in an administrative proceeding. The change has faced strong opposition. Federal courts have enjoined several enforcement actions filed in administrative proceedings for constitutional infirmities, and cases are currently winding their way through the appellate process. But even if any constitutional problems were remedied, controversy would persist. Judges, lawmakers, practitioners, and academics have raised doubts as to whether litigation before administrative law judges ("ALJs") is fair to defendants. In advancing their arguments, they have relied heavily on a series of reports published in the Wall Street Journal purporting to show that the SEC enjoys a home-court advantage in litigation before ALJs.

As documented in this Article, the evidence offered by the Wall Street Journal is deficient and its conclusions unfounded. This Article compiles and analyzes a large dataset of all enforcement actions filed in fiscal years 2007 to 2015. Contrary to the claim advanced by the Wall Street Journal and critics of administrative adjudication, SEC litigation before ALJs remains rare. Although the number of contested actions filed in the administrative forum has increased since Dodd-Frank, this is mostly due to an increase in actions that could have been litigated before ALJs prior to the Dodd-Frank amendment. More significantly, there is no robust correlation between the selected forum and case outcome. Federal district court judges ruled for the SEC and against defendants in 88% of cases, whereas ALJs ruled for the SEC in 90% of cases. This finding does not imply that the type of forum in which the SEC litigates does not matter. Rather, there are significant empirical obstacles to finding any useful results by comparing case outcomes.

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Urska Velikonja 92 Wash. L. Rev. 315

The Washington State Constitution and Charter Schools: A General and Uniform Prohibition?

The Washington State Constitution and Charter Schools: A General and Uniform Prohibition?

March 21, 2017 | 92 Wash. L. Rev. 371

Abstract: In its 2015 opinion in Washington League of Women Voters v. State, the Washington State Supreme Court invalidated Initiative 1240—which authorized the creation of charter schools. The Court considered two issues on appeal: (1) that the charter schools unconstitutionally diverted common school funds to non-common schools; and (2) that the charter schools violated article IX, section 2 requiring the legislature to establish a "general and uniform system of common schools." The Court resolved the case on the common school fund issue and did not reach the "general and uniform" challenge. In its slip opinion, the Court had included a footnote explaining that the charter schools under Initiative 1240 also violated the uniformity of the common school system. After denying the State’s petition for reconsideration, the Court issued an amended opinion omitting the footnote. Thus, the import of the article IX uniformity mandate on charter schools remains unsettled.

In response to the Court’s opinion in League of Women Voters invalidating Initiative 1240, the Washington State Legislature passed the Charter Public School Act (the CPSA). The CPSA establishes a system of charter schools outside the common school system. Because the Washington State Supreme Court has not yet considered a challenge to charter schools under the article IX "general and uniform mandate," it is unclear whether charter schools—which are relatively free from regulation and focused on providing alternative and varied learning experiences—can fit within a general and uniform system of public schools.

This Comment argues that the uniformity requirement in article IX, section 2 of the Washington State Constitution requires the legislature to establish a uniform system of laws by which the public schools are administered. Although cases interpreting the article IX uniformity mandate emphasize the substantive uniformity of the schools themselves, the text of the Constitution, the structure of the public school system, and interpretations advanced in other contexts support a procedure-based interpretation. Because a procedurally uniform system does not necessarily require identical schools, this Comment argues that the charter school system established under the CPSA fits within the general and uniform system of public schools.

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Asti Gallina 92 Wash. L. Rev. 371

Searching for the Appropriate Standard: Stops, Seizure, and the Reasonable Person’s Willingness to Walk Away from the Police

Searching for the Appropriate Standard: Stops, Seizure, and the Reasonable Person’s Willingness to Walk Away from the Police

March 21, 2017 | 92 Wash. L. Rev. 425

Abstract: A person is “seized” by an officer, and thus entitled to Fourth Amendment protections, if a reasonable person would not feel free to leave. Although courts must set a standard for when a person has been seized by an officer, few real-world studies exist regarding when individuals feel truly free to disregard the police. In addition, gathering new data poses challenges. This Comment presents newly produced data sets and then explores adjustments to the current reasonable person standard, arguing the advantages of focusing on officer actions as opposed to the current focus on whether a defendant feels “free to leave.”

This Comment begins with an overview of the standards set by the United States Supreme Court and the Supreme Court of Washington regarding when a reasonable person would feel free to terminate a police interaction. Next, the Comment discusses nuances and exceptions seen within other reasonable person standards. The Comment then reviews the psychological and social science research regarding laypersons’ difficulty resisting authority figures. David Kessler’s 2009 study—indicating that most respondents feel uncomfortable refusing to cooperate with police, even during “social” interactions—receives in-depth attention.

This Comment next presents an original study that asks two population samples the Kessler questions. Neither result precisely mirrors the Kessler study result. Washington voter survey respondents indicated a higher comfort refusing the police than hypothesized; recovery center survey respondents provided a more bifurcated response pattern to the standard questions and offered qualitative commentary regarding how disabilities may impact an individual’s perceived freedom to leave an officer interaction.

Following the data analysis, the Comment discusses whether courts should add more nuance to the existing reasonable person standard by accounting for potential vulnerabilities within the civilian population. If courts follow this path, they would benefit from the ability to review additional studies before finalizing such updates. The Comment ultimately argues, however, that other jurisdictions should follow Washington’s lead and focus on objective officer actions when determining whether a social contact has evolved into a seizure. Focusing on officer choices will provide more predictable and socially just results than delving into the subjective experience of a hypothetical “reasonable” suspect.

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Desiree Phair 92 Wash. L. Rev. 425

“A Nuanced Approach”: How Washington Courts Should Apply the Filed Rate Doctrine

“A Nuanced Approach”: How Washington Courts Should Apply the Filed Rate Doctrine

March 21, 2017 | 92 Wash. L. Rev. 481

Abstract: As of 2015, the vast majority of the American public had some form of health insurance, mostly provided by private companies. While some customers might, at some point, contemplate suing their insurance provider—for breach of contract, consumer protection statute violation, or some other cause—these potential plaintiffs are not likely to get far in many cases. The reason is the little-known “filed rate doctrine,” a court-created rule that bars lawsuits against many agency-regulated entities. The filed rate doctrine is based on the fact that many states, including Washington, require health insurers to file their rates with a regulatory agency—and have those rates approved—before they can start charging customers. Because companies get their rates approved by these regulatory agencies, courts invoke the filed rate doctrine to prevent plaintiffs from bringing actions that seek to “challenge” these agency-approved rates. Some courts, however, have stretched the filed rate doctrine too far, relying on the doctrine to dismiss breach of contract and state consumer protection act claims that do not challenge the actual rate paid.

In a recent Washington case, the Washington State Supreme Court left open the question of whether it would broadly construe the filed rate doctrine and adopt a rule that applies the doctrine to cases that are only tangentially related to agency-approved rates. This Comment seeks to address this gap in the Washington case law and argues that Washington courts should not apply the filed rate doctrine to cases involving health insurers where the plaintiffs do not allege that their rates are too high. First, this Comment describes the current health insurance regulatory framework in Washington, Oregon, and California and the application of the filed rate doctrine in those states. It then argues why, in Washington in particular, courts should use—as the Washington Court of Appeals recently described it—a “nuanced approach” in their application of the filed rate doctrine, not using it to bar breach of contract or Washington Consumer Protection Act claims, but keeping it to its original purpose: to prevent lawsuits that seek to challenge the actual rate paid.

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Kaleigh Powell 92 Wash. L. Rev. 481
Title Author Citation

W(h)ither the Tax Gap?

W(h)ither the Tax Gap?

June 19, 2017 | 92 Wash. L. Rev. 521

Abstract: For decades, policy makers and politicians have railed against the “tax gap,” or the difference between what taxpayers are legally obligated to pay in taxes and what they actually pay in taxes. To close the gap, Congress has instituted numerous reforms with varying degrees of success. Notwithstanding these efforts, the tax gap has largely remained intact, and, if anything, it has gradually grown over the last several decades.

However, the tax gap may well begin to diminish in size (or “wither” away), if not immediately then over time. Three developments will help narrow the tax gap’s size. First, the ubiquity of credit cards, debit cards, and smartphone payment apps has purged cash—the erstwhile driving engine of the tax gap—from its use in many economic transactions. Second, the availability of third-party sources of information, combined with the universal use of computerization to store, access, and analyze information, has significantly curtailed a taxpayer’s ability to hide income here in the United States or overseas. Third, broad economic trends such as concentration and globalization have generated a workforce dynamic in which taxpayers generally are employed by large business enterprises (where individual tax compliance is fairly high) rather than in traditional mom-and-pop businesses (where individual tax compliance is typically low).

The implications associated with a lower tax gap are vast. Even beyond the usual considerations associated with greater tax compliance (e.g., increased revenues, reduced noncompliance-induced inefficiencies, and improved horizontal and vertical equity of tax burdens), taxpayers would experience a shift in the labor market and an adjustment in the prices paid for consumer goods and services. Also, rather than conducting audits and deterring noncompliance, the Internal Revenue Service (IRS) would be able to dedicate a greater share of its limited resources to other pressing agenda items, such as assisting taxpayers in their compliance endeavors.

There are, of course, other countervailing economic trends that may subvert the forces that will act to reduce the tax gap, so its future path remains highly uncertain (and hence the alternative use of “whither”). Also, for a whole host of reasons, especially reductions in IRS funding, the tax gap will not be closed anytime soon. Nevertheless, the tide against tax noncompliance may finally be turning.

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James Alm & Jay A. Soled 92 Wash. L. Rev. 521

Small Investments, Big Losses: The States’ Role in Protecting Local Investors from Securities Fraud

Small Investments, Big Losses: The States’ Role in Protecting Local Investors from Securities Fraud

June 19, 2017 | 92 Wash. L. Rev. 567

Abstract: The securities regulation landscape has changed dramatically in recent years. Federal laws have increasingly preempted the regulatory power of states, while at the same time expanding the universe of securities offerings that are not subject to registration at the federal level. These political and policy choices reflect a balancing of two sometimes competing goals: protecting investors and facilitating capital formation. While policies centered on preemption and deregulation might reduce the cost of raising capital, these could also lead to more pervasive securities fraud. Any resulting increase in fraudulent practices is likely to disproportionately affect small securities offerings that are local in nature, for which the deterrent effect of private securities litigation and public enforcement is weaker. This places unsophisticated and non-wealthy investors, those less capable to absorb financial losses, at a disproportionate risk of fraud. From a broader economic perspective, the social welfare implications of such fraudulent securities offerings may be significant even when the amounts involved in each individual transaction appear to be relatively trivial to the casual observer.

This Article identifies and theorizes the under-regulation of small-scale securities transactions that results from the confluence of federal preemption and the weakness of traditional enforcement mechanisms that are better suited to large-scale fraud. This Article is also the first to identify and analyze the economic and policy implications of two existing and potential trends in state regulation that might mitigate this state of affairs. In the last two decades, a growing number of states have broadened the remedies available to their securities commissioners in administrative actions to include the ability to request or order restitution on behalf of injured investors. The second trend is at a more nascent stage. Recently, some states have experimented with public insurance-type schemes that allow defrauded investors to recover a portion of their losses. The renewed emphasis on compensating victims of fraud highlighted by these developments is encouraging, but more states should follow suit. To that end, this Article makes a series of normative suggestions to improve the effectiveness of these state legislative responses and to promote their more widespread adoption.

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Carlos Berdejó 92 Wash. L. Rev. 567

The Canons of Construction for Choice-of-Law Clauses

The Canons of Construction for Choice-of-Law Clauses

June 19, 2017 | 92 Wash. L. Rev. 631

Abstract: Over the past half-century, courts in the United States have developed canons of construction that they use exclusively to construe choice-of-law clauses. These canons are consistently applied by state and federal courts. They play an important role in determining the meaning of choice-of-law clauses and, by extension, the law that will be applied to resolve disputes that come before the courts. To date, however, these canons have attracted relatively little attention in the academic literature.

This Article aspires to fill that gap. It develops the first taxonomy of these canons, which fall into one of two families. The first consists of the lexical canons. These canons assign meaning to words and phrases that commonly appear in choice-of-law clauses. The second consists of the canons relating to scope. These canons determine whether the law selected by the parties applies exclusively to contract claims or whether it also applies to related tort and statutory claims. The Article then draws upon interviews and e-mail exchanges with practicing attorneys in an attempt to determine empirically whether these canons generate outcomes that are consistent with the preferences of most contracting parties. It shows that some do and others do not. When a particular canon regularly produces outcomes that are inconsistent with majoritarian preferences, the Article argues that the courts should cast it aside. The Article concludes by addressing how to resolve conflicts among the canons when they arise.

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John F. Coyle 92 Wash. L. Rev. 631

Making It Work: Tribal Innovation, State Reaction, and the Future of Tribes as Regulatory Laboratories

Making It Work: Tribal Innovation, State Reaction, and the Future of Tribes as Regulatory Laboratories

June 19, 2017 | 92 Wash. L. Rev. 713

Abstract: This Article examines a growing phenomenon: even as the Supreme Court has steadily contracted the scope of tribes’ regulatory authority, many tribes have in recent years passed innovative laws and ordinances, often extending well beyond any comparable initiatives at the state or local level. Recently, for example, the Navajo Nation passed a comprehensive taxation scheme designed to discourage the consumption of unhealthy food items and to subsidize the purchase of healthy ones—a scheme far more ambitious than the soda tax efforts that have stalled in many cities and states. Likewise, amid national controversy over marijuana legalization, the Flandreau Santee Sioux Tribe sought to open a “marijuana resort” in a state with strict anti-marijuana policies; meanwhile, other tribes have moved in the opposite direction, banning on-reservation use of drugs and alcohol even where it would be allowable under state law.

Yet while we are accustomed to thinking of states as Brandeisian laboratories of democracy that pioneer innovations from which other jurisdictions can benefit, no ready model exists for how states and tribes should interact within the realm of regulatory experimentation. In practice, state reactions to tribal innovations have ranged from indifference to hostility to imitation, and few doctrines or practices exist to mediate issues that may arise from state-tribal regulatory conflict. Against this unsettled backdrop—which includes 2016’s inconclusive Supreme Court decision in Dollar General Corp. v. Mississippi Band of Choctaw Indians—this Article explores what contribution tribal regulation can and should make to the larger patchwork of regulatory innovation among states. It attempts, first, to survey some notable instances in which tribes have engaged in regulatory experimentation. It then considers the ways in which tribal innovation has affected and been affected by neighboring states, and the degree to which these effects resemble comparable dynamics in the interstate context. It closes by recommending several policies—among them tribal autonomy, clear delineation of tribal and state law’s respective territorial scope, and possible federal involvement—that may serve to foster a productive climate in which states and tribes can mutually influence and learn from each other.

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Katherine Florey 92 Wash. L. Rev. 713

Class Conflicts

Class Conflicts

June 19, 2017 | 92 Wash. L. Rev. 785

 Abstract: The approach of the twentieth anniversary of the Supreme Court’s landmark decision in Amchem Products, Inc. v. Windsor provides the opportunity to reflect on the collapse of the framework it announced for managing intra-class conflicts. That framework, reinforced two years later in Ortiz v. Fibreboard Corp., was bold, in that it broadly defined actionable conflicts to include divergent interests with regard to settlement allocation; market-based, in that it sought to regulate such conflicts by harnessing competing subclass counsel’s financial incentives; and committed to intrinsic process values, insofar as, to assure structural fairness, the Court was willing to upend a settlement that would have solved the asbestos litigation crisis. Since the 1990s, the lower federal courts have chipped away at the foundation of that conflicts management regime by limiting Amchem and Ortiz to their facts, narrowly defining the kinds of conflicts that warrant subclassing, and turning to alternative assurances of fairness that do not involve fostering competition among subclass counsel. A new model of managing class conflicts is emerging from the trenches of federal trial courts. It is modest, insofar as it has a high tolerance for allocation conflicts; regulatory, rather than market or incentive-based, in that it relies on judicial officers to police conflicts; and utilitarian, because settlement outcomes provide convincing evidence of structurally fair procedures. In short, the new model is fundamentally the mirror image of the conflicts management framework the Court created at end of the last century. This Article provides an institutional account of this transformation, examining how changes in the way mass tort and other large-scale wrongs are litigated make it inconvenient to adhere to the Supreme Court’s twentieth century conflicts management blueprint. There is a lesson here: a jurisprudential edifice built without regard to the practical realities of resolving large-scale litigation cannot stand.

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Morris A. Ratner 92 Wash. L. Rev. 785

Parental Abduction and the State Intervention Paradox

Parental Abduction and the State Intervention Paradox

June 19, 2017 | 92 Wash. L. Rev. 861

Abstract: For most of America’s history, the common law deemed the family a “private sphere” into which the government did not enter. In recent decades, however, the state has increasingly regulated the family in overprotective and overly punitive ways. Many current state interventions in the family are misdirected, penalizing abuse victims and intervening in undesired ways that create harm while failing to respond to pleas for help.

A prime area in which the state paradoxically remains laissez-faire concerns the phenomenon of parental abduction, a pervasive and devastating problem that has received scant attention due to the socio-legal focus on stranger danger. Law enforcement and civil and criminal justice systems continue to regard a parent’s abduction of a child as a private family matter, and abusive abductors are generally not pursued or penalized despite existing laws and the harm children and left-behind parents suffer. This Article exposes the problem of domestically abusive abductors, utilizes social science data to demonstrate the state’s failure to implement relevant laws, and features a fifty-state survey that reveals areas for reform. The Article seeks to explain discrepancies in state interventions in the family and the state’s bifurcated treatment of the family, particularly surfacing the state’s racialized, gendered, and class-based intervention practices. Solutions are offered that avoid the current hyper-criminalization trend, respond to victimized parents’ and abducted children’s pleas for help, and strive to remedy what many abducted children and left-behind parents experience as the ultimate abuse.

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Jane K. Stoever 92 Wash. L. Rev. 861

Traditional Ecological Disclosure: How the Freedom of Information Act Frustrates Tribal Natural Resource Consultation with Federal Agencies

Traditional Ecological Disclosure: How the Freedom of Information Act Frustrates Tribal Natural Resource Consultation with Federal Agencies

June 19, 2017 | 92 Wash. L. Rev. 937

Abstract: When a federal or state agency administers environmental laws, such as the Endangered Species Act, the agency often consults with tribes. During these consultations, tribes often disseminate traditional ecological knowledge (TEK)—knowledge acquired by a tribe that is a mix of environmental ethics and scientific knowledge about tribal use. However, these consultations may be susceptible to disclosure under the Freedom of Information Act (FOIA). The purpose of FOIA is to inform the public. Because TEK often contains sensitive information about tribal social, cultural, psychological, and economic factors, tribes do not want this information available to those who are not members of a tribe. For example, a tribe may not want historic fishing sites to be disclosed to the public, but information on those sites could be useful for fisheries management. The combination of FOIA and tribal consultation results in a Hobson’s choice for tribes—take a seat at the environmental regulatory table and risk disclosing proprietary information or lose their seat at the environmental regulatory table. This Comment explores the dichotomy between the purposes of FOIA and the protection of tribal culture and knowledge. This Comment then examines the inadequacies of the current FOIA exemptions when applied to protecting tribal information. Additionally, this Comment looks to past attempts at providing legislative reform to protect tribal information and argues that legislative reform is the most appropriate course of action because it can provide a broader protection for tribes.

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Sophia E. Amberson 92 Wash. L. Rev. 937

Anything but Common: New York’s “Pending or Anticipated Litigation” Limitation to the Common Interest Doctrine Creates More Problems than It Solves

Anything but Common: New York’s “Pending or Anticipated Litigation” Limitation to the Common Interest Doctrine Creates More Problems than It Solves

June 19, 2017 | 92 Wash. L. Rev. 983

Abstract: New York’s highest court recently handed down Ambac v. Countrywide, a decision that has major ramifications in the mergers and acquisitions (M&A) world. Once parties sign a merger or acquisition agreement, they share a common interest in ensuring that both parties comply with applicable laws, a process that requires legal communications with each other’s attorneys. Under the common interest doctrine, Delaware and the majority of federal circuits apply the attorney-client privilege to shield many of these communications from discovery. However, Ambac upset M&A attorneys’ reliance on the common interest doctrine by holding that parties to a merger waive their attorney-client privilege when they share legal advice with the other entity’s attorneys, unless the communications relate to pending or anticipated litigation. In addition to the M&A world, Ambac will have negative consequences for many business entities attempting to comply with the law on advice from counsel during major transactions. While a number of commentators have addressed the litigation requirement tangentially, there is currently no thorough evaluation of the state of this requirement, which has special relevance in the post-Ambac world. This Comment evaluates the history and purpose of the common interest doctrine and surveys the current state of the law across multiple jurisdictions. This Comment then argues that Ambac’s litigation requirement is contrary to the purpose of the attorney-client privilege—to encourage persons and entities to freely seek legal advice in order to comply with the law. Finally, this Comment urges the many jurisdictions with underdeveloped law on the common interest doctrine to reject Ambac’s restrictive litigation requirement.

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Eric A. Franz 92 Wash. L. Rev. 983

Third Party Consent and Container Searches in the Home

Third Party Consent and Container Searches in the Home

June 19, 2017 | 92 Wash. L. Rev. 1029

Abstract: Circuit courts disagree as to whether law enforcement officers have a duty to inquire about a resident’s actual authority to consent to searches of ambiguous containers in a common area. Two circuit courts use the ambiguity approach and two circuit courts use the obviousness approach. The ambiguity approach articulated by the D.C. Circuit in United States v. Peyton provides protection for individuals’ rights while placing a minimal burden on law enforcement officers. In Peyton, the D.C. Circuit held that law enforcement officers have a duty to ask clarifying questions if ownership over a container is ambiguous. The ambiguity approach advanced by the Peyton court is a well-balanced approach to handling third party consent cases. The obviousness approach, which allows officers to search any containers that do not obviously belong to someone other than the consenting party, gives too much power to police and may infringe on the absent tenant’s reasonable expectation of privacy. The ambiguity approach is superior to the obviousness approach, but to properly safeguard Fourth Amendment rights, the Supreme Court should adopt a bright-line rule requiring law enforcement officers to inquire before searching any container in a common area, regardless of the level of ambiguity. This solution will reduce the administrative costs of case-by-case inquiry into the amorphous concept of ambiguity and advance the common law tradition of protecting the privacy of individuals in their home.

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Harlan Thomas Mechling 92 Wash. L. Rev. 1029

Employee, Volunteer, or Neither? Proposing a Tax-Based Exception to FLSA Wage Requirements for Nonprofit Interns After Glatt v. Fox Searchlight

Employee, Volunteer, or Neither? Proposing a Tax-Based Exception to FLSA Wage Requirements for Nonprofit Interns After Glatt v. Fox Searchlight

June 19, 2017 | 92 Wash. L. Rev. 1071

Abstract: The Fair Labor Standards Act (FLSA) mandates compliance with various requirements, including minimum wages, for individuals classified as “employees.” But courts have grappled with the definition of “employee” for decades. They have struggled to determine whether individuals who are not classified as employees by their employer and are instead labeled “trainees,” “interns,” “externs,” or otherwise must be paid fair wages under the FLSA. This question became more pronounced amid the rise of unpaid internships for students and recent graduates in the post-2008 recession years. In Glatt v. Fox Searchlight, the Second Circuit became the first federal court of appeals to specifically address the unpaid intern issue in the context of for-profit employers, holding that interns were employees if the employer received the “primary benefit” from the relationship. The case did not touch on unpaid nonprofit internships, which some scholars believe are—and should be—exempt from employee tests under a broad nonprofit exception. However, recent scholarship exploring the Second Circuit’s logic in Fox Searchlight indicates that unpaid nonprofit internships may not be so safe for employers after all, and suggests that these internships should not be exempt from FLSA requirements for public policy reasons.

This Comment argues that some, but not all, nonprofits deserve differential treatment with regard to internships given their budgetary constraints and the important role they play in society. It attempts to balance the policy concerns on both sides of the issue by proposing three narrow exceptions which track the Internal Revenue Code’s treatment of nonprofit organizations: one for interns supporting exempt purpose activities; another for interns working at organizations classified as public charities; and the last for interns at small nonprofits, as determined by their annual tax filing. This tax-based approach would be easy for nonprofits to apply and current law supports it. Finally, this Comment calls for legislative action to amend and clarify the FLSA by adopting one of these three exceptions.

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Jane Pryjmak 92 Wash. L. Rev. 1071
Title Author Citation

Dignity, Inequality, and Stereotypes

Dignity, Inequality, and Stereotypes

October 03, 2017 | 92 Wash. L. Rev. 1119

Abstract: In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that lesbians and gays are inferior to heterosexuals. Second, they unequally deny lesbian and gay individuals the liberty to make fundamental decisions about identity and self. These two conjoined themes—anti-group subordination and pro-individual liberty—comprise the two pillars of “equal dignity” that anchor Obergefell’s holding. This Article proposes that these pillars also support the Court’s anti-stereotyping jurisprudence, and equal dignity is thus one important aspect of what the Equal Protection Clause protects. To illustrate: in sex discrimination cases, courts reject state stereotyping when it perpetuates ideas about men’s and women’s roles and reinforces women’s inferior social status; in transgender and sexual orientation discrimination cases, courts have begun to protect LGBTQ individuals from state demands for conformity to normative stereotypes about how to be a man or woman.

Protecting individuals’ equal dignity can sometimes become complicated when the reasons for addressing a group’s purported needs elide individual concerns and attachments. For example, the government sometimes relies on normative and statistical information about groups to combat group-associated health and poverty risks, to remedy individual disparate treatment, and to prevent wholesale group exclusion from opportunities and civic duties. Addressing these group-based needs, however, may effectively perpetuate stereotypes about what group membership means. Individual group members may object to the identitarian implications of the government’s help.

Not all stereotyping both subordinates a group and denies individuals the liberty to be and express who they are. Accordingly, stereotyping is not wrong in and of itself; how the government uses stereotypes should determine whether state action violates the Equal Protection Clause. Counterintuitively, stereotyping can sometimes promote rather than deny equal dignity. While any state reliance on stereotypes risks essentializing identity, an absolute stereotyping prohibition exacerbates certain forms of race, sex, and sexual orientation blindness. Groups are important, and the government requires some flexibility to address group-based needs.

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Luke A. Boso 92 Wash. L. Rev. 1119

Adjudicating Religious Sincerity

Adjudicating Religious Sincerity

October 03, 2017 | 92 Wash. L. Rev. 1185

Abstract: Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility of a claimant’s religious beliefs, it may adjudicate whether the claimant holds those beliefs sincerely.

Unfortunately, Burwell v. Hobby Lobby introduced confusion. The majority opinion appears to conflate the requirement that a claimant be sincere with the requirement that the claimant show that the government has “substantially burdened” the claimant’s religious exercise. The dissenting opinion, by contrast, suggests that courts simply may not adjudicate religious sincerity. The first of these mistakes muddies the water about the relationship between sincerity and the other elements of a religious accommodation claim; the second illustrates the ongoing confusion for many jurists and scholars about the constitutional concerns surrounding an inquiry into a claimant’s religious sincerity.

This Article attempts to defend and clarify the sincerity requirement. Against the scholarly consensus, it argues that courts can and should adjudicate an accommodation claimant’s religious sincerity. Insincere claims impose costs on the government, third parties, and religious liberty itself. Courts can adjudicate sincerity, and reduce these costs, without violating the Establishment Clause. The Constitution’s “no-orthodoxy principle” should be understood to prohibit a court from inferring that a claimant is insincere merely because the claimant’s religious belief is implausible. Otherwise, a court should evaluate a claimant’s sincerity by applying the ordinary rules of evidence. Moreover, when the claimant’s sincerity is not in issue, a court should resist allowing its suspicion to affect the rest of its legal analysis. Finally, the Article clarifies the distinctions between whether a claimant is sincere, whether the claim is based on religious exercise, and whether the government has imposed a substantial burden on that exercise.

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Nathan S. Chapman 92 Wash. L. Rev. 1185

Nudging Patient Decision-Making

Nudging Patient Decision-Making

October 03, 2017 | 92 Wash. L. Rev. 1255

Abstract: Rational choice theory once pervaded the law. But we now know that individuals often make decisions that are not in their best interests. Many areas of the law have responded accordingly. The law of health care decision-making, however, has not.

With limited exception, patients have the right to make their own medical decisions about their treatment, even if they make bad decisions. And there is ample evidence from the behavioral sciences that they do make bad decisions. Patients lack the stable preferences that the law assumes they will draw upon in making decisions, and they suffer from a number of systematic decision-making biases. Bad decision-making negatively impacts the individual, but also the entire health care system that must bear the cost of poor decisions. Patient choice nonetheless remains a hallmark of legal doctrine.

This Article challenges the myopic approach that solely values autonomy to the detriment of well-being. It proposes that both doctors and patients instead be nudged toward the welfare-maximizing treatment choice by the establishment of a treatment default. A right to opt-out still protects autonomy, but the default will move most patients toward better decisions—those that data suggest will most increase patient well-being. We should no longer accept a regime that delegates the complex task of decision-making to often vulnerable patients without regard to their well-being.

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Wendy Netter Epstein 92 Wash. L. Rev. 1255

Pre-Enforcement Litigation Needed for Taxing Procedures

Pre-Enforcement Litigation Needed for Taxing Procedures

October 03, 2017 | 92 Wash. L. Rev. 1317

Abstract: Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance’s procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an audit and completed an internal IRS appeal process. This delay in the ability to challenge guidance reduces the likelihood taxpayers will challenge the procedure used to create a particular rule. Moreover, delayed litigation requires taxpayers to plan their affairs under the umbrella of guidance that might not survive a procedural challenge. To the extent procedural challenges are accepted in the tax context, this Article argues Congress should narrowly repeal its prior limitations on pre-enforcement litigation of those procedures. Everyone affected by the guidance should be permitted to litigate procedural questions for a period of time post-promulgation without the necessity of being found to owe taxes. This narrow exception would increase the certainty of tax guidance and encourage greater public participation in the guidance-formation process in a way that is sensitive to the fact that litigation imposes costs on the Treasury Department.

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Stephanie Hunter McMahon 92 Wash. L. Rev. 1317

What’s (Still) Wrong with Credit Ratings?

What’s (Still) Wrong with Credit Ratings?

October 03, 2017 | 92 Wash. L. Rev. 1407

Abstract: Scholars and regulators generally agree that credit rating agency failures were at the center of the recent financial crisis. Congress responded to these failures with reforms in the 2010 Dodd-Frank Act. This Article demonstrates that those reforms have failed. Instead, regulators have thwarted Congress’s intent at every turn. As a result, the major credit rating agencies continue to be hugely profitable, yet generate little or no informational value. The fundamental problems that led to the financial crisis—overreliance on credit ratings, a lack of oversight and accountability, and primitive methodologies—remain as significant as they were before the financial crisis. This Article addresses each of these problems and proposes several solutions.

First, although Congress attempted to remove credit rating agency “regulatory licenses,” the references to ratings in various statutes and rules, regulatory reliance on ratings remains pervasive. This Article shows that regulated institutions continue to rely mechanistically on ratings and demonstrates that regulations continue to reference ratings, notwithstanding the Congressional mandate to remove references. This Article suggests several paths to reduce reliance.

Second, although Congress authorized new oversight measures, including an Office of Credit Ratings (OCR), that oversight has been ineffective. Annual investigations have uncovered numerous failures, many in the same mortgage-related areas that precipitated the financial crisis, but regulators have imposed minimal discipline on violators. Moreover, because regulators refuse to identify particular rating agencies in OCR reports, wrongdoers do not suffer reputational costs. This Article proposes reforms to the OCR that would enhance its independence and sharpen the impact of its investigations.

Third, although Congress authorized new accountability measures, particularly removing rating agencies’ exemptions from liability under section 11 of the Securities Act of 1933 and Regulation FD, the Securities and Exchange Commission has gutted both of those provisions. The SEC performed an end-run around Dodd-Frank’s explicit requirements, reversing the express will of Congress. Litigation has not been effective as an accountability measure, either, in part because rating agencies continue to assert the dubious argument that ratings are protected speech. This Article argues that the SEC should reverse course and implement Congress’s intent, including encouraging private litigation.

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Frank Partnoy 92 Wash. L. Rev. 1407

Breaking Down Bias: Legal Mandates vs. Corporate Interests

Breaking Down Bias: Legal Mandates vs. Corporate Interests

October 03, 2017 | 92 Wash. L. Rev. 1473

Abstract: Bias and discrimination continue to limit opportunities and outcomes for racial minorities in American institutions in the twenty-first century. The diversity rationale, touting the broad benefits of inclusion, has become widely accepted by corporate employers, courts, and universities. At the same time, many view a focus on antidiscrimination law and the threat of legal enforcement as outmoded and ineffective. Thus, many organizations talk less in terms of the mandates of laws such as the 1964 Civil Rights Act, or a “legal case,” and more in terms of a “business case” where benefits of inclusion seem to accrue to everyone. It is easy to explain the appeal of the business case for diversity: it merges the goals of racial inclusion with business profitability and corporate interests. Antidiscrimination law, by contrast, is viewed as top down and coercive. But there is one major problem: there is little-to-no evidence that the business case for diversity actually reduces bias and promotes racial inclusion.

In this Article, I present experimental research findings that for the first time test the relative efficacy of the business case rationale versus a legal case for equity and inclusion. I find that inclusion efforts grounded in antidiscrimination law, or the legal case, are the most likely to curb widely held biases and promote equitable behavior. These findings challenge emerging scholarship that suggests legal justifications for integration are no longer effective. Despite the appeal of the business case for diversity, emphasis on corporate interests actually generate negative beliefs about inclusion and more biased decision making. Civil rights law, with a deeper historical, political, and moral grounding, appears to exert a stronger normative influence. Based on these findings, this Article argues that antidiscrimination law is still needed, not only for its exogenous pressure on organizations to promote inclusion but also for its normative effect on individual values, beliefs about inequality, and behavior.

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Jamillah Bowman Williams 92 Wash. L. Rev. 1473

A Natural Progression of Restrictive Immunity: Why the JASTA Amendment Does Not Violate International Law

A Natural Progression of Restrictive Immunity: Why the JASTA Amendment Does Not Violate International Law

October 03, 2017 | 92 Wash. L. Rev. 1515

Abstract: On September 11, 2001, terrorists from extremist group al-Qaeda hijacked four commercial flights and flew two into the World Trade Center towers in New York City and one into the Pentagon in Washington, D.C. Many sought justice for friends and loved ones harmed in the attacks by bringing lawsuits against Saudi Arabia. These lawsuits alleged that Saudi Arabian leaders knowingly donated to charities that funded al-Qaeda which helped the group to pay for the September 11th terror attacks. The Second Circuit, however, dismissed the lawsuit on sovereign immunity grounds in 2008. Frustrated with the ruling, Congress passed the Justice Against Sponsors of Terrorism Act (JASTA). JASTA amended the Foreign Sovereign Immunities Act to allow lawsuits against foreign states when the plaintiffs allege the foreign state intentionally funded, sponsored, or facilitated intentional acts of terrorism on United States soil. This amendment has received global criticism for both its practical and legal effect on the rest of the world. The harshest critics claim that the United States is now in violation of international law, bolstered by a recent decision from the International Court of Justice (ICJ), Jurisdictional Immunities of the State. This Comment argues that the JASTA amendment to sovereign immunity does not violate international law or the ICJ decision. Due to the development of state immunity and the particular protections provided to sovereign acts in the ICJ decision, the JASTA amendment only denies state immunity when the foreign state is acting as a private citizen. Therefore, the JASTA amendment does not violate international law.

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Eric T. Kohan 92 Wash. L. Rev. 1515

An Uncommon Carrier: The FCC’s Unintended Effects on Constitutional Use Taxation

An Uncommon Carrier: The FCC’s Unintended Effects on Constitutional Use Taxation

October 03, 2017 | 92 Wash. L. Rev. 1571

Abstract: The constitutional use taxation framework, which regulates the circumstances under which states can require out-of-state sellers to collect and remit use taxes on products sold for use within the state, has not been examined by Congress or the Supreme Court since the 1990s, and then only to reaffirm a rule that had been in place since the 1960s. Since the 1960s, the Supreme Court has held that states can only collect use taxes from sellers that have a physical presence within the state and whose connections to the state are beyond connections via common carriers. The Court interpreted this rule in the context of mail-order businesses in order to prevent states from taxing retailers that were simply mailing merchandise into the state, which the Court reasoned did not significantly use state resources. This bright-line rule has created settled expectations that businesses will not be subject to use taxation in a state where they do not have a physical presence, and where their only contacts with the state are through mail or common carrier.

In 2013, the New York State Court of Appeals deviated from the first half of this rule by holding that internet advertisers that were paid commission could constitute a “physical presence” that could subject a business to use taxation. The Supreme Court denied certiorari, and this decision reinvigorated the debate about what “physical presence” means in the modern economy.

The second half of the rule, that sellers must have connections with a state beyond connections through a “common carrier,” has traditionally not required much analysis by courts or legal scholars, since historically, a physical presence, by definition, provided a relationship with a state beyond one established exclusively through common carriers. In 2015, however, the Federal Communications Commission designated internet service providers as common carriers. This Comment argues that internet service providers’ common carrier designation precludes states from collecting use taxes from out-of-state sellers whose only connections with the state are through the internet, as was the case in New York. Furthermore, this Comment explores the implications of the policy goals of the new executive administration under Donald Trump, which has initiated the reversal of the internet’s classification as a common carrier. A reversal of the Federal Communications Commission’s rule would conceivably reinstate the internet as a means through which sellers would be able to establish a physical presence within a state.

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Maricarmen Perez-Vargas 92 Wash. L. Rev. 1571

Quick, Stop Hiring Old People! How the Eleventh Circuit Opened the Door for Discriminatory Hiring Practices Under the ADEA

Quick, Stop Hiring Old People! How the Eleventh Circuit Opened the Door for Discriminatory Hiring Practices Under the ADEA

October 03, 2017 | 92 Wash. L. Rev. 1605

Abstract: Do not discriminate against older persons. It seems like a simple mandate. However, the statute creating that mandate, the Age Discrimination in Employment Act (“ADEA”), has been anything but simple to implement. The details of the ADEA—who can bring a claim, and what kind of claim they can bring—have been extensively litigated since its inception. In 2016, the Eleventh Circuit, sitting en banc, decided that an employer could discriminate against older applicants by having a policy of not hiring people who have been out of college for a certain number of years, or who have a certain number of years of work experience. This has created a rift within that circuit and is a departure from the governing agency’s interpretation. This Comment explores the case law and legislative history leading up to the critical Eleventh Circuit case, Villarreal v. R.J. Reynolds Tobacco Co., which addresses the following question: can applicants for employment bring disparate impact claims under the ADEA? This Comment argues that the Supreme Court should hold that the ADEA does cover applicants for employment making disparate impact claims and that arbitrary agebased hiring policies are discriminatory. Regardless of any Supreme Court decision on the question, this Comment also suggests that Congress should amend the ADEA to include language that would allow applicants for employment to bring disparate impact claims, bringing the ADEA in line with Title VII.

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Samantha Pitsch 92 Wash. L. Rev. 1605
Title Author Citation

Customary International Law in United States Courts

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.

This approach would mirror the way in which courts apply U.S. treaties and other international agreements—treating them as matters of federal law but applying their provisions in U.S. courts only to the extent authorized by the political branches. The intentions of the political branches regarding application of particular rules of customary international law by U.S. courts can be deduced from a number of indicia, analogous to those applied to determine whether particular treaty provisions are self-executing; these include the content and character of the relevant rule of international law, statements by the Executive or Legislative branch, and the content, character, and historical treatment of related rules of international law.

The position proposed in this Article produces materially different results from either the modernist or the revisionist approaches. In many cases, the analysis proposed in this Article will lead to the conclusion that particular customary international law rules—such as head of state or consular immunity and attribution of state responsibility—are directly applicable in U.S. courts, notwithstanding the absence of express authorization by the political branches. In other cases, including many emerging human rights protections, this analysis will lead to a conclusion that particular rules of customary international law are not applicable in U.S. courts.

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Gary Born 92 Wash. L. Rev. 1641

Welfare and Federalism’s Peril

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.

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Andrew Hammond 92 Wash. L. Rev. 1721

The New Sister-State Sovereign Immunity

The New Sister-State Sovereign Immunity

December 20, 2017 | 92 Wash. L. Rev. 1771

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.

But the Article breaks from most scholarship. It suggests that the Court went too far in Nevada v. Hall (1979) in finding that nothing in the Constitution compels states to respect sister-state claims to sovereign immunity. But it does not endorse those critics who find absolute state immunity in policies of federalism. Instead it proposes a limited constitutional basis for sister-state immunity that grounds this immunity in territorial restrictions on judicial power that operated during the founding era. Under the proposed approach, states would enjoy sovereign immunity in a sister-state court—but only for acts they or their agents commit in their own territory. The Article explains how this limited immunity accommodates the competing interests of the states, and why it is superior to alternative proposals to ground sister-state immunity in international law.

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Michael H. Hoffheimer 92 Wash. L. Rev. 1771

Orwell’s 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test

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.

A cybersurveillance nonintrusion test implicitly suggested by the Supreme Court in United States v. Jones first shifts the vantage point of the Fourth Amendment analysis from an individual-based tangible harm inquiry to an inquiry of a society-wide intangible harm—whether the modern surveillance method creates a “1984 problem” for society. A cybersurveillance nonintrusion test requires the government to justify the intrusion of the surveillance on society. A new test would remediate increasingly ineffective Fourth Amendment jurisprudence currently grounded in property and tort law. The Article argues that the adoption of a cybersurveillance nonintrusion test and the abandonment of the current privacy test is not only required; but, in practice, is already used by the federal courts.

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Margaret Hu 92 Wash. L. Rev. 1819

Safeguarding Washington’s Trade Secrets: Protecting Businesses from Public Records Requests

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.

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John Delaney 92 Wash. L. Rev. 1905

The Helicopter State: Misuse of Parens Patriae Unconstitutionally Precludes Individual and Class Claims

The Helicopter State: Misuse of Parens Patriae Unconstitutionally Precludes Individual and Class Claims

December 20, 2017 | 92 Wash. L. Rev. 1955

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.

First, this Comment traces the history of parens patriae as a doctrinal theory and as it has developed in American statutory and common law. Next, it considers the preclusive effect of parens patriae suits on private individual claims and damages class actions. In particular, final judgments issued in parens patriae suits have the potential to bar individuals and entire classes from bringing valid claims under res judicata. Because parens patriae actions are not subject to the same procedural requirements as private class actions, the due process rights of certain individuals are, at times, put in jeopardy. In order to protect individual due process rights, this Comment suggests four possible solutions: courts should (1) heighten the procedural requirements for state aggregate suits, (2) hold that parens patriae suits cannot bind private claimants, (3) join related public and private suits, at least for liability litigation to ensure private claims are not dismissed unfairly, or (4) allow private citizens with claims, either individually or through class representation, to stay a parens patriae action to avoid preclusion.

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Gabrielle J. Hanna 92 Wash. L. Rev. 1955

Nationwide Permit 12 and Domestic Pipelines: An Incompatible Relationship?

Nationwide Permit 12 and Domestic Pipelines: An Incompatible Relationship?

December 20, 2017 | 92 Wash. L. Rev. 1991

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.

Although no statute expressly requires the federal government to conduct environmental analysis of proposed domestic oil pipelines, two statutes—the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA)—generally work in tandem to require the U.S. Army Corps of Engineers (Army Corps or Corps) to complete an analysis when a proposed pipeline crosses regulated waters. However, the Army Corps recently has begun using a general permit called Nationwide Permit 12 (NWP 12) to streamline the approval process by avoiding individual review of pipelines. The Tenth and District of Columbia Circuits upheld the Army Corps’s use of NWP 12 in approving the Flanagan South and Gulf Coast pipelines, rejecting arguments that such use violates the CWA and NEPA. Not only did environmentalists lose both decisions, but the Army Corps also subsequently tightened its analysis to avoid potential future liability.

Despite these setbacks, this Note contends that the battle is not yet over. The Note argues that the Army Corps failed to comply with the CWA’s plain meaning when it issued NWP 12, resulting in a limited opportunity for the public to participate. By limiting public comment, NWP 12 undermines the Corps’s ability to take a hard look at the environmental consequences of proposed oil pipelines. If the agency cannot comply with the CWA’s plain meaning, it can no longer use NWP 12 to avoid individual review of oil pipelines. Given recent judicial precedent, environmentalists face a difficult task. But hope remains. Under the framework first described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the circuit courts are improperly deferring to the Army Corps’s interpretation of the CWA when the statute’s meaning is clear. Judicial recognition and correction of this would be a victory for environmentalists, as it would increase federal environmental review of domestic oil pipelines and provide the public with a better opportunity to voice its concerns over the proliferation of oil pipelines in the United States.

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Alexander S. Arkfeld 92 Wash. L. Rev. 1991
Volume 91
Published 2016
Number 1
Number 2
Number 3
Number 4
Title Author Citation

Hospital Mergers and Economic Efficiency

Hospital Mergers and Economic Efficiency

March 21, 2016 | 91 Wash. L. Rev. 1

Abstract: Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health SystemLtd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the health care sector. First, the Article addresses the question of how best to frame the acquisition of a physician group by a hospital—is the merger horizontal, vertical, or potentially both? In undertaking this analysis the Article examines the broader issue of the treatment of Accountable Care Organizations (ACOs) in antitrust law. ACOs are short of full integration and as such, a potential contractual alternative for hospitals and physician groups to an acquisition. A hospital acquisition of a physician practice also has implications for how to view competitive effects in the context of ACOs. Indeed, in St. Luke’s the Ninth Circuit suggests that integration short of full merger was a possible alternative. Second, the Article examines the justification for integration as a way to address countervailing power in health care, the reduction of transaction costs, and potential cost and quality efficiencies. Third, the Article applies the economics of these issues to merger case law generally and specifically to the St. Luke’s decision. Ultimately, the Article finds the economic analysis of the Ninth Circuit lacking. Finally, the Article offers policy implications of the decision and concludes with some suggestions to improve health care antitrust analysis in practice for litigated cases to make such analysis better follow economic principles.

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Roger D. Blair, Christine Piette Durrance & D. Daniel Sokol 91 Wash. L. Rev. 1

Buyers in the Baby Market: Toward a Transparent Consumerism

Buyers in the Baby Market: Toward a Transparent Consumerism

March 21, 2016 | 91 Wash. L. Rev. 71

Abstract: This Article assesses the forces on the horizon remaking the fertility industry, including greater consolidation in the health care industry, the prospects for expanding (or contracting) insurance coverage, the likely sources of funding for future innovation in the industry, and the impact of globalization and fertility tourism. It concludes that concentration in the American market, in contrast with other medical services, may not necessarily raise prices, and price differentiation may proceed more from fertility tourism than from competition within a single geographic region. The largest challenge may be linking those who would fund innovation, whether innovation that produces new high cost products or innovations making fertility services more accessible and affordable, with the constantly shifting market niches of a globalized era.

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June Carbone & Jody Lyneé Madeira 91 Wash. L. Rev. 71

Why a “Large and Unjustified” Payment Threshold Is Not Consistent with Actavis

Why a “Large and Unjustified” Payment Threshold Is Not Consistent with Actavis

March 21, 2016 | 91 Wash. L. Rev. 109

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Michael A. Carrier 91 Wash. L. Rev. 109

The Law, Economics, and Medicine of Off-Label Prescribing

The Law, Economics, and Medicine of Off-Label Prescribing

March 21, 2016 | 91 Wash. L. Rev. 119

Abstract: There is a major dissonance in the current structure of regulating new drugs that have more than one medical indication. Physicians are authorized to prescribe these drugs for all indications including those beyond their approved purposes. However, product manufacturers are expressly prohibited from marketing or promoting their drugs for any purpose other than those which have been specifically indicated. While prescribing physicians are encouraged to gain medical information on any additional indications, they cannot obtain it from one of its most likely sources: the drug’s supplier.

The Second Circuit Court of Appeals’ recent opinion in United States v. Caronia has challenged this regulatory structure. For the three states in the Second Circuit, although not the rest of the country, the FDA’s regulations prohibiting promotion of non-approved indications have been restricted.

In this Article, we review the legal, economic, and medical aspects of the FDA’s current regulatory approach, and explore the likely consequences of a widespread adoption of the Caronia rule.

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William S. Comanor & Jack Needleman 91 Wash. L. Rev. 119

A Flexible Health Care Workforce Requires a Flexible Regulatory Environment: Promoting Health Care Competition Through Regulatory Reform

A Flexible Health Care Workforce Requires a Flexible Regulatory Environment: Promoting Health Care Competition Through Regulatory Reform

March 21, 2016 | 91 Wash. L. Rev. 147

Abstract: Effective competition policy is critical to the success of U.S. health care reform, including efforts to reduce health care costs, increase quality of care, and expand access to health care services. While promoting competition is necessary at every level of the rapidly evolving health care system, it is particularly important with respect to licensed professionals who provide health care services. This Article argues that the current system of health care professional regulation, born of the last century, is in numerous respects an impediment to the kinds of changes needed to fully unleash the benefits of competition among different types of health care service providers. To the contrary, the current system of licensure and related regulations tends to artificially separate professionals in ways that not only insulate them from competition now, but also generate incentives to use regulation to perpetuate and fortify such insulation in the future. Drawing on analytic principles derived from antitrust law enforcement and other regulated industries, the Article argues that, although some regulation is necessary to protect public health and safety, the legacy regulatory system likely impedes the development of innovative, alternate service models that might facilitate enhanced competition by allowing all professionals to practice to the full extent of their education, licensure, and skill. The Article concludes by proposing a range of reforms that would re-conceptualize the core characteristics and methodology of traditional health care professional regulation.

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Andrew I. Gavil & Tara Isa Koslov 91 Wash. L. Rev. 147

Navigating Through the Fog of Vertical Merger LAW: A Guide to Counselling Hospital-Physician Consolidation under the Clayton Act

Navigating Through the Fog of Vertical Merger LAW: A Guide to Counselling Hospital-Physician Consolidation under the Clayton Act

March 21, 2016 | 91 Wash. L. Rev. 199

Abstract: Lawyers assessing legality under the antitrust laws of hospital acquisitions of physician practices face a quandary. The case law is sparse, federal enforcement guidance outdated, and academic input conflicting. Applying these muddled standards in the rapidly-evolving health care sector only magnifies the uncertainty. While most transactions will be competitively neutral or beneficial, rapidly evolving market conditions causing integration between hospitals and physicians present opportunities for consolidations that may harm consumer interests. Indeed, given the highly concentrated structure of many hospital markets in the nation, preemptive acquisitions of physician practices may be a tempting strategy for some to undermine competition. This Article offers guidance by analyzing potential theories of competitive harm and addressing factual elements necessary to establish a violation of antitrust merger law.

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Thomas L. Greaney & Douglas Ross 91 Wash. L. Rev. 199

Buyer Power and Heathcare Prices

Buyer Power and Heathcare Prices

March 21, 2016 | 91 Wash. L. Rev. 253

Abstract: One major reason why healthcare spending is much higher in America than in other countries is that our prices are exceptionally high. This Article addresses whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. It focuses on two sectors where greater buyer power could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance.

The Article concludes that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. This would likely reduce the prices of many branded drugs substantially without causing a large reduction in innovation. Multiple studies indicate that drug companies have been exceptionally profitable in recent years. As a result, they could lower prices on many drugs and still earn a competitive return on most research and development. Moreover, the incentive to develop important new medicines would remain high because the government would have little leverage over the prices of these drugs. Finally, if problems with innovation develop, payments for new drugs can be increased.

In contrast, encouraging large insurance companies to merge does not appear to be a promising way of lowering healthcare costs. While some large mergers may be procompetitive—lowering both excessive provider prices and insurance premiums—most would present significant competitive risks. They may allow the merged firm to exert monopsony power over small providers, they may create market power and lead to higher premiums, or they may permit the merged firm to gain a discriminatory advantage over smaller insurance companies, threatening downstream competition. Because of these dangers, it would not be wise, as a general rule, to permit large health insurers to merge.

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John B. Kirkwood 91 Wash. L. Rev. 253

Consume or Invest: What Do/Should Agency Leaders Maximize?

Consume or Invest: What Do/Should Agency Leaders Maximize?

March 21, 2016 | 91 Wash. L. Rev. 295

Abstract: In the regulatory state, agency leaders face a fundamental choice: should they “consume,” or should they “invest”? “Consume” means launching high profile cases and rulemaking projects. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This Article outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case study of how one agency managed and minimized these costs. Our Article concludes with several proposals that should help encourage agency leadership to strike a better balance between consumption and investment.

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William E. Kovacic & David A. Hyman 91 Wash. L. Rev. 295

“No Handicapped People Allowed”: The Need For Objective Accessibility Standards Under the Fair Housing Act

“No Handicapped People Allowed”: The Need For Objective Accessibility Standards Under the Fair Housing Act

March 21, 2016 | 91 Wash. L. Rev. 325

Abstract: The Fair Housing Act (FHA or the Act) sets forth accessibility requirements that housing developers must meet, but the Act does not contain objective performance standards for satisfying those requirements. This omission creates substantial barriers in housing opportunities for persons with disabilities. For example, the FHA mandates that doors must be wide enough to allow passage of wheelchair users, but it does not provide measurements for door width. The United States Department of Housing and Urban Development (HUD) has attempted to use ten model building codes or “safe harbors” from its regulations as minimal objective standards for accessibility. HUD and the Department of Justice (DOJ) contend that developers must either adopt a safe harbor or show that they followed some comparable objective building standard. However, housing developers continue to build inaccessible housing, arguing that the FHA contains no performance standards and that HUD does not have the authority to proscribe such standards. Some jurisdictions have agreed with HUD’s position, holding that a developer’s failure to adopt a safe harbor establishes a prima facie case for disability discrimination that may be overcome if the developer shows that it followed some comparable objective standard. Other jurisdictions have sided with developers, holding that the FHA does not require developers to build by any objective standard but, rather, gives developers the freedom to argue that their design and construction conform with the FHA’s general accessibility requirements. In turn, developers often hire experts who—without reference to any objective standard—conclude that the units are accessible under the FHA. As a result, accessibility becomes a matter of opinion. When courts do not recognize minimal standards for accessibility in housing, persons with disabilities, developers, and the government all pay a price. Developers will continue to build housing that is inaccessible to persons with disabilities, re-litigating the same question about accessibility, which is costly to both the government and developers. This Comment argues that objective standards would safeguard the rights of persons with disabilities under the FHA, put developers on notice that they must build by an objective standard, and preserve the government’s litigation resources. Courts should recognize that HUD’s regulations establish minimal accessibility standards, deserve judicial deference under established administrative law principles, and effectuate Congress’s intent to eliminate barriers to equal housing opportunities for persons with disabilities.

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Michael J. Jeter 91 Wash. L. Rev. 325

Our Corrosive Oceans: Exploring Regulatory Responses and a Possible Role for Tribes

Our Corrosive Oceans: Exploring Regulatory Responses and a Possible Role for Tribes

March 21, 2016 | 91 Wash. L. Rev. 361

Abstract: The world’s oceans act as a carbon sink, absorbing roughly twenty-five percent of humanity’s carbon dioxide emissions. As a result, ocean acidity has increased sixty percent since the beginning of the industrial era. Acidification is a burgeoning ocean health crisis—present levels of acidity already threaten species of oyster, plankton, and salmon. Disturbingly, the capacity of the American legal system to respond is unclear: the complexity of climate change-related harms typically precludes a remedy at common law. With respect to mitigating near-shore acidification, this Comment argues that a regulatory strategy utilizing the Clean Water Act’s Total Maximum Daily Load (TMDL) regime holds more promise than a tort response. Furthermore, in the Pacific Northwest, it may be possible to bolster TMDL regulation of non-point pollution through engagement with often-overlooked stakeholders: the Stevens Treaties tribes.

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Weston R. LeMay 91 Wash. L. Rev. 361
Title Author Citation

Judicial Lobbying

Judicial Lobbying

June 21, 2016 | 91 Wash. L. Rev. 401

Abstract: Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done—not to mention little that could be done—to restrict judges from lobbying. Judicial lobbying occurs, in large part, when Congress proposes jurisdictional changes: judges lobby when the scope of their review may change. Yet, jurisdictional issues raise concerns about the judiciary’s biases when it comes to lobbying. To further explore this point, this Article explores the case of specialized courts’ involvement in legislative lobbying efforts. Specialized courts have more opportunities to lobby Congress on jurisdiction because any legislative change to the subject matter under the specialized court’s purview is likely to alter the court’s jurisdiction. This Article argues that in certain instances lobbying by specialized judges ought to be curtailed. Lobbying by specialized courts raises unique issues that may not be present when judges on generalized courts lobby. Namely, specialized court lobbying may sacrifice long-held judicial virtues, including due process and impartiality, virtues which are fundamental to the legitimacy of the judiciary. This Article examines potential solutions to check such lobbying, and offers a partial solution that leverages the wisdom of the judicial branch, as a whole, to minimize those concerns.

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J. Jonas Anderson 91 Wash. L. Rev. 401

Constitutional Retroactivity in Criminal Procedure

Constitutional Retroactivity in Criminal Procedure

June 21, 2016 | 91 Wash. L. Rev. 463

Abstract: The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as “watersheds.” In the quarter-century since it established this doctrine, the Court has denied the accuracy-and-fairness credentials to every one of the dozens of new rules it has characterized as procedural and whose watershed status it has considered. Scholarly consensus accordingly casts watershed doctrine as exceptional, esoteric, and insignificant. This Article challenges that consensus. We use the dynamic concentration model of game theory to show how watershed doctrine counteracts the structural undersupply of constitutional due process rules. The Court maintains too small a caseload to scrutinize more than a fraction of due process violations or specify every such procedural demand. That institution is accordingly ill equipped to rein in the punitive tendencies of elected state judges who owe their jobs to electorates that tend to value crime prevention more than defendants’ rights. Watershed doctrine potentially mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of final convictions. By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of prisoners into the public. This existential threat provides an overlooked reason why state courts might insulate their states’ criminal procedures against Supreme Court incursions. To achieve the desired insulation, state courts can create constitutional safe harbors by trying to align their procedures with watersheds they project the Court might announce in the future. Indirect support for this theory comes from our comprehensive study of the hundreds of watershed decisions that state courts have issued since 1989. We narrowed this list down to the 228 controlling decisions about whether to backdate distinct due process rules across different jurisdictions. Our analysis found that twenty-seven, or more than one in nine, of these decisions inflate the retroactivity rights of criminal defendants.

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Dov Fox & Alex Stein 91 Wash. L. Rev. 463

Taxes and Ability to Pay in Municipal Bankruptcy

Taxes and Ability to Pay in Municipal Bankruptcy

June 21, 2016 | 91 Wash. L. Rev. 515

Abstract: Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come to regret municipal promises to workers. This Article presents the most sustained, straightforward, and comprehensive argument to date that existing law requires bankruptcy courts to provide relief only when municipalities are reasonably unable to meet their obligations. The legislative history of the municipal bankruptcy statutes consistently sounds this theme, and judicial precedents are in agreement. Congress did not provide a clear standard for courts to apply when looking at tax levels in municipal bankruptcy. Although the legislative history and case law provide some support for the proposition that municipalities should be required to tax at the level that maximizes revenue, the Article suggests a more moderate criterion: absent a compelling explanation, courts could require that a municipality tax at the top of its peer group as a condition of bankruptcy eligibility and plan confirmation.

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John Patrick Hunt 91 Wash. L. Rev. 515

Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship

Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship

June 21, 2016 | 91 Wash. L. Rev. 581

Abstract: A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed—as research suggests is not infrequently the case—the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but have been stripped of the capacity to contract. As a result, those who wish to challenge the terms and conditions of their guardianship, or even merely to exercise unrelated retained rights, can be stymied because attorneys are unwilling to accept representation for fear that it is unlawful or unethical. Drawing on constitutional law, as well as the law of agency and contract, this Article shows why such representations are, contrary to the assumptions of many attorneys, not merely legally permissible but essential to protect fundamental constitutional rights. It then explores the professional rules governing attorney conduct in order to show how attorneys may ethically represent persons subject to guardianship. Finally, it proposes a modest change to the Model Rules of Professional Conduct to clarify attorneys’ duties in this context.

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Nina A. Kohn & Catheryn Koss 91 Wash. L. Rev. 581

State Standing to Challenge Federal Authority in the Modern Administrative State

State Standing to Challenge Federal Authority in the Modern Administrative State

June 21, 2016 | 91 Wash. L. Rev. 637

 Abstract: The modern administrative state relies on a model of shared governance. Federal regulatory regimes addressing a range of economic and social issues depend on the participation of state governments for their implementation. Although these state-federal partnerships are often cooperative, conflicts over the allocation of regulatory authority and administrative policy are inevitable. In recent years, states have sought to resolve some of these conflicts in the federal courts. Well-known state challenges to federal authority include challenges to environmental rules, health insurance legislation, and immigration policies. In these cases, courts have struggled to decide whether states have constitutional standing to bring suit against the federal government. This Article fills a gap in the legal scholarship by proposing a “governance” approach to state standing that would allow states to challenge federal authority when the federal statute at issue contemplates an implementation role for state governments. The governance approach finds support both in historical precedent and in modern regulatory reality. The approach makes state-standing doctrine less susceptible to judicial manipulation and ensures that courts focus on other threshold questions often obscured by overly broad, incoherent standing analyses.

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Shannon M. Roesler 91 Wash. L. Rev. 637

Anonymization and Risk

Anonymization and Risk

June 21, 2016 | 91 Wash. L. Rev. 703

Abstract: Perfect anonymization of data sets that contain personal information has failed. But the process of protecting data subjects in shared information remains integral to privacy practice and policy. While the deidentification debate has been vigorous and productive, there is no clear direction for policy. As a result, the law has been slow to adapt a holistic approach to protecting data subjects when data sets are released to others. Currently, the law is focused on whether an individual can be identified within a given set. We argue that the best way to move data release policy past the alleged failures of anonymization is to focus on the process of minimizing risk of reidentification and sensitive attribute disclosure, not preventing harm. Process-based data release policy, which resembles the law of data security, will help us move past the limitations of focusing on whether data sets have been “anonymized.” It draws upon different tactics to protect the privacy of data subjects, including accurate deidentification rhetoric, contracts prohibiting reidentification and sensitive attribute disclosure, data enclaves, and query-based strategies to match required protections with the level of risk. By focusing on process, data release policy can better balance privacy and utility where nearly all data exchanges carry some risk.

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Ira S. Rubinstein & Woodrow Hartzog 91 Wash. L. Rev. 703

Revisiting the Taxation of Fringe Benefits

Revisiting the Taxation of Fringe Benefits

June 21, 2016 | 91 Wash. L. Rev. 761

Abstract: The receipt of workplace fringe benefits has become increasingly ubiquitous. As a result of their employment, employees often receive a cornucopia of fringe benefits, including frequent-flier miles, hotel rewards points, rental car preferred status, office supply dollar coupons, cellular telephone use, home internet service, and, in some instances, even free lunches, massages, and dance lessons. Technological advances and workforce globalization are important contributory factors to the popularity of what were, until the turn of this century, previously unknown fringe benefits. In years past, taxpayers could readily turn to the Internal Revenue Code to ascertain the income tax effects and reporting responsibilities associated with fringe benefit receipt. However, today’s fringe benefits have evolved far beyond what Congress contemplated when it enacted fringe benefit reform over thirty years ago. As a result, the existing statutory tax compliance framework does not adequately address the recent transformation of the workplace, as many modern fringe benefits are not specifically excluded from the income tax base yet are not currently being reported as taxable. This Article examines what has been an increasingly commonplace phenomenon: employers and employees ignoring their responsibilities to report the receipt of fringe benefits as taxable income. It argues that Congress has an obligation to preserve the tax base and, accordingly, must institute reform measures to ensure taxpayer compliance. Failure to take action will trigger an expansion of such fringe benefit offerings, eroding the tax base and jeopardizing the integrity of the income tax system.

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Jay A. Soled & Kathleen DeLaney Thomas 91 Wash. L. Rev. 761

The Right to Be Virtually Clothed

The Right to Be Virtually Clothed

June 21, 2016 | 91 Wash. L. Rev. 817

Abstract: Nonconsensual pornography, also known as, “revenge pornography” or “cyber exploitation,” is the publication of a person’s nude image or video online by a third party. It is a privacy violation that can ruin a person’s social and professional life. Although advocates and lawmakers have done substantial work addressing this problem, current legal remedies fall short. This Comment argues that two privacy protections developed abroad, the “right to be forgotten” and the “right to delete,” should be applied domestically to nonconsensual pornography. One aspect of the “right to be forgotten,” i.e., the ability to remove nonconsensually posted images from search engine results, could be developed domestically to counter the reputational impact of revenge porn. Additionally, the “right to delete,” which is currently limited to the copyright context in the United States, could be expanded so that courts could mandate removal of images both from websites and from individuals’ possession once consent has been withdrawn. These rights—which together compose a right to control nonconsensually published nude images online—herein dubbed the “right to be virtually clothed”—will help address reputational and social damage as well as reduce the overall impact of revenge porn first by obscuring the underlying content and ultimately by removing it from the web.

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Peter W. Cooper 91 Wash. L. Rev. 817

State Equity Crowdfunding and Investor Protection

State Equity Crowdfunding and Investor Protection

June 21, 2016 | 91 Wash. L. Rev. 847

Abstract: Since Kansas enacted the first blue sky law in 1911, securities regulation has sought to protect investors from fraud and speculation. Historically, this meant precluding substantial numbers of small businesses from raising capital in the form of equity investments. In order to facilitate small-business capital formation, in 2012 the federal government passed the Jumpstart Our Business Startups Act (JOBS Act). Although Title III of the JOBS Act required the Securities and Exchange Commission to undergo rulemaking to allow for small-dollar equity investments, the agency dragged its feet. In the interim, states anxious to jumpstart their own economies took the initiative. Legislation has now been enacted in over half the states. Although a laudable attempt to make raising capital easier, this legislation potentially provides an avenue for fraudulent offerings and significant investor losses. This Comment reviews the historical context in which state crowdfunding exemptions have been passed and compares enacted state laws to the JOBS Act’s requirements. It argues that in order to effectively prevent fraud while enabling small-business capital formation, states should adopt specific protection measures in their crowdfunding laws. These prophylactic measures, including requirements on both issuers and intermediaries, as well as protections for investors, promise to better help business while also protecting investors.

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Christopher H. Pierce-Wright 91 Wash. L. Rev. 847

Legislating Agency Use of Unmanned Aerial Vehicles in Washington State

Legislating Agency Use of Unmanned Aerial Vehicles in Washington State

June 21, 2016 | 91 Wash. L. Rev. 887

Abstract: After years of hearing about “drone strikes” in the Middle East meant to kill terrorists that also kill and maim innocent civilians, Americans have legitimate concerns about the government’s use of unmanned aerial vehicles (UAVs) domestically. The public’s anxiety over law enforcement agency use of domestic UAVs stems from worries that UAVs will significantly invade citizens’ privacy. In an effort to allay these privacy concerns, state legislators, including those in Washington State, have introduced statutes aimed at curbing law enforcement agency use of UAVs. However, state legislators should carefully draft legislation to ensure that agencies not acting in a law enforcement capacity do not get lumped in with traditional law enforcement agencies. Agencies such as Department of Natural Resources, Department of Fish & Wildlife, and Department of Ecology have many cost-effective and beneficial uses for UAVs that would cause negligible risk to Washingtonians’ privacy rights. This Comment suggests statutory language that would allow citizens to reap the substantial benefits of UAVs for environmental and wildlife regulation while still protecting their privacy privileges from intrusion by law enforcement agencies.

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Ashleigh B. Rhodes 91 Wash. L. Rev. 887
Title Author Citation

Gross Error

Gross Error

October 22, 2015 | 91 Wash. L. Rev. 929

Abstract: Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the United States Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases.

The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not even attempt to distinguish humane execution protocols from dangerous ones. Many states, including Oklahoma, have repeatedly shown that they cannot be trusted to implement lethal injection procedures carefully. The Court’s deference turned a blind eye to this history and upheld a manifestly dangerous execution procedure. In so doing, the Court tried to shut down an entire category of litigation, thereby abdicating its constitutional responsibility to safeguard individual rights. Regardless of one’s views on capital punishment, Glossip v. Gross’s reflexive deference determinations collectively amount to gross error.

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Eric Berger 91 Wash. L. Rev. 929

One Percent Procedure

One Percent Procedure

October 22, 2015 | 91 Wash. L. Rev. 1005

Abstract: Political rhetoric about the one percent is pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure.

This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite—those who are deeply steeped in complex, high-stakes litigation—are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system—notably expertise of the participants—are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.

As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine percent. Using social and political science, the Article argues that the homogeneous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.

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Brooke D. Coleman 91 Wash. L. Rev. 1005

Not Too Separate or Unequal: Marriage Penalty Relief After Obergefell

Not Too Separate or Unequal: Marriage Penalty Relief After Obergefell

October 22, 2015 | 91 Wash. L. Rev. 1073

Abstract: Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple’s taxes. Depending on their earnings breakdown, a couple’s taxes could be reduced (a marital bonus for uneven-earners) or increased (a marital penalty for even-earners). These possibilities exist because the joint brackets are typically larger–but not twice as large–as the unmarried brackets.

Recent Supreme Court decisions about same-sex marriage revitalize this debate since many same-sex couples face the marriage penalty. In response, some recent commentators propose the elimination of joint returns. However, such elimination faces serious roadblocks, including political concerns and tension with marriage’s collaborative character. While higher joint bracket allowances likewise would provide penalty relief, this would increase both marital bonuses and the associated revenue loss.

We propose instead a unique solution to the current standstill: an option for married couples to calculate their tax on their separate earnings. These separate amounts would be combined on a joint return. The new separate brackets would be more than half the joint allowance but less than the singles cap. This range permits maximum flexibility to balance revenue concerns with other important values. Further, our approach would provide significant penalty relief without any undesired impact on bonuses. It also would maintain our deeply ingrained joint return system. Finally, we demonstrate the superiority of our proposal over other suggested compromises.

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Mitchell L. Engler & Edward D. Stein 91 Wash. L. Rev. 1073

Taking Bankruptcy Rights Seriously

Taking Bankruptcy Rights Seriously

October 22, 2015 | 91 Wash. L. Rev. 1115

Abstract: Perhaps more so than any other area of law affecting individuals of low-to-moderate means, bankruptcy poignantly presents an affordability paradox: the system’s purpose is to relieve individuals from financial distress, yet it simultaneously demands a significant commitment of resources to obtain such relief. To date, no one has undertaken a comprehensive study of the complexities and costs of the litigation burden that Congress has imposed on self-represented debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that sometimes necessitates litigation as the path for vindicating a debtor’s statutory right to a discharge, this Article focuses on the particular example of debtors who seek to discharge their educational debt (e.g., student loans) through bankruptcy. Such debt may be discharged only if the debtor can establish through a full-blown lawsuit, essentially governed by the Federal Rules of Civil Procedure, that repaying the debt would impose an undue hardship on the debtor.

Using an original dataset of educational-debt dischargeability determinations, this Article reveals that, even when controlling for a variety of factors, including a debtor’s financial characteristics and applicable legal standards, the typical self-represented debtor in such proceedings has only a 28.5% chance of litigation success, which pales in comparison to the 56.2% success rate of a similarly situated debtor who is represented. This finding casts serious doubt on the litigation framework that has been implemented to resolve disputes over a debtor’s discharge rights. After exploring various approaches to reforming the framework, this Article concludes that our reform efforts will signify how committed we are as a society to deliver bankruptcy law’s promise of a fresh start to financially distressed individuals—to wit, whether we are willing to take bankruptcy rights seriously.

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Rafael I. Pardo 91 Wash. L. Rev. 1115

Reputation Through Litigation: How the Legal System Shapes Behavior by Producing Information

Reputation Through Litigation: How the Legal System Shapes Behavior by Producing Information

October 22, 2015 | 91 Wash. L. Rev. 1193

Abstract: The law affects our behavior not only directly by imposing legal sanctions, but also indirectly, by providing information that shapes the reputations of individuals and organizations. This Article is the first to fully flesh out the reputation-shaping aspects of the law.

The Article’s first major contribution is in explaining how reputation works. Legal scholars are increasingly recognizing that reputation matters: reputational concerns are touted as an important factor that shapes our behavior across a wide range of phenomena, from product safety to corporate governance to international relations. Yet so far the literature has stayed remarkably silent on how exactly reputation matters. This Article draws from a fast-growing multidisciplinary body of reputation research to examine why similar behaviors lead to different reputational outcomes. A key takeaway is that reputational sanctions are much noisier than was previously acknowledged: the market systematically under-reacts to certain types of misbehaviors and over-reacts to others.

The Article’s second major contribution comes from mapping out the different ways in which the law affects reputational sanctions. Specifically, the Article focuses on the previously overlooked “second-opinion role” of the law. When bad news breaks about an adverse action by a company, market players react immediately by downgrading their beliefs about the company and their willingness to interact with it. But the same bad news may also get the legal system involved. Then, in the process of finding out whether to impose legal sanctions, the legal system produces as a byproduct information on the behavior of the parties to the dispute: what top managers knew and when they knew it, whether the adverse action was an isolated mistake or whether it is indicative of the company’s operational culture, and so forth. This information reaches third parties, and makes them reassess their beliefs about the company. Contrary to the common assumption among legal scholars, law and reputation are not independent of each other, but rather complement each other. A well-functioning legal system reduces noise and increases the accuracy of reputational sanctions.

Acknowledging the informational role of the law generates important policy implications. First, the Article calls for a more cautious approach to scaling back legal intervention. If the law indeed complements non-legal sanctions, then any proposal to scale back legal intervention should also take into account the expected negative impact on non-legal deterrence. Second, the Article reassesses practical and timely debates such as the desirability of heightened pleading standards. If litigation indeed generates quality information on the behavior of market participants (a positive externality), then we should reevaluate key legal institutions according to how they contribute to information production.

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Roy Shapira 91 Wash. L. Rev. 1193

The House Edge: On Gambling and Professional Discipline

The House Edge: On Gambling and Professional Discipline

October 22, 2015 | 91 Wash. L. Rev. 1253

Abstract: On March 26, 2014, the Iowa Supreme Court revoked the license to practice law of Cedar Rapids attorney Susan Hense. Admitted to the Iowa Bar in 1996, Hense subsequently misappropriated $837,000 in client trust funds to feed her addiction to casino gambling. This Article assesses how attorneys like Hense who are addicted to gambling are treated in professional disciplinary actions, including license suspension, revocation, and reinstatement proceedings. Themes that emerge include public misunderstanding of gambling disorder, stigma against individuals with gambling disorder, statutory recognition of substance addictions but not behavioral addictions, and mandatory attendance at religion-based fellowship meetings as a condition of license reinstatement. An important contribution to both the health law and professional responsibility literatures, this Article makes five specific proposals designed to ensure the fair and equitable treatment of individuals with gambling disorder in future professional disciplinary proceedings.

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Stacey A. Tovino 91 Wash. L. Rev. 1253

Kill the Snitch: How Henriquez-Rivas Affects Asylum Eligibility for People Who Report Serious Gang Crimes to Law Enforcement

Kill the Snitch: How Henriquez-Rivas Affects Asylum Eligibility for People Who Report Serious Gang Crimes to Law Enforcement

October 22, 2015 | 91 Wash. L. Rev. 1313

Abstract: In 2015, El Salvador became the murder capital of the world. Like its Central American neighbors, El Salvador has experienced a significant increase in gang violence during the past decade, as evidenced by its 2015 homicide statistics showing over 6,600 registered homicides in the country despite a population of only 6.3 million people. Rising crime rates and widespread gang influence are forcing many affected Central Americans to seek asylum in the United States.

Individuals may qualify for asylum if they have a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. Some of the most recent immigration case law explores the definition of membership in a particular social group. In 2013, the Ninth Circuit’s decision in Henriquez-Rivas created a new particular social group by extending asylum eligibility to individuals who witness and testify to serious crimes committed by gangs. Henriquez-Rivas eliminates the requirement for a particular social group to be visible to the naked eye. According to the Ninth Circuit, if a proposed particular social group is understood by society to constitute a group, then that group is “socially distinct” and therefore cognizable.

This Comment argues that the particular social group created by Henriquez-Rivas should be expanded to include people who report serious gang crimes to law enforcement without the need to testify in court.

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James Carr 91 Wash. L. Rev. 1313

Legislative Solutions to StingRay Use: Regulating Cell Site Simulator Technology Post-Riley

Legislative Solutions to StingRay Use: Regulating Cell Site Simulator Technology Post-Riley

October 22, 2015 | 91 Wash. L. Rev. 1355

Abstract: In Riley v. California, the United States Supreme Court held that law enforcement must generally obtain a warrant before searching the contents of an individual’s cell phone. However, Riley did not address whether the warrant requirement extended to cell phone metadata, e.g. non-content information such as location information. This gap creates uncertainty as to whether law enforcement officers must obtain a warrant to use Cell Site Simulators, a portable technology that mimics a cell tower to get location information metadata from cell phones. Law enforcement has justified the warrantless gathering of cell site information under the third-party doctrine, which provides that there is no Fourth Amendment-protected privacy interest in information made available to a third party such as a phone service provider. Riley did not explicitly address the warrant requirement in the context of metadata. And until recently, post-Riley circuit courts were split on whether a warrant is required for metadata. A legislative resolution of this uncertainty is thus useful, both to safeguard individual privacy and to provide clear but not overly restrictive rules for law enforcement. This Note will address what legislative solutions states have pursued, and the benefits and shortcomings of each option.

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Ada Danelo 91 Wash. L. Rev. 1355
Title Author Citation

Pluralizing the “Sharing” Economy

Pluralizing the “Sharing” Economy

December 21, 2016 | 91 Wash. L. Rev. 1397

Abstract: The so-called “sharing” economy presents one of the most important and controversial regulatory dilemmas of our time—yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible for cultivating a range of social institutions that offer meaningful economic and social alternatives to individuals.

Recognizing access-to-excess transactions in a separate legal regime does not mean countenancing all access-to-excess activity in an under-regulated Wild West of markets. Pluralism has something to offer here as well: I argue that, properly understood, pluralistic principles do not endorse free-market and hands-off policies. Rather, they require state intervention to preserve existing choices, embed and balance diverse values (not only autonomy), ensure fair competition, and protect consumers and employees from strategic and opportunistic behaviors. Thus, pluralistic principles offer the normative foundation for inventive regulation—neither conventional nor free market—that can restrain some of the “sharing” economy’s harms without impeding innovation.

Finally, the Article reverses the lens: The “sharing” economy serves as a real-life laboratory to reveal the operation of pluralistic theory and, thus, sheds light on the theory’s limitations. In particular, the “sharing” economy shows how the plasticity of pluralistic theory may enable harmful free-market policies to masquerade as “choice.”

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Erez Aloni 91 Wash. L. Rev. 1397

The Class Action as Trust

The Class Action as Trust

December 21, 2016 | 91 Wash. L. Rev. 1461

Abstract: The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings.

This Article argues that a more useful model for the class action is the trust. Unlike the shareholders of a corporation, the beneficiaries of the trust typically cannot exercise control over the trustee. Moreover, unlike the corporation, trust law facilitates the creation of trusts with conflicts among the beneficiaries. These features of the trust mirror the most controversial features of the class action.

The Article shows that both of these features are necessary to address problems of scale found in both contexts. Unlike in the corporate context, both the trust and class action contexts lack a well-developed market for managerial control which would allow beneficiaries/class members with conflicting interests to cede control to a third party with better aligned interests. In the absence of such a market, retaining control among the divided beneficiaries/class members prevents them from investing in the res/claims at the right scale.

Accordingly, trust law shows that class action requirements such as opt-out rights and class cohesion are misguided. The article concludes by applying the trust model of the class action to such class action issues as the ascertainability of class members, settlement pressure on the defendants, and cy pres awards.

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Sergio J. Campos 91 Wash. L. Rev. 1461

The Learned Hand Unformula for Short-Swing Liability

The Learned Hand Unformula for Short-Swing Liability

December 21, 2016 | 91 Wash. L. Rev. 1523

Abstract: Section 16(b) of the Securities Exchange Act of 1934 allows for the recovery of short-swing profits realized by certain insiders from trading in a corporation’s stock within a period of less than six months. Three generations of corporate law students have been taught the “lowest-in, highest-out” formula that is intended to maximize the disgorgement of short-swing profits under section 16(b). Arnold Jacobs’s 1987 treatise presented two hypothetical examples where the formula fell short of the intended maximum, but courts, commentators, and practitioners have largely ignored these theoretical challenges to the formula’s validity.

This Article identifies Gratz v. Claughton as the first reported real-world example of the formula’s failure. Ironically, Gratz has been taught and cited for more than sixty years as a leading authority for the formula’s use, not least because of its distinguished author, Judge Learned Hand. This Article argues that Gratz has been misunderstood and that Hand wisely adjudicated this complex case without prescribing or endorsing the formula in any way. It also shows that the formula has no need of Gratz’s endorsement, as long as the formula is correctly interpreted as limited to simpler cases where it is mathematically valid. It formalizes and extends Jacobs’s results by showing that the formula may fall short of the maximum by up to fifty percent when misused in more complex cases, and has actually fallen short in another more recent case. Finally, it provides online tools to enable practitioners and judges to calculate short-swing liability correctly in all cases.

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Andrew Chin 91 Wash. L. Rev. 1523

Surveillance Policy Making by Procurement

Surveillance Policy Making by Procurement

December 21, 2016 | 91 Wash. L. Rev. 1595

Abstract: In Seattle, the police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. In Oakland, following a council review that lasted literally two minutes, the city created a data integration center that networked together all of its existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.

In an age of heightened concern about the militarization of local police and surveillance technology, how do local law enforcement agencies obtain cutting edge and potentially intrusive surveillance equipment without elected leaders and the general public realizing it? The answer lies in the process of federal procurement, through which the federal government, often in the name of combatting terrorism, funnels billions of dollars to local law enforcement agencies that can then be used to purchase surveillance equipment. But the federal government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies to acquire, or that anyone develops a protocol to constrain how the technologies are used. Surveillance policy making by procurement thus raises a host of questions about accountability for policy choices when the federal government influences local policing through grants, but does not address all relevant concerns and how to deal with the inevitable spillover effects of the federal government’s national security initiatives on the ways local law enforcement agents carry out their more routine policing functions.

This Article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. The case studies highlight the structural and institutional factors that lead to surveillance policy making by procurement, and elected representatives’ responses to it point the way towards policy solutions that would bring a greater measure of transparency and accountability to local surveillance policy making. The case studies also provide fodder for thinking through the way federal spending programs can generate confusion over who is responsible for policy choices and how the federal government’s national security policies have spillover effects on the conduct of routine policing. Local communities vary greatly in their crime rates, the competence and trustworthiness of their police departments, and their political convictions. This Article draws on the case studies to suggest that local governments have a valuable role to play in tailoring surveillance policy to local conditions. It concludes by proposing politically feasible steps to strengthen local democratic input regarding what surveillance technology should be adopted and the conditions under which it should be deployed.

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Catherine Crump 91 Wash. L. Rev. 1595

An “APP” for Third Party Beneficiaries

An “APP” for Third Party Beneficiaries

December 21, 2016 | 91 Wash. L. Rev. 1663

Abstract: Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others—in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller,1 a professor teaching contracts at a then-Southern law school,2 and William Perdue, a student at that school, significantly clarified and improved decision-making on damages issues in contract law by proposing a new vocabulary and analytical model.3 The senior author of this Article is a professor at a Southern law school, but he does not need an academic Lloyd Bentsen4 to tell him that he is “no Lon Fuller,” and the younger co-authors hold no “William Perdue illusion,” given that Mr. Perdue was the father-in-law of their law school dean. Nonetheless, we believe that the new vocabulary and analytical model we are proposing would clarify and improve decision-making on third party contract rights.

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David G. Epstein, Alexandra W. Cook, J. Kyle Lowder, & Michelle Sonntag 91 Wash. L. Rev. 1663

The Antidemocratic Sixth Amendment

The Antidemocratic Sixth Amendment

December 21, 2016 | 91 Wash. L. Rev. 1705

Abstract: Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel. Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.

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Janet Moore 91 Wash. L. Rev. 1705

Regulating Secrecy

Regulating Secrecy

December 21, 2016 | 91 Wash. L. Rev. 1769

Abstract: Inventors face a stark choice between two intellectual property systems of protecting innovative ideas: patents and trade secrecy. But accounts of this choice underexplore the role of the regulators that dominate some areas of innovation. Regulation interacts with intellectual property exclusivity in socially problematic ways by encouraging secrecy at the expense of innovation, efficiency, and competition. This Article theorizes how regulation empowers intellectual property generally, explains why this strengthening is problematic for trade secrecy but not for patents, and offers the solution of regulator-enforced disclosure.

When a regulator defines a product or a process, it becomes much harder to successfully commercialize minor variations on that product or process. Any associated intellectual property exclusivity thus gets much more powerful. When the FDA approves a new drug, patents covering that chemical become much costlier to invent around because similar but non-identical chemicals lack the tremendous benefit of FDA approval. This interaction between patents and regulation interaction, however, can be noted and explicitly addressed by policy. The Hatch-Waxman Act, for example, facilitates generic drug entry once drug patents expire. Regulation strengthens trade secrecy too, but more problematically. Biologics, which comprise the most innovative and expensive drugs today, are the path-dependent result of complex, secret manufacturing processes. Meeting the FDA’s definition of a biologic requires reverse-engineering its complex, secret process, making trade secrecy much more valuable, but stifling competition and innovation. In such situations, regulation can push firms to choose secrecy over patents in precisely those socially important industries, like drugs, medical devices, and pesticides, where disclosure is most important.

Where regulation creates problems, however, it also offers the hope of a solution. Regulators are in a strong position to require disclosure directly: regulated firms have strong incentives for candor, regulators have the necessary expertise, and regulatory incentives can offset the costs of disclosure. More effective regulator-mediated disclosure would increase oversight and enable cumulative innovation, while retaining incentives for invention in regulated industries.

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W. Nicholson Price II 91 Wash. L. Rev. 1769

Computer Fraud and Abuse Act Enforcement: Cruel, Unusual, and Due for Reform

Computer Fraud and Abuse Act Enforcement: Cruel, Unusual, and Due for Reform

December 21, 2016 | 91 Wash. L. Rev. 1813

Abstract: This Comment argues that the Computer Fraud and Abuse Act (CFAA) uses an outdated concept of technology in everyday activities that can lead to unexpected and grossly disproportional federal criminal charges. The CFAA’s vague definitions passively provide broad prosecutorial discretion that may turn millions of everyday internet users into criminals, even in cases of a common breach of an online terms-of-service agreement. Congress should look to the Eighth Amendment and draw from its principles in reforming the CFAA. The Comment concludes with a proposed interpretation of the CFAA that would better align the statute with other criminal laws, namely trespass. Courts should require the owners of protected computers to give notice to a user before that user can be found to violate the CFAA based on unauthorized access.

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Tiffany Curtiss 91 Wash. L. Rev. 1813

Put Privity in the Past: A Modern Approach for Determining When Washington Attorneys Are Liable to Nonclients for Estate Planning Malpractice

Put Privity in the Past: A Modern Approach for Determining When Washington Attorneys Are Liable to Nonclients for Estate Planning Malpractice

December 21, 2016 | 91 Wash. L. Rev. 1851

Abstract: Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney’s alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries’ anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate planning attorney’s client is a testator, not a testator’s intended beneficiaries; thus, the intended beneficiaries are not in privity of contract with the attorney. Rather, the only individual in privity with the accused attorney is usually deceased at the time of a malpractice lawsuit. If a strict privity rule applies, courts will leave beneficiaries with few options to hold attorneys accountable for costly mistakes in the drafting or execution of estate planning documents. On the other hand, courts will expand the scope of liability too far if they allow any nonclient to sue an estate planning attorney for malpractice.

First, this Comment traces trends in Washington estate planning malpractice law. The discussion begins with two Washington State Supreme Court decisions that suggest a balancing test, rather than a strict privity rule, defines the scope of attorney malpractice liability to nonclients. Then it analyzes two Washington State court of appeals cases that demonstrate how the balancing test still favors privity in its application. Second, this Comment weighs the strengths and weaknesses of other jurisdictions’ approaches to attorney malpractice liability to nonclients. Third, it considers different scenarios in which courts may hold an estate planning attorney liable to nonclients under Washington law. Finally, this Comment recommends that courts require nonclient intended beneficiaries to exhaust Washington’s will and trust reformation statute before bringing a claim against an estate planning attorney.

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Kaitlyn C. Kelly 91 Wash. L. Rev. 1851

The Dormant Commerce Clause “Effect”: How the Difficulty in Reconciling Exxon and Hunt Has Led to a Circuit Split for Challenges to Laws Affecting National Chains

The Dormant Commerce Clause “Effect”: How the Difficulty in Reconciling Exxon and Hunt Has Led to a Circuit Split for Challenges to Laws Affecting National Chains

December 21, 2016 | 91 Wash. L. Rev. 1895

Abstract: The onslaught of chains such as Wal-Mart and Starbucks has driven some state and local lawmakers to craft regulations prohibiting these types of national chains. In response, several national chains have challenged the constitutionality of such regulations, claiming that they amount to economic protectionism. The dormant Commerce Clause (DCC) doctrine prohibits states from engaging in protectionism directed at commerce from other states. Courts use a two-tiered analysis when considering these types of challenges. The tier-level analysis is important because regulations rarely survive the first tier’s elevated scrutiny. The first tier applies when a state law directly discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests.

The Supreme Court reached inconsistent decisions as to whether a regulation has a discriminatory effect, as demonstrated by a careful analysis of Hunt v. Washington State Apple Advertising Commission and Exxon Corporation v. Governor of Maryland. These two decisions are difficult to reconcile: Hunt supports a finding of discriminatory effect where a regulation stripped an out-of-state entity of a competitive advantage it secured through its particular business practice, but Exxon indicates that the DCC does not protect particular structures or methods of business. This inconsistency has contributed to a split between courts in the First, Ninth, and Eleventh Circuits. While courts in the First and Ninth Circuits have found that prohibitions affecting chain stores do not produce a discriminatory effect, the Eleventh Circuit has come to the opposite conclusion. This circuit split tracks the tension between Hunt and Exxon. Potential solutions to this split include eliminating the first tier elevated scrutiny analysis, creating a special exception for national chains, or otherwise clarifying the Supreme Court’s jurisprudence regarding discriminatory effect.

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Valerie Walker 91 Wash. L. Rev. 1895
Volume 90
Published 2015
Number 1
Number 2
Number 3
Number 4
Title Author Citation

Home-Country Effects of Corporate Inversions

Home-Country Effects of Corporate Inversions

March 30, 2015 | 90 Wash. L. Rev. 1

Abstract: This Article develops a framework for the study of the unique effects of corporate inversions (meaning, a change in corporate residence for tax purposes) in the jurisdictions from which corporations invert ("home jurisdictions"). Currently, empirical literature on corporate inversions overstates its policy implications. It is frequently argued that in response to an uncompetitive tax environment, corporations may relocate their headquarters for tax purposes, which, in turn, may result in the loss of positive economic attributes in the home jurisdiction (such as capital expenditures, research and development activity, and high-quality jobs). The association of tax-residence relocation with the dislocation of meaningful economic attributes, however, is not empirically supported and is theoretically tenuous. The Article uses case studies to fill this gap. Based on observed factors, the Article develops grounded propositions that may describe the meaningful effects of inversions in home jurisdictions. The case studies suggest that whether tax-relocation is associated with the dislocation of meaningful economic attributes is a highly contextualized question. It seems, however, that inversions are more likely to be associated with dislocation of meaningful attributes when non-tax factors support the decision to invert. This suggests that policymakers should be able to draft tax-residence rules that exert non-tax costs on corporate locational decisions in order to prevent tax-motivated inversions.

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Omri Marian 90 Wash. L. Rev. 1

Revisiting Claim and Issue Preclusion in Washington

Revisiting Claim and Issue Preclusion in Washington

March 30, 2015 | 90 Wash. L. Rev. 75

Abstract: When it comes to the law of claim and issue preclusion, Washington courts and practitioners encounter rules and precedent that tend to be unnecessarily complicated, overly broad, and even—in some instances—simply wrong. Three decades ago, Professor Philip Trautman urged Washington courts to clarify and modernize the doctrine. A fresh look at the topic suggests that while courts have been receptive to the professor’s advice, the goal of a clear and usable body of preclusion law will require more work. Specifically, Washington courts should address three problems. First, they should simplify the test for claim preclusion, eliminating redundant and confusing elements to make the test more consistent with prevailing modern rules. Instead of clinging to a four-element test that includes a four-factor subtest, the courts should simply examine identity of parties and claims, and should use a transactional test to determine claim-identity. Second, Washington courts should abandon the discredited doctrine of virtual representation, which has bound nonparties to the results of actions in which they either testified or had an advisory role. This use of nonparty preclusion violates litigants’ due process rights, and wastes resources by encouraging litigants to argue the theory even though it is rarely a successful defense. While it might be defensible to preclude nonparties when the earlier action involved an assertion of public rights, courts should proceed with caution, and ensure that Washington’s current rule applies only in the most limited circumstances. Third, Washington courts need to consider Full Faith and Credit principles in every case that involves a judgment from another state or federal court. Ignoring these principles has led courts to apply the wrong preclusion law to judgments of other courts, a practice that harms litigants and undermines the legitimacy of the courts’ decisions.

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Kathleen M. McGinnis 90 Wash. L. Rev. 75

Experimental Execution

Experimental Execution

March 30, 2015 | 90 Wash. L. Rev. 147

Abstract: On July 23, 2014, an execution in Arizona lasted nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution. This was the third example of a botched execution in seven months. The Supreme Court last evaluated the constitutionality of execution by lethal injection in 2008, but did not provide a clear standard for evaluating risks. Since that time, the lethal injection landscape has transformed. States are using entirely new drugs and drug combinations, and sometimes obtain these drugs from questionable sources, making it hard to predict what will happen in any given execution. The Court has now granted certiorari to examine the constitutionality of Oklahoma’s lethal injection protocol in the case of Glossip v. Gross.

Although it is increasingly common to refer to lethal injection executions as experimental, this Article is the first to conduct a rigorous analysis of whether and to what extent executions by lethal injection involve the conduct of research and therefore should be analyzed under the ethical and regulatory framework that governs biomedical research. I argue that an important factor driving this high error rate is that the use of novel drugs, drug combinations, and dosages in lethal injection executions is a type of research. More specifically, it is poorly designed experimentation that is not based on evidence. If the death penalty is justified, individual inmates are being exposed to uncertain (and sometimes unnecessary) risks in order to obtain benefits for others by furthering the underlying aims of capital punishment.

This insight suggests three important conclusions. First, states should draw from existing scholarship on ethics and regulations that apply to biomedical research with captive and vulnerable populations. Prisoners are considered a vulnerable population, and experimental executions involving prisoners should abide by the general principles that are applicable to research: respect for autonomy, non-maleficence, and justice. Second, legal safeguards that follow from these principles should be applied to executions—in particular, states should ask for informed consent from prisoners to modifications of lethal injection protocols, obtain independent review by a regulatory body like the Food and Drug Administration, and apply a standard requiring risk minimization in the choice of drugs and procedures. Finally, states should systematically gather data as they engage in experimental execution.

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Seema K. Shah 90 Wash. L. Rev. 147

Administrating Patent Litigation

Administrating Patent Litigation

March 30, 2015 | 90 Wash. L. Rev. 205

Abstract: Recent patent litigation reform efforts have focused on every branch of government—Congress, the President, and the federal courts—save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as "gatekeepers" to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation. Understanding administrative agencies’ functions in managing or directing, i.e., "administrating," patent litigation sheds both descriptive and normative insight on several aspects of patent reform. These include several problems inherent in patent litigation generally, and ways of fixing them that focus less on the identities or characteristics of litigants and more on agencies’ (and courts’) institutional incentives. This Article synoptically describes the functions of administrative agencies in patent litigation, elucidates several problems with agencies’ operation of those functions, and provides several cheap, easy, and politically viable solutions to better administrating patent litigation.

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Jacob S. Sherkow 90 Wash. L. Rev. 205

Rethinking Virtual Currency Regulation in the Bitcoin Age

Rethinking Virtual Currency Regulation in the Bitcoin Age

March 30, 2015 | 90 Wash. L. Rev. 271

Abstract: This Article investigates an increasingly important yet under-developed body of law: regulation of virtual currency. At its peak in March of 2014, the daily volume of Bitcoin transactions in United States dollars exceeded $575,000,000. The growing mainstream acceptance of Bitcoin, however, is best illustrated by the growing number of leading merchants that have decided to accept Bitcoin payments. While Bitcoin’s rise as an alternative payment method is well-chronicled, Bitcoin’s impact extends further due to its use as an investment vehicle and its ability to spur the growth of an industry of Bitcoin-based businesses. Despite increasingly widespread use, Bitcoin (and other virtual currencies) have largely operated without the burden of regulation. Why? Like the potentially transformative innovations that preceded Bitcoin, virtual currency raises unique challenges for which existing legal models may be unprepared. As policymakers struggle to catch-up, the effort to develop an appropriate regulatory regime for virtual currency is at a critical juncture.

The response in the United States has thus far involved regulatory bodies acting independently to clarify the treatment of virtual currency under a variety of different laws designed to regulate traditional payment systems, financial services, and investments. This Article argues, contrary to this approach, that a narrow focus on the technical application and extension of existing law creates a deficient regulatory regime. Instead, we suggest that policymakers should: (1) engage the various agency stakeholders to promote cross-communication; (2) think more globally about the wide spectrum of issues arising from virtual currency; and (3) embrace the unique and distinct characteristics of virtual currency. In support of this proposition, we show that refocusing on the collection of policy goals advanced by existing law offers policymakers an additional tool to aid in the development of a comprehensive, cohesive, and appropriately-scaled virtual currency regulatory model.

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Kevin V. Tu & Michael W. Meredith 90 Wash. L. Rev. 271

Forever Evergreen: Amending the Washington State Constitution for a Healthy Environment

Forever Evergreen: Amending the Washington State Constitution for a Healthy Environment

March 30, 2015 | 90 Wash. L. Rev. 349

Abstract: Pollution poses an ongoing threat to the health and welfare of the citizens of Washington State. Air pollution costs Washington approximately $190 million per year, ocean acidification is contributing to oyster die-offs, and approximately 677,000 acres of land are affected by area-wide soil contamination. Although Washington has aspirational environmental legislation and a narrowly defined duty under article XVII of the Washington State Constitution to protect navigable waters, their shores and tidelands, the State needs to do more if its citizens—present and future—are going to enjoy a healthy environment. Amending the Washington State Constitution to include an extended public trust doctrine that provides broad environmental protection and incorporates an affirmative right to a healthy environment will add a layer of environmental protection and provide the impetus for politically difficult environmental action. Amending the State Constitution to include a positive right to a healthy environment would not be a radical departure from current policy, and is necessary to safeguard the environment for present and future generations.

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Devra R. Cohen 90 Wash. L. Rev. 349

A Tale of Three Prejudices: Restructuring the “Martinez Gateway”

A Tale of Three Prejudices: Restructuring the “Martinez Gateway”

March 30, 2015 | 90 Wash. L. Rev. 405

Abstract: Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same term of art is used in different contexts. The proposed modifications would simplify Martinez for petitioners—ideally resulting in more evidentiary hearings exploring underlying ineffective-assistance-of-trial-counsel claims in federal district court.

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Michael Ellis 90 Wash. L. Rev. 405

Removal Jurisdiction over Mass Actions

Removal Jurisdiction over Mass Actions

March 30, 2015 | 90 Wash. L. Rev. 453

Abstract: The mass action provision in the Class Action Fairness Act of 2005 provides a federal forum for certain state court litigation that resembles class actions but otherwise could not be removed. The provision is triggered when state court plaintiffs propose a joint trial of common legal or factual issues. But defining what constitutes that triggering event has proved difficult for federal courts. They have not used a uniform framework to determine when they have subject matter jurisdiction over the purported mass action, and have lacked a common interpretation of the statutory language to begin the inquiry. That lack of coherence has created confusion for litigants and potentially upset the balance of power between federal and state courts. This Comment proposes a uniform framework for federal courts to use in construing their subject matter jurisdiction in mass action cases.

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Mallory A. Gitt 90 Wash. L. Rev. 453

A Shifting Landscape for Shifting Fees: Attorney-Fee Awards in Patent Suits After Octane and Highmark

A Shifting Landscape for Shifting Fees: Attorney-Fee Awards in Patent Suits After Octane and Highmark

March 30, 2015 | 90 Wash. L. Rev. 505

Abstract: Section 285 of the Patent Act authorizes courts to award attorney fees to the prevailing party in patent litigation in "exceptional cases." Until recently, interpretation of § 285 had been governed by a highly restrictive formulation set forth by the United States Court of Appeals for the Federal Circuit. In April 2014, the United States Supreme Court released a pair of decisions—Octane Fitness v. ICON Health & Fitness, and Highmark Inc. v. Allcare Health Management System, Inc.—that rejected the Federal Circuit’s interpretation of § 285 and reinvigorated the potential for fee shifting in patent suits. This Note argues that the Supreme Court’s decisions in Octane and Highmark broaden the potential for parties in patent litigation—particularly defendants—to seek and receive awards of attorney fees. This Note presents a survey and analysis of the district court opinions deciding attorney-fee motions under § 285 announced in the eight months following Octane and Highmark. The results of that survey indicate that defendants are now significantly more likely to receive attorney-fee awards than they were previously. This Note ultimately argues that defendants in patent suits should consider these new fee dynamics as a key element of their litigation strategy from the outset of patent defense cases. Doing so may enable them to take advantage of the newly expanded opportunity for fee shifting. To that end, this Note suggests that defendants should actively strive to inform district court judges about their broad authority to award fees. Additionally, this Note recommends that litigants avoid analogizing to prior successful cases when arguing for fees. Instead, this Note proposes that parties should follow the example set by the Supreme Court and focus on the plain meaning of the statute using common sense arguments.

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Darin Jones 90 Wash. L. Rev. 505

Public Records in Private Devices: How Public Employees’ Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

Public Records in Private Devices: How Public Employees’ Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

March 30, 2015 | 90 Wash. L. Rev. 545

Abstract: The Washington Public Records Act (PRA or "the Act") is a wide-ranging law that heavily weighs in favor of public disclosure of government processes. Initially enacted as a citizen initiative in 1972, the Act has many beneficial uses. For example, it provides insight into a local government’s decision-making process and ensures that citizens have access to their own government. However, the PRA’s potential to be used to invade personal privacy raises significant constitutional concerns. When an employee in possession of a public record invokes the protection of article I, section 7 of the Washington State Constitution, which protects an individual’s right to privacy, and refuses to consent to, for example, inspection of the employee’s personal computer, the agency’s obligation to produce the record should be at an end. This Comment argues that neither an agency nor a court may compel production of a public employee’s private electronic device for inspection under the PRA because employee privacy interests in the device are protected under article I, section 7 of the Washington State Constitution. The PRA does not provide the necessary "authority of law" to justify such an invasion. While this constitutional protection may, in certain situations, frustrate the efforts of requestors to access the workings of their government agencies, it also provides the public employees of Washington some measure of comfort that their private affairs are entitled to the same level of constitutional protection as their fellow citizens. Ultimately, the legislature should amend the PRA to clarify the obligations of agencies and to strike an appropriate balance between employee privacy and governmental transparency.

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Philip Paine 90 Wash. L. Rev. 545
Title Author Citation

Foreword: Fair Use in the Digital Age, and Campbell v. Acuff-Rose at 21

Foreword: Fair Use in the Digital Age, and Campbell v. Acuff-Rose at 21

June 30, 2015 | 90 Wash. L. Rev. 579

Abstract: Most students who study intellectual property in law school read Campbell v. Acuff-Rose Music, Inc., and I would guess that those who read it probably remember it, even years after the fact. It features not just pop culture, but an outré attention-seeking band with a lack of nuance, the Kardashians of the 1990s hip-hop scene. The case revolved around “Pretty Woman,” a not-very-good, probably unfamiliar-to-students rap parody of Roy Orbison’s well-loved and almost certainly familiar-to-students song, “Oh, Pretty Woman.” The larger-than-life rap group, 2 Live Crew, had faced legal battles of various sorts for years, and had earned great notoriety in connection with public debates over obscenity. Many cities in America found 2 Live Crew “unacceptable,” if not illegal, and actual charges of obscenity were raised in Florida and Louisiana for sales to minors and also for sales outright. In 1990, a Florida court had made legal history by being the first federal court to find a piece of music obscene when it ruled on 2 Live Crew’s album, As Nasty as They Wanna Be. In so doing, it led the way for prosecutors to go after record stores distributing the album as well as to arrest the group itself for performing “obscene” music. These well-publicized legal skirmishes made the members of 2 Live Crew well-known figures, to say nothing of vividly memorable defendants. If law students were inclined to forget the case, subsequent courts cite to Campbell so dutifully that forgetting it seems impossible. Of course, with the litigants’ hit singles including the embarrassingly successful song, “Me So Horny,” and others with titles and lyrics so lewd I would prefer not to cite them in a law review article, such a lapse in student memory seems unlikely. While it seems remarkable to many, Campbell is now, anthropomorphically speaking, not only old enough to buy the 2 Live Crew albums once deemed obscene, but also old enough to consume a beer legally while listening to them.

If Campbell had remained a narrow pop-culture case—a doctrinal one-hit wonder—it would not have possessed the capacity to generate so much enthusiasm, and such heated debate, among scholars and practitioners of high caliber. Yet gathered at the University of Washington School of Law for two days in April 2015 were forty of the leading and emerging experts in copyright law in the United States, to discuss the impact the case has had and to speculate about the directions fair use law will take in light of this watershed opinion. It remains, by many accounts, one of the three most important fair use opinions in American law. Reflecting on Campbell’s wide and deep footprint in the case law over the twenty-one years since the case was handed down forms the purpose for our Symposium and for this collection of excellent scholarly papers in the Washington Law Review.

To assess how and why the case has seemed to have so great an impact on copyright case law, the Washington Law Review has turned to eight authors to explore various issues associated with the opinion, from its arguments’ internal justifications and origins to its effect on lower courts’ decision-making. In this Foreword, I will offer a few thoughts to explain Campbell’s importance and to situate it historically, and I will touch briefly on the far-ranging contributions made by the very accomplished Articles in this Symposium issue.

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Zahr K. Said 90 Wash. L. Rev. 579

Campbell as Fair Use Blueprint?

Campbell as Fair Use Blueprint?

June 30, 2015 | 90 Wash. L. Rev. 597

Abstract: Friends, copyright geeks, I come not to bury Campbell, but to praise it. I might reasonably be considered a biased critic as Campbell took a number of suggestions from an article I wrote. Biased or not, I submit Campbell is a beautifully reasoned opinion, which has demonstrated in its twenty-one years that it provides a healthy framework for fair use analysis. That framework promotes the overall objectives of copyright; it protects the interests of rights holders; and it guards against putting “manacles upon science.”

This is not to say that every case decided under Campbell has been indisputably correct. But disagreement with some decisions of lower courts is not a condemnation of Campbell’s blueprint. Furthermore, fair use decisions will often involve difficult appraisals, susceptible to reasonable disagreement. Nor is it surprising to find inconsistency in lower court opinions. Copyright cases come infrequently, especially those with fair use questions. Many judges are often confronting the complexities of fair use for the first time, and may be quick to reach out for what look like easy handholds that are often based on errant dicta.

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Pierre N. Leval 90 Wash. L. Rev. 597

Market Effects Bearing on Fair Use

Market Effects Bearing on Fair Use

June 30, 2015 | 90 Wash. L. Rev. 615

Abstract: Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work. The Supreme Court’s decision just over twenty years ago in Campbell v. Acuff-Rose Music, Inc. opened the door to a laudable analytical framework for the bearing of market effects on fair use. First, Campbell supports a more full-bodied investigation of the market effects—both harms and benefits—of defendants’ works on plaintiffs’ copyrighted works. Courts can eliminate conclusory reasoning by appreciating that both market harms and benefits can matter in assessing fair use. In so doing, courts avoid weighing only the mere possibility that a licensing market does or could exist for a copyrighted work as a reflection of market harm and ignoring the possibility that a use of a copyrighted work might confer benefits on the copyright holder. Second, Campbell implied two important ways to divide relevant from irrelevant market effects. One ought to exclude market effects from consideration if they are empirically unlikely or if there are effects unrelated to the protectable aspects of the copyrighted work, such as its ideas or the societal value attributed to the work. This analytical framework for market effects bearing on fair use advances copyright’s goal of promoting the creation of artistic and cultural works from which society can benefit.

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Jeanne C. Fromer 90 Wash. L. Rev. 615

Campbell at 21/Sony at 31

Campbell at 21/Sony at 31

June 30, 2015 | 90 Wash. L. Rev. 651

Abstract: When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty over the scope of liability for new uses to litigate some new businesses into bankruptcy before their legality could be determined. These developments push fair use to shelter new uses and users. When lawyers for copyright owners complain that fair use has stretched beyond their expectations, they fail to acknowledge their own responsibility for its growth. This Article takes up these questions with particular attention to the thirty-one-year-old decision in Sony v. Universal Studios, and Congress’s assumptions about individual and contributory liability for personal copying before and after the Sony case.

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Jessica Litman 90 Wash. L. Rev. 651

Fair Use: An Affirmative Defense?

Fair Use: An Affirmative Defense?

June 30, 2015 | 90 Wash. L. Rev. 685

 

Abstract: The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc. solidified the treatment of fair use as an affirmative defense. However, treating fair use as an affirmative defense shifts the burden to the defendant while in most fair use cases plaintiffs are able to easily prove a prima facie case of infringement. This Article identifies that, despite its decision in Campbell, the Supreme Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. In fact, as explored in this Article, the legislative history cuts against viewing fair use as an affirmative defense, and the legislative history explicitly confirms what the statute clearly states: Congress did not intend fair use to be an affirmative defense; a defense, yes, but not an affirmative defense. The negative consequences of labeling fair use an affirmative defense support shifting back to what Congress intended. Fair use should not be seen as an affirmative defense, but should instead be treated as a defense that shapes the scope of a copyright owner’s rights.

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Lydia Pallas Loren 90 Wash. L. Rev. 685

The Imaginary Trademark Parody Crisis (and the Real One)

The Imaginary Trademark Parody Crisis (and the Real One)

June 30, 2015 | 90 Wash. L. Rev. 713

Abstract: In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and other speech. Demand letters and other pre-litigation maneuvering by markholders exemplify the real crisis in the law of trademark parody. Reform should concentrate on making excessive threats against speech less effective. I argue that fast-lane defensive doctrines that reduce the burden of litigating parody cases, such as safe harbors and a broad artistic relevance test, are more important than perfecting substantive parody doctrine. Meanwhile, we should shout the truth from the rooftops: Markholders who sue legitimate parodies lose. Their threats are empty.

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William McGeveran 90 Wash. L. Rev. 713

How Much Is Too Much?: Campbell and the Third Fair Use Factor

How Much Is Too Much?: Campbell and the Third Fair Use Factor

June 30, 2015 | 90 Wash. L. Rev. 755

Abstract: The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc. is probably best known for articulating the importance of transformativeness in analyzing fair use claims. The opinion gave less-noticed but important guidance on the third statutory fair use factor, which looks at the amount and substantiality of the portion of the plaintiff’s copyrighted work that the defendant used. Campbell explained that courts should evaluate this factor by inquiring whether the amount the defendant used was reasonable in light of her purpose. This Article examines the appellate fair use decisions since Campbell to investigate whether and how lower courts have used Campbell’s reasonableness approach. The Article pays particular attention to cases in which the defendant claiming fair use has used the plaintiff’s entire work, including in ways only recently made possible by new technologies.

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R. Anthony Reese 90 Wash. L. Rev. 755

Possible Futures of Fair Use

Possible Futures of Fair Use

June 30, 2015 | 90 Wash. L. Rev. 815

Abstract: This Article celebrates the twenty-one-year majority status of Campbell v. Acuff-Rose Music, Inc. Campbell has unquestionably had transformative impacts on the doctrine of fair use in U.S. copyright case law, making several significant contributions that go well beyond the Court’s endorsement of the “transformative” nature of a use as tipping in favor of fairness. Several notable cases have built upon the analytical foundation established in Campbell.

This Article also considers possible futures of fair use. What will fair use look like twenty-one years from now? Will it stay much as it is right now, or will it change, and if so, how? Some critics think that fair use has gone too far and are urging a return to a more restrictive scope for the doctrine. This Article considers and responds to various critiques of the present state of fair use law, including whether fair use is consistent with international treaty obligations. This Article concludes that fair use will survive these critiques and will continue to evolve to provide a useful mechanism for balancing the interests of authors and other rights holders, on the one hand, and subsequent authors and other users of copyrighted works, on the other hand. It discusses some new horizons that commentators have imagined for fair use to address certain problems that beset copyright law today. Of the possible futures of fair use, that which would preserve the status quo and expand fair use into new horizons is the one most likely to occur and most to be desired.

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Pamela Samuelson 90 Wash. L. Rev. 815

Content, Purpose, or Both?

Content, Purpose, or Both?

June 30, 2015 | 90 Wash. L. Rev. 869

Abstract: Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners’ authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative “purpose” is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay.

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Rebecca Tushnet 90 Wash. L. Rev. 869

"The Shameful Wall of Exclusion": How Solitary Confinement for Inmates with Mental Illness Violates the Americans with Disabilities Act

"The Shameful Wall of Exclusion": How Solitary Confinement for Inmates with Mental Illness Violates the Americans with Disabilities Act

June 30, 2015 | 90 Wash. L. Rev. 893

Abstract: Although solitary confinement is conventionally challenged under the “cruel and unusual” standard of the Eighth Amendment, this approach presents several intractable legal hurdles to successful claims. The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and its precursor, the Rehabilitation Act, provide innovative and non-constitutional causes of action for inmates with mental illness to challenge their solitary confinement. It is estimated that at least thirty percent of inmates in solitary confinement are mentally ill, a high percentage that is due to both the disproportionate number of mentally ill inmates who are isolated from the general prison population as well as the negative psychological impacts of this isolation.

Under Title II, Section 12132 of the ADA, prisoners with mental illness cannot “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” As recognized by U.S. Supreme Court precedent and interpreted by the Department of Justice, the ADA protects mentally ill inmates from discrimination on the basis of their disability. This Comment will argue that prison facilities discriminate under the ADA when they (1) isolate mentally ill inmates on the basis of their disability, (2) prolong inmates’ solitary confinement due to their preexisting or manifesting mental illness, or (3) fail to provide access to aids, benefits, or services to inmates with mental illness who need to be isolated for safety reasons.

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Jessica Knowles 90 Wash. L. Rev. 893

A New Generation of Class Action Cy Pres Remedies: Lessons from Washington State

A New Generation of Class Action Cy Pres Remedies: Lessons from Washington State

June 30, 2015 | 90 Wash. L. Rev. 943

Abstract: The use of cy pres as a mechanism to distribute residual funds in class actions has become increasingly common and the subject of much controversy. In the class action context, cy pres is an equitable remedy used by courts to appropriate class action settlement funds remaining after all identified class parties have been compensated to the funds’ “next best use,” usually to a charity. The controversy has stemmed primarily from a lack of clear judicially enforced standards on how and when to use cy pres. In light of recent controversy, both the Federal Rules Committee, and potentially the Supreme Court, are now considering stepping-in to consider changes to the doctrine. While most of the debate has focused on the federal courts, some states have been codifying their own approaches to provide structure and guidance to courts in the use of cy pres. In 2006, Washington State passed a groundbreaking amendment to Civil Rule 23, requiring that at least twenty-five percent of residual class action funds go the Legal Foundation of Washington, a charity providing legal aid services to indigent persons in the State of Washington. This rule is representative of a larger state trend towards adopting statutory approaches to cy pres that promote legal aid charities as appropriate cy pres recipients. Focusing primarily but not exclusively on Washington, this Comment argues that states have been effective “laboratories of innovation” in reaching workable solutions to the residual funds dilemma in consumer class actions. These codified state approaches to cy pres have shown to be effective methods for selecting and approving cy pres awards that provide for appropriate relief while curbing improper incentives and bias in the cy pres selection process.

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Cecily C. Shiel 90 Wash. L. Rev. 943

Washington's Reproductive Privacy Act: An Interpretation and Constitutional Analysis

Washington's Reproductive Privacy Act: An Interpretation and Constitutional Analysis

June 30, 2015 | 90 Wash. L. Rev. 993

Abstract: In Roe v. Wade, the Supreme Court declared that the “zone of privacy” inherent in the liberty component of the Due Process Clauses protected a woman’s right to choose when to terminate her pregnancy. Nevertheless, in the years following Roe, the Court held that the right of choice did not include a right to state assistance in obtaining an abortion. After decisions such as Webster v. Reproductive Services and Maher v. Roe, the state may express its preference for childbirth by denying the use of its funds, facilities, and personnel for abortion. Although a majority of the Court held that such selective funding did not violate the Constitution, certain Justices argued the state’s funding decision would have a coercive impact on a woman’s choice. In response to the Court’s decisions, Washington enacted the Reproductive Privacy Act, which requires that if the State directly or indirectly provides maternity care, it must also provide substantially equivalent abortion care. The Act also prevents the State from discriminating against the fundamental right of choice. No court, however, has interpreted the Act. Accordingly, this Comment analyzes the Privacy Act and suggests an interpretive framework for courts when determining whether the State has complied with the Act’s requirements. In addition, this Comment explores the tension between the Privacy Act and religious healthcare providers that may object to abortion, ultimately arguing that this Comment’s interpretation of the Privacy Act passes strict scrutiny under Article 1, section 11 of the Washington Constitution.

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Ross Tanaka 90 Wash. L. Rev. 993
Title Author Citation

Working with Cancer: How the Law Can Help Survivors Maintain Employment

Working with Cancer: How the Law Can Help Survivors Maintain Employment

October 30, 2015 | 90 Wash. L. Rev. 1039

Abstract: Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws and offers ideas about legal changes that would better meet the needs of cancer survivors and their families.

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Ann C. Hodges 90 Wash. L. Rev. 1039

Regulating Real-World Surveillance

Regulating Real-World Surveillance

October 30, 2015 | 90 Wash. L. Rev. 1113

Abstract: A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state’s interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression.

This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman’s framework of “boundary management” as a jumping-off point, I conceptualize privacy harm as interference in an individual’s ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts.

Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies—from automated license plate readers (ALPRs) to robots to drones.

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Margot E. Kaminski 90 Wash. L. Rev. 1113

The Law of Intimate Work

The Law of Intimate Work

October 30, 2015 | 90 Wash. L. Rev. 1167

Abstract: This Article introduces the concept of intimate work—intimate services provided by paid workers to a range of consumers—and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party—the consumer—into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to wage-and-hour and antidiscrimination law, among other consequences.

The current ad hoc approach to intimate work does harm. Law's separate regulation of intimacy and work fails to recognize the special value and vulnerability generated when the two overlap. At times, law protects only a narrow subset of intimate work, as the existing approach to non-compete agreements reveals. At other times, law gets intimate work backward, taking away protection at precisely the moment more protection is needed, as is the case with antidiscrimination law. The resulting law permits employers to promote discrimination in the formation of intimate work bonds, to discipline intimate workers who act to benefit consumers, to expose intimate workers and consumers to the abuse of personal information, and to break valuable intimate work bonds with impunity. These harms are only magnified with the rise of intimate work.

This Article proposes a unified law of intimate work sensitive to the value and vulnerability it generates. This law has implications for a wide swath of doctrines, and for gender equality, as women are especially harmed by the failure to value intimate work. Much of this law can be achieved by analogical adaptation of time-proven doctrines. For example, law should no longer ignore lost intimate work bonds as an injury when evaluating non-compete agreements or crafting remedies for termination. In other situations, new approaches are needed, such as limits on employers' ability to cultivate discriminatory consumer preferences. In the end, this new law of intimate work is designed to protect intimate workers and consumers while valuing relationships that are central to everyday life.

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Naomi Schoenbaum 90 Wash. L. Rev. 1167

Divorce Equality

Divorce Equality

October 30, 2015 | 90 Wash. L. Rev. 1245

Abstract: The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.

Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse's career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex "hybrid" cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of "pre-marital" property in order to count assets and income acquired outside of the marriage itself.

Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.

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Allison Anna Tait 90 Wash. L. Rev. 1245

Nothing Less than the Dignity of Man: The Eighth Amendment and State Efforts to Reinstitute Traditional Methods of Execution

Nothing Less than the Dignity of Man: The Eighth Amendment and State Efforts to Reinstitute Traditional Methods of Execution

October 30, 2015 | 90 Wash. L. Rev. 1313

Abstract: While lethal injection is the predominant method of executing death row inmates in America, European export bans and pharmaceutical manufacturers' refusal to supply execution drugs has impeded the ability of states' departments of corrections to obtain the drugs used for lethal injections. Facing a drug shortage, several death penalty states have considered legislation to reinstate the use of electric chairs, firing squads, and gas chambers. Efforts to restore traditional methods of capital punishment raise questions about whether such methods still comply with the Eighth Amendment's prohibition against cruel and unusual punishments. The Supreme Court has observed that the Eighth Amendment is not static, but draws its meaning from society’s "evolving standards of decency." To assess these evolving standards, the Court previously has looked to state laws to determine if a national consensus exists with respect to who is eligible for capital punishment and by what means states carry out death sentences. States have moved away from traditional methods of capital punishment. This trend suggests the traditional methods of capital punishment have fallen out of favor and can no longer withstand Eighth Amendment scrutiny.

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James C. Feldman 90 Wash. L. Rev. 1313

Towards an Institutional Challenge of Imprisonment for Legal Financial Obligation Nonpayment in Washington State

Towards an Institutional Challenge of Imprisonment for Legal Financial Obligation Nonpayment in Washington State

October 30, 2015 | 90 Wash. L. Rev. 1349

Abstract: Imprisonment for debt is resurfacing in the United States, primarily in the form of contempt proceedings for failure to pay court judgments. Although Washington's Constitution prohibits imprisonment for debt, the State repeatedly jails individuals for failing to pay legal financial obligations. This Comment explores the adverse consequences of this de facto debtors' prison system, describes the strong prohibition on imprisonment for debt found in article I, section 17 of the Washington Constitution, and argues that imprisonment for failing to pay legal financial obligations violates that strong prohibition. It then discusses how case law has degraded article I, section 17, making systemic constitutional challenges to the practice impractical. This Comment attempts to provide litigants with a comprehensive overview of strategies that can be used to challenge the current jurisprudence and the validity of imprisoning individuals for failing to pay legal financial obligations.

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Devon King 90 Wash. L. Rev. 1349

State v. Crumpton: How the Washington State Supreme Court Improved Access to Justice in Post Conviction DNA Testing

State v. Crumpton: How the Washington State Supreme Court Improved Access to Justice in Post Conviction DNA Testing

October 30, 2015 | 90 Wash. L. Rev. 1395

Abstract: Post-conviction DNA testing is a valuable tool for ensuring innocent people are not wrongfully incarcerated. Society has strong interests in confirming that available, yet previously untested, DNA evidence matches the person convicted. Access to post-conviction DNA testing, however, has been limited to maintain finality and avoid an over-burdened court system. This Note examines post-conviction DNA testing in Washington State, particularly after the 2014 Washington State Supreme Court decision, State v. Crumpton. In Crumpton, a majority of the Court—over a strongly worded dissent—read a favorable presumption into Washington's post-conviction DNA testing statute. The favorable presumption requires courts to presume the DNA test would be favorable to the petitioner, thus making it easier for convicted persons to access testing. Given the trend in other states, the astonishing number of exonerations, and the apparent falsity of the myth that DNA requests are over-burdening courts, Washington's interest in justice supports expanding access to post-conviction DNA testing.

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Jordan McCrite 90 Wash. L. Rev. 1395

Ridesharing's House of Cards: O'Connor v. Uber Technologies, Inc. and the Viability of Uber’s Labor Model in Washington

Ridesharing's House of Cards: O'Connor v. Uber Technologies, Inc. and the Viability of Uber’s Labor Model in Washington

October 30, 2015 | 90 Wash. L. Rev. 1431

Abstract: Ridesharing companies, namely Uber and Lyft, have taken the transportation market by storm. These companies offer a competitive alternative to taxis through using smartphone apps and more efficient service offerings. As part of their business model, ridesharing companies treat their drivers as independent contractors rather than employees to minimize labor costs. However, drivers do not benefit from remedial labor statutes and thus (1) must pay for operating costs, (2) are not guaranteed a minimum wage, and (3) do not receive overtime pay. In O'Connor v. Uber Technologies, Inc., a class of California Uber drivers are challenging their independent contractor status under California law. The test used by California courts to determine whether a worker is an independent contractor or an employee differs slightly from the test that Washington courts apply. In 2012, the Washington State Supreme Court adopted a worker-friendly "economic realities" test for determining whether workers are in fact independent contractors. Applying the lessons from O'Connor to Washington independent contractor law, this Comment calls into question the viability of Uber’s labor model in Washington.

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Henry Ross 90 Wash. L. Rev. 1431

An Ethical Dilemma: Attorneys' Duties Not to Reveal Elder Abuse in Washington State

An Ethical Dilemma: Attorneys' Duties Not to Reveal Elder Abuse in Washington State

October 30, 2015 | 90 Wash. L. Rev. 1471

Abstract: Elder abuse is a growing social issue in the United States. As a result of increasing awareness of elder abuse, every state has enacted mandatory or voluntary reporting laws to encourage public oversight of this vulnerable population. While mandatory and voluntary reporting statutes list a wide variety of professionals, such as physicians, social workers, and caretakers, as mandatory reporters, few of these statutes require attorneys to report elder abuse. Arguably, attorneys are in the best position to discover abuse of their elderly clients, as attorneys are advisors, counselors, and protectors of their clients' affairs. However, in many circumstances, an elderly client may be reluctant to report the abuse and insist there be no report made. In this situation, attorneys are bound by ethical rules against disclosing confidential client information without the client’s consent. In Washington State, this prohibition effectively bars an attorney from reporting emotional or financial abuse of her elderly client without the client's consent, even if such abuse threatens the client's health or to drain the elder's financial resources. While the protection of client confidences is a fundamental cornerstone of the attorney-client relationship, Washington State should recognize that all forms of elder abuse result in an increased risk of mortality, and consider amending its Rules of Professional Conduct to permit voluntary attorney disclosure of elder abuse.

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Margaret Sholian 90 Wash. L. Rev. 1471

Public Records in Private Devices: How Public Employees’ Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

Public Records in Private Devices: How Public Employees’ Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

March 30, 2015 | 90 Wash. L. Rev. 545

Abstract: The Washington Public Records Act (PRA or "the Act") is a wide-ranging law that heavily weighs in favor of public disclosure of government processes. Initially enacted as a citizen initiative in 1972, the Act has many beneficial uses. For example, it provides insight into a local government’s decision-making process and ensures that citizens have access to their own government. However, the PRA’s potential to be used to invade personal privacy raises significant constitutional concerns. When an employee in possession of a public record invokes the protection of article I, section 7 of the Washington State Constitution, which protects an individual’s right to privacy, and refuses to consent to, for example, inspection of the employee’s personal computer, the agency’s obligation to produce the record should be at an end. This Comment argues that neither an agency nor a court may compel production of a public employee’s private electronic device for inspection under the PRA because employee privacy interests in the device are protected under article I, section 7 of the Washington State Constitution. The PRA does not provide the necessary "authority of law" to justify such an invasion. While this constitutional protection may, in certain situations, frustrate the efforts of requestors to access the workings of their government agencies, it also provides the public employees of Washington some measure of comfort that their private affairs are entitled to the same level of constitutional protection as their fellow citizens. Ultimately, the legislature should amend the PRA to clarify the obligations of agencies and to strike an appropriate balance between employee privacy and governmental transparency.

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Philip Paine 90 Wash. L. Rev. 545
Title Author Citation

Energy-Environment Policy Alignments

Energy-Environment Policy Alignments

December 21, 2015 | 90 Wash. L. Rev. 1517

Abstract: Energy law focuses on making energy widely available at reasonable cost, and environmental law focuses on preventing pollution. As a result of these differences in their respective orientations, the two fields often work incoherently and even in conflict. Historically, federal energy law and environmental law have attempted to manage their interrelationships by imposing negative constraints on each other: Energy policies of the Federal Energy Regulatory Commission (FERC) must comply with requirements set forth in environmental statutes, and the Environmental Protection Agency’s (EPA’s) statutes contain energy-related requirements and exemptions. More recently, however, FERC and EPA have begun developing policies that create beneficial alignments between their respective fields. This Article argues that these policy alignments, which emphasize opportunities for positive synergy rather than negative constraints, offer a promising new direction for the energy-environment relationship. More broadly, policy alignments provide a potentially useful model for managing relationships among other overlapping fields as well.

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Todd S. Aagaard 90 Wash. L. Rev. 1517

Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches

Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches

December 21, 2015 | 90 Wash. L. Rev. 1583

Abstract: Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity have worked to apply the federal Clean Water Act to ocean acidification, while states and coastal regions are increasingly pursuing more broadly focused responses to ocean acidification’s local and regional impacts. This Article provides a first assessment of these relatively nascent legal efforts to address ocean acidification. It concludes first that ocean acidification should prompt renewed Clean Water Act attention to stormwater runoff and nutrient pollution. However, this Article also demonstrates that improved implementation of the Clean Water Act will not be enough. The realities of ocean acidification require more comprehensive legal and policy innovations so that coastal states and regions can adapt to its impacts now and into the future.

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Robin Kundis Craig 90 Wash. L. Rev. 1583

Coping with Uncertainty: Cost-Benefit Analysis, the Precautionary Principle, and Climate Change

Coping with Uncertainty: Cost-Benefit Analysis, the Precautionary Principle, and Climate Change

December 21, 2015 | 90 Wash. L. Rev. 1659

Abstract: Climate scientists are confident that greenhouse gases are causing climate change, but it is difficult to predict the severity of future climate change or its local impacts. Unfortunately, we cannot wait for these uncertainties to be resolved before addressing the issue of climate change. Policymakers use two different strategies for setting climate policy in the face of this uncertainty: cost-benefit analysis and the precautionary principle. Although there has been much discussion of these strategies in the abstract, there has been less effort to assess them in operation.

This Article analyzes these strategies and considers their application to climate risks in four case studies: determination of the social cost of carbon, international endorsement of a 2°C ceiling on warming, the Environmental Protection Agency’s endangerment finding, and the polar bear listing decision. The precautionary principle requires that feasible steps be taken to control risks in the face of uncertainty. This proposal works well in determining whether to regulate, but gives limited guidance about the appropriate level of regulation. Cost-benefit analysis of climate change is designed to determine the level of regulation, but it also encounters difficulties. Cost-benefit analysts must quantify the harm created by carbon emissions, which can be difficult because of uncertainty about the extent of the impact. Economists are also unsure how to take into account the large time-scale of climate change. Thus both approaches have their problems in practice.

There are some possible ways of combining economic analysis and the precautionary principle, but these have not yet been used in practice. In the meantime, the four case studies indicate that decision makers have managed to make reasonably defensible decisions despite the obstacles.

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Daniel A. Farber 90 Wash. L. Rev. 1659

“Underdog” Arbitration: A Plan for Transparency

“Underdog” Arbitration: A Plan for Transparency

December 21, 2015 | 90 Wash. L. Rev. 1727

Abstract: The use of mandatory, pre-dispute arbitration clauses in consumer, employment, health-care, and even nursing home agreements is ever-increasing, even though the general public has distrust and a lack of understanding of the nature of arbitration. The Supreme Court in AT&T Mobility LLC v. Concepcion, and then in American Express Co. v. Italian Colors Restaurant, has signaled firmly that mandatory pre-dispute arbitration is here to stay. This is true even for individual low-value claims in which one party, say the consumer or employee, has little or no bargaining power. I call these claims “underdog claims.” There have been numerous proposals to amend the Federal Arbitration Act (FAA) to exclude such claims from mandatory pre-dispute arbitration agreements and numerous criticisms raised in reaction to the Court’s jurisprudence. But with the Supreme Court’s theoretical view that arbitrating underdog claims is fair, these criticisms have gone unheeded by the majority of the Court. Now the question is how should we approach this new field of dispute resolution in which so many claims will be resolved? This Article analyzes the meritorious criticisms of underdog arbitration, which include bias, the repeat-player effect, the removal of publicity, the lack of judicial oversight, and a general concern about the lack of transparency. Then I propose a three-part solution for promoting transparency to establish a system in which underdog arbitration can work. I propose that the FAA be amended to require transparency in consumer and employee claims through: (1) uniform data reporting at the arbitration service-provider level; (2) requiring a written statement of decision in such disputes; and (3) data-reporting requirements by the business entity imposing mandatory pre-dispute arbitration on the employee/consumer stake-holder.

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Ramona L. Lampley 90 Wash. L. Rev. 1727

The Unwilling Donor

The Unwilling Donor

December 21, 2015 | 90 Wash. L. Rev. 1783

Abstract: For nearly forty years, the Supreme Court has evaluated campaign finance restrictions by weighing the First Amendment burden they place on a donor eager to engage the political process against the government’s interest in avoiding corruption of that process. Most recently, in McCutcheon v. FEC, the Court struck down aggregate contribution limits, allowing donors to give—and candidates and parties to solicit—millions of dollars directly to candidates, parties, and political action committees. Yet what should have been a significant victory for big donors was greeted with dismay by many of the same.

There is growing evidence that the story we have been telling ourselves about political money is, at best, incomplete, and that many donors give only reluctantly, out of fear of political repercussions. This Article examines the problem of the unwilling donor and argues for the first time that it has significant implications for campaign finance doctrine. Flipping the narrative allows a fresh view of key concepts, including the need for systemic campaign finance regulations, the Court’s current emphasis on quid pro quo corruption, and the First Amendment interests of campaign donors. Previous scholarship has overlooked the existence and constitutional import of this alternative, “extortionate,” framework.

The Unwilling Donor steps into this critical gap. The Article first provides an overview of the Supreme Court’s past campaign finance jurisprudence, including McCutcheon, almost all of which is premised on the notion of a willing donor. It then surveys empirical studies and historical data to demonstrate that the unwilling donor, while perhaps not a sympathetic character, is a very real one. The final Part of the Article contemplates the legal significance of the unwilling donor problem, concluding that it is relevant to the continued vitality of campaign finance efforts, to the Court’s analysis of campaign finance reform restrictions, and to future litigation strategies in this area.

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Jennifer Mueller 90 Wash. L. Rev. 1783

The Immortal Accusation

The Immortal Accusation

December 21, 2015 | 90 Wash. L. Rev. 1853

Abstract: In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering that system’s larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to prevent meaningful consideration of innocence claims. Appellate courts will eventually cease reconsideration of the conviction altogether, even, in many cases, where legitimate questions about the defendant’s guilt remain. But while convictions are eventually laid to rest, accusations that do not result in convictions can be reconsidered forever, in a variety of contexts, by a variety of government actors, applying low or non-existent standards of proof. Once guilt is obtained, the system aims to preserve it; if guilt is eluded, the system will pursue it.

This Article begins by reviewing the ways in which the criminal justice system seeks to obtain and maintain convictions. It then discusses the criminal justice system’s reliance on accusation evidence, identifying how uncertainty about the defendant’s culpability in the absence of a conviction drives decision makers to reconsider that outcome and replace it with their own determinations of guilt. It goes on to contrast the systemic reconsideration of convictions with the reconsideration of charges for which no conviction was obtained, using the doctrine of finality as a comparison point. Based on this analysis, it argues that the criminal justice system is structured to obtain and preserve findings of guilt, even if doing so does not advance the pursuit of truth or the conviction of the culpable. This Article then examines the implications of the systemic dedication to the pursuit and preservation of guilt, and suggests ways in which it might, and should, be dismantled.

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Lindsey Webb 90 Wash. L. Rev. 1853

Changing Course: Revisiting Instream Flow Rulemaking in Washington State Following Swinomish v. Ecology

Changing Course: Revisiting Instream Flow Rulemaking in Washington State Following Swinomish v. Ecology

December 21, 2015 | 90 Wash. L. Rev. 1901

Abstract: Since the adoption of Washington’s Water Resources Act in 1971, legal recognition of instream water uses to preserve fish, wildlife, and other environmental values have become firmly entrenched in Washington water law. By establishing “instream flow rules,” rules that require a certain amount of water to be left in streams before water may be withdrawn for any new uses, the Washington State Department of Ecology (Ecology) must protect the environment while also managing water to achieve “maximum net benefits” for the people of Washington State. Ecology may only allow new withdrawals of water that will impair established instream flows if it finds that “overriding considerations of the public interest” will be served. In two recent cases, Swinomish Indian Tribal Community v. Washington State Department of Ecology and Foster v. Washington State Department of Ecology,the Washington State Supreme Court invalidated Ecology’s reliance on this statutory exception in authorizing water rights that will impair instream flows, instead, interpreting the language of the exception very narrowly.

This Comment analyzes instream flow rulemaking in light of these cases, concluding that the decisions constrain Ecology’s ability to adapt existing rules to changing conditions, and that current law is therefore inadequate to address future challenges, including limited water availability and climate change. To better address these challenges, instream flow rules should be both more precise and more responsive to future conditions. To this end, Washington law should require instream flow rules to conform to a “best available science” standard tailored toward achieving healthy fish populations. In addition, investment in infrastructure for Washington’s existing Trust Water Rights Program to help expand water banking activities throughout the state, is needed to facilitate market transfers of water to supply unmet instream flows and new out-of-stream uses.

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Haylee J. Hurst 90 Wash. L. Rev. 1901

Digital Border Searches After Riley v. California

Digital Border Searches After Riley v. California

December 21, 2015 | 90 Wash. L. Rev. 1943

Abstract: The federal government claims that the Fourth Amendment permits it to search digital information on cell phones, laptops, and other electronic devices at the international border without suspicion of criminal activity, much less a warrant. Until recently, federal courts have generally permitted these digital border searches, treating them no differently from searches of luggage. Courts that have limited digital border searches have required only that the government establish reasonable suspicion for the most exhaustive kind of digital search. The Supreme Court has not yet weighed in, but last year it held in Riley v. California that the search incident to arrest exception to the warrant requirement does not apply to cell phones. This Comment analyzes how Riley affects the border search doctrine and concludes that it should change the debate in significant ways. First, Riley establishes that digital searches are categorically different from physical searches. This undermines the first wave of border search decisions and suggests that courts will have to analyze digital searches differently. Second, the Court recognized that digital searches could be even more intrusive than the search of one’s home. This finding weighs in favor of requiring at least reasonable suspicion, if not probable cause, for digital border searches. Third, the Court provides a test for determining when to deviate from the warrant requirement in light of new technology. The Court’s analysis on this question supports reconsidering whether the border search exception—traditionally applied to searches of persons and physical property—should apply to searches of digital information.

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Thomas Mann Miller 90 Wash. L. Rev. 1943

An Ethical Dilemma: Attorneys' Duties Not to Reveal Elder Abuse in Washington State

An Ethical Dilemma: Attorneys' Duties Not to Reveal Elder Abuse in Washington State

October 30, 2015 | 90 Wash. L. Rev. 1471

Abstract: Elder abuse is a growing social issue in the United States. As a result of increasing awareness of elder abuse, every state has enacted mandatory or voluntary reporting laws to encourage public oversight of this vulnerable population. While mandatory and voluntary reporting statutes list a wide variety of professionals, such as physicians, social workers, and caretakers, as mandatory reporters, few of these statutes require attorneys to report elder abuse. Arguably, attorneys are in the best position to discover abuse of their elderly clients, as attorneys are advisors, counselors, and protectors of their clients' affairs. However, in many circumstances, an elderly client may be reluctant to report the abuse and insist there be no report made. In this situation, attorneys are bound by ethical rules against disclosing confidential client information without the client’s consent. In Washington State, this prohibition effectively bars an attorney from reporting emotional or financial abuse of her elderly client without the client's consent, even if such abuse threatens the client's health or to drain the elder's financial resources. While the protection of client confidences is a fundamental cornerstone of the attorney-client relationship, Washington State should recognize that all forms of elder abuse result in an increased risk of mortality, and consider amending its Rules of Professional Conduct to permit voluntary attorney disclosure of elder abuse.

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Margaret Sholian 90 Wash. L. Rev. 1471
Volume 89
Published 2014
Number 1
Number 2
Number 3
Number 4
Title Author Citation

The Scored Society: Due Process for Automated Predictions

The Scored Society: Due Process for Automated Predictions

March 01, 2014 | 89 Wash. L. Rev. 1

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, systems could launder biased and arbitrary data into powerfully stigmatizing scores.

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Danielle Keats Citron & Frank Pasquale 89 Wash. L. Rev. 1

Policing by Numbers: Big Data and the Fourth Amendment

Policing by Numbers: Big Data and the Fourth Amendment

March 01, 2014 | 89 Wash. L. Rev. 35

(Excerpt) The age of “big data” has come to policing. In Chicago, police officers are paying particular attention to members of a “heat list”: those identified by a risk analysis as most likely to be involved in future violence. In Charlotte, North Carolina, the police have compiled foreclosure data to generate a map of high-risk areas that are likely to be hit by crime. In New York City, the N.Y.P.D. has partnered with Microsoft to employ a “Domain Awareness System” that collects and links information from sources like CCTVs, license plate readers, radiation sensors, and informational databases. In Santa Cruz, California, the police have reported a dramatic reduction in burglaries after relying upon computer algorithms that predict where new burglaries are likely to occur. The Department of Homeland Security has applied computer analytics to Twitter feeds to find words like “pipe bomb,” “plume,” and “listeria.”

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Elizabeth E. Joh 89 Wash. L. Rev. 35

Artificial Meaning

Artificial Meaning

March 01, 2014 | 89 Wash. L. Rev. 69

(Excerpt) As artificial intelligences (AI) become more powerful and pervasive, communication by, with, and among AIs has become a common feature of everyday life. Early in the history of AI, there was ELIZA—a simple program that utilized simple pattern-matching algorithms to simulate a psychotherapist interacting with the user of the program.1 Human communication with AIs has been depicted in film and fiction, from the iconic confrontation of humans with HAL in 2001: A Space Odyssey2 to the very human Theodore who falls in love with an artificially intelligent operating system named Samantha in Her.3 But complex communication with AIs is part of everyday life in modern technological societies, including Apple’s Siri, automated telephonic service systems for airlines, online ordering systems for merchants like Amazon.com, and characters in video games who converse with human players. All of these contexts involve artificial meaning, which we can contrast with communications by natural persons (human beings)—which we can call natural meaning.

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Lawrence B. Solum 89 Wash. L. Rev. 69

Machine Learning and Law

Machine Learning and Law

March 01, 2014 | 89 Wash. L. Rev. 87

(Excerpt) What impact might artificial intelligence (AI) have upon the practice of law? According to one view, AI should have little bearing upon legal practice barring significant technical advances. The reason is that legal practice is thought to require advanced cognitive abilities, but such higher-order cognition remains outside the capability of current AI technology. Attorneys, for example, routinely combine abstract reasoning and problem solving skills in environments of legal and factual uncertainty. Modern AI algorithms, by contrast, have been unable to replicate most human intellectual abilities, falling far short in advanced cognitive processes—such as analogical reasoning—that are basic to legal practice. Given these and other limitations in current AI technology, one might conclude that until computers can replicate the higher-order cognition routinely displayed by trained attorneys, AI would have little impact in a domain as full of abstraction and uncertainty as law.

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Harry Surden 89 Wash. L. Rev. 87

Machines Without Principals: Liability Rules and Artificial Intelligence

Machines Without Principals: Liability Rules and Artificial Intelligence

March 01, 2014 | 89 Wash. L. Rev. 117

(Excerpt) The idea that humans could, at some point, develop machines that actually “think” for themselves and act autonomously has been embedded in our literature and culture since the beginning of civilization. But these ideas were generally thought to be religious expressions—what one scholar describes as an effort to forge our own Gods—or pure science fiction. There was one important thread that tied together these visions of a special breed of superhuman men/machines: They invariably were stronger, smarter, and sharper analytically; that is, superior in all respects to humans, except for those traits involving emotional intelligence and empathy. But science fiction writers were of two minds about the capacity of super-smart machines to make life better for humans.

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David C. Vladeck 89 Wash. L. Rev. 117

The Parcel as a Whole: Defining the Relevant Parcel in Temporary Regulatory Takings Cases

The Parcel as a Whole: Defining the Relevant Parcel in Temporary Regulatory Takings Cases

March 01, 2014 | 89 Wash. L. Rev. 151

In regulatory takings cases, courts must look at the “parcel as a whole” rather than individual property interests to determine whether a taking has occurred. The Supreme Court, however, has not clarified how exactly the relevant parcel should be defined. The Federal Circuit’s recent decision in CCA Associates v. United States highlights the confusion surrounding the parcel as a whole. It also highlights the continuing need to clarify how the relevant parcel should be defined in temporary regulatory takings cases. This Comment analyzes the parcel as a whole in temporary regulatory takings cases, specifically those involving lost income. It argues that the relevant parcel should not be measured by the property’s entire lifetime value, as the Federal Circuit decided in Cienega Gardens v. United States (Cienega X) and ultimately reaffirmed in CCA Associates. Neither Supreme Court jurisprudence nor standard economics supports this interpretation of the parcel as a whole. Instead, this Comment argues that the relevant parcel should be determined by the owner’s investment in the property in consideration with principles of fairness and justice. This approach harmonizes Supreme Court jurisprudence and standard economics. It also achieves uniformity and equitability in temporary regulatory takings cases involving lost income.

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Laura J. Powell 89 Wash. L. Rev. 151

Reexamining Crawford: Poll Worker Error as a Burden on Voters

Reexamining Crawford: Poll Worker Error as a Burden on Voters

March 01, 2014 | 89 Wash. L. Rev. 175

American elections are administered by poll workers—individuals who are recruited and trained by states and localities for the particular task of helping people vote on Election Day. Several layers of law govern poll workers, including federal constitutional law, federal statutory law, state constitutional law, state statutory law, and local law. Among these laws are voter photo identification laws, or voter ID laws. Nineteen states have passed voter ID laws in the last ten years. With some variation, these laws require a person to present photo identification before he or she is allowed to vote. In 2008, the United States Supreme Court upheld Indiana’s voter identification law as constitutional against a facial challenge, holding that the law’s burden on the right to vote was reasonable in light of states’ interest in administering elections. In many states with a voter ID law, it is the responsibility of poll workers to check and verify a voter’s identification before the voter may cast a regular ballot. Poll workers are charged with this critical task despite the fact that they are not professional election administration staff, often lack experience and training, and—as a result—may be prone to error. This Comment explores how complicated laws—such as voter ID laws— exacerbate poll worker error in election administration. It argues that courts should consider this error when faced with constitutional challenges to such laws. Specifically, courts should consider poll worker error as a burden on voters, and therefore should apply heightened constitutional scrutiny to state laws—such as voter ID laws—that exacerbate poll worker error.

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Lauren Watts 89 Wash. L. Rev. 175

The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads for Washington Defenders and Clients

The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads for Washington Defenders and Clients

March 01, 2014 | 89 Wash. L. Rev. 217

(Excerpt) Santos Rivas was appointed a defense attorney in Yakima County in August 1999. About a month later, he appeared in court. Upon arrival, Rivas discovered that his public defender, Steven Michels, was now presiding over his case as judge. Then-Judge Michels persuaded Rivas not only to fire Michels as his attorney, but also to plead guilty to all charges. Judge Michels did not inform Rivas of his right to appoint new counsel and pressured his former client to proceed without an attorney in his guilty plea.

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Andrea Woods 89 Wash. L. Rev. 217
Title Author Citation
"All His Sexless Patients": Persons with Mental Disabilities and the Competence to Have Sex

"All His Sexless Patients": Persons with Mental Disabilities and the Competence to Have Sex

June 01, 2014 | 89 Wash. L. Rev. 257

(Excerpt) An article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: “The recognition that individuals with disabilities have a desire for sexual relationships with other people is a relatively new concept in the scientific community.” We believe that this observation—wildly at odds with much of the literature referred to in this Article and in another paper by the two authors—exemplifies the discussion in our previous paper about the confusion and misinformation that permeates all of disability law and policy, especially mental disability law. The baseline, rather, for any scholarly inquiry into this subject, must be that “[i]ndividuals [with disabilities] have the same needs for intimate relationships and sexual expression as everyone else.”

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Michael L. Perlin & Alison J. Lynch 89 Wash. L. Rev. 257
Much Ado About Something: The First Amendment and Mandatory Labeling of Genetically Engineered Foods

Much Ado About Something: The First Amendment and Mandatory Labeling of Genetically Engineered Foods

July 01, 2014 | 89 Wash. L. Rev. 301

Since first becoming commercially available in the mid-1990s, genetically engineered varieties of certain major food crops have come to dominate the American agricultural landscape. More than eighty percent of the corn and ninety percent of the soybeans grown in the United States are now produced from genetically engineered (GE) seed. Correspondingly, food containing ingredients produced through biotechnology has become ubiquitous—if not readily apparent—in American grocery markets. The Congressional Research Service estimates that two-thirds of processed conventional foods contain ingredients produced through genetic engineering.

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Stephen Tan & Brian Epley 89 Wash. L. Rev. 301
Enlightened Regulatory Capture

Enlightened Regulatory Capture

June 01, 2014 | 89 Wash. L. Rev. 329

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest: (1) legislatively mandated adoption of recommendations by an advisory committee comprising private interests and “reduced-bias” subject matter experts; (2) relaxed procedural constraints for committee action to prevent internal committee capture; and (3) opportunities for committee participation to be worthwhile for representatives of private parties beyond the mere opportunity to advance their own interests. This Article presents recommendations based on those characteristics as to how and when legislatures may endeavor to replicate this success in other industries to improve both the legitimacy and efficacy of the regulatory process.

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David Thaw 89 Wash. L. Rev. 329
The Constitutional Structure of Voting Rights Enforcement

The Constitutional Structure of Voting Rights Enforcement

June 01, 2014 | 89 Wash. L. Rev. 379

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the power to enforce the amendment through appropriate legislation. Section 2—with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation)—illustrates the proper means-ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

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Franita Tolson 89 Wash. L. Rev. 379
Gully and the Failure to Stake a 28 U.S.C. § 1331 “Claim”

Gully and the Failure to Stake a 28 U.S.C. § 1331 “Claim”

June 01, 2014 | 89 Wash. L. Rev. 441

In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view—read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in chief, for inclusion in federal question jurisdiction—does not have a unique affinity to legal-process-school jurisprudential norms. To the contrary, legal-process-school principles support a more traditional rights-and-causes-of-action approach to § 1331 doctrine, understood as a means of effectuating the principle of congressional control over lower federal court jurisdiction. Second, I contend that Gully, understood as espousing a transaction or claim-centric approach to § 1331, lays a poor foundation for this doctrine. Indeed, this interpretation of Gully is both inaccurate and anachronistic. In this same vein, I note that the Supreme Court’s contemporary use of the term “claim” subsumes the very notions of right and cause of action that the claim-centric view aims to avoid, and that a claim-centered view is likely to cause more practical havoc than help. Finally, I argue that this return to Gully is more emblematic of a pragmatic approach to § 1331 jurisdictional law, which I reject within the confines of the broader contemporary discussion regarding the role of “simple” versus “complex” jurisdictional regimes.

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Lumen N. Mulligan 89 Wash. L. Rev. 441
The Claim-Centered Approach to Arising-Under Jurisdiction: A Brief Rejoinder to Professor Mulligan

The Claim-Centered Approach to Arising-Under Jurisdiction: A Brief Rejoinder to Professor Mulligan

June 01, 2014 | 89 Wash. L. Rev. 487

(Excerpt) My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies. My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does mean, however, that Gully points to the fundamental question presented in the jurisdictional analysis.

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Simona Grossi 89 Wash. L. Rev. 487
Arriving at Clearly Established: The Taser Problem and Reforming Qualified Immunity Analysis in the Ninth Circuit

Arriving at Clearly Established: The Taser Problem and Reforming Qualified Immunity Analysis in the Ninth Circuit

June 01, 2014 | 89 Wash. L. Rev. 491

Federal law allows private citizens to bring civil suits against government officials who violate their constitutional rights while acting under the color of state law. The doctrine of qualified immunity shields officials from liability when their conduct does not violate clearly established constitutional rights. When determining whether a right was clearly established at the time of a particular injury, the Ninth Circuit purportedly looks to whatever decisional law is available to inform its analysis. This Comment examines recent Taser-related cases to show that, in practice, courts in the Ninth Circuit actually take two divergent approaches. Some look only to binding, factually similar precedent, while others are willing to look outside of a case’s factual context and rely on both published and unpublished cases from across the country. This inconsistency creates three major problems: inconsistent outcomes for litigants, confusion for district courts and government officials, and a propensity for defining clearly established law at an impermissibly high level of generality. This Comment argues that adopting the three-part framework articulated by the Eleventh Circuit would mitigate each of these issues and bring much needed clarity to the law of qualified immunity in the Ninth Circuit.

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Kate Seabright 89 Wash. L. Rev. 491
Not-So-Harmless Error: A Higher Standard for Mitigation Errors on Capital Habeas Review

Not-So-Harmless Error: A Higher Standard for Mitigation Errors on Capital Habeas Review

June 01, 2014 | 89 Wash. L. Rev. 515

This Comment looks at how federal courts handle mitigation errors during the penalty phase of capital punishment cases on habeas corpus review; it argues that the United States Supreme Court should expressly adopt the Chapman “harmless beyond a reasonable doubt” standard rather than the Brecht “substantial and injurious effect” standard. The heightened stakes of capital sentencing dictate that a higher standard of review should apply. The Court has yet to rule on this matter, and the United States Courts of Appeals cannot agree upon which standard to apply. Currently, a lopsided circuit split exists regarding whether harmless error review applies to mitigation errors, and if so, what standard should apply. While the Court has yet to decide this issue, it has dealt with harmless error review in non-capital cases. The Chapman harmless error standard, promulgated by the Court in 1967, requires that a state must prove that any constitutional errors were harmless beyond a reasonable doubt. In 1993, the Brecht Court found the Chapman standard too onerous for collateral attacks and determined that a lower standard was necessary: during collateral attacks, the defendant must show that the error had a substantial and injurious effect upon determining the jury’s verdict. Chapman placed the burden upon the State; Brecht placed the burden upon the defendant. This Comment argues that the higher Chapman standard should apply to collateral attacks in capital habeas cases because of the possibility of a total deprivation of one’s life and liberty. The Court has before determined that “death is different,” and in keeping with that sentiment, the Court should adopt an error standard that similarly acknowledges the difference between life and death.

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Ryan C. Thomas 89 Wash. L. Rev. 515
“Without Good Cause”: The Case for a Standard-Based Approach to Determining Worker Qualification for Unemployment Benefits

“Without Good Cause”: The Case for a Standard-Based Approach to Determining Worker Qualification for Unemployment Benefits

June 01, 2014 | 89 Wash. L. Rev. 559

Under Washington’s Employment Security Act, workers who voluntarily quit their jobs are qualified to receive unemployment benefits only if they establish “good cause” for leaving work. For forty years, the agency that administers the statute and the courts had substantial discretion to find good cause under the statute’s flexible, standard-based approach. However, beginning in 1977, the legislature began to restrict the scope of that discretion by moving toward a rule-based approach. This trend reached its apex in 2009, when the legislature stripped the agency and the courts of all discretion and limited good cause to eleven reasons enumerated in the statute. This Comment argues that Washington should restore administrative and judicial discretion and return to a standard-based approach to determining whether claimants have good cause for voluntarily leaving work. First, a standard is more theoretically sound than a rule because workers’ reasons for leaving work vary significantly and because the usual rationales for rules do not justify their use in the voluntary quit statute. Second, the rule disqualifies claimants who leave work for reasons consistent with the purpose of the Act. Finally, a standard is necessary to advance the purpose of the Act and of unemployment compensation generally.

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Emily Toler 89 Wash. L. Rev. 559
Loss-of-Chance Doctrine in Washington: From Herskovits to Mohr and the Need for Clarification

Loss-of-Chance Doctrine in Washington: From Herskovits to Mohr and the Need for Clarification

June 01, 2014 | 89 Wash. L. Rev. 603

Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification—definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term “loss of chance” as if it has a single, fixed meaning, when in fact it is an umbrella term that covers three separate—though sometimes overlapping—theories of recovery. This Comment first identifies and explains the different meanings attached to loss of chance, and briefly describe its varying implementation among states over the past three decades. Next, it tracks the evolution of loss-of-chance doctrine in Washington State from its inception to its current ambiguous status. Then this Comment analyzes the difficulties arising from ambiguities in the Washington State Supreme Court’s decisions in Herskovits v. Group Health Coop. of Puget Sound and Mohr v. Grantham, as well as and the recent Washington State Court of Appeals for Division III decision in Estate of Dormaier v. Columbia Basin Anesthesia, PLLC. The critique of these three cases underscores the extent to which ambiguities in loss-of-chance doctrine currently lead to inconsistent and unpredictable standards of causation and burdens of proof. This Comment concludes by suggesting concrete solutions to create a coherent and equitable doctrine that will allow plaintiffs to recover for loss of chance without creating incentives for unfair manipulation of common law tort standards. In order to illustrate the workability of these suggestions, this Comment applies them to the facts of Estate of Dormaier v. Columbia Basin Anesthesia, PLLC. While this Comment focuses primarily on Washington State law, the solutions presented are applicable in any jurisdiction that struggles with the loss-of-chance doctrine.

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Matthew Wurdeman 89 Wash. L. Rev. 603
Title Author Citation

Solving Jurisdiction's Social Cost

Solving Jurisdiction's Social Cost

October 01, 2014 | 89 Wash. L. Rev. 653

Federal court subject-matter jurisdiction rules incur a significant social cost—when jurisdiction is found lacking, courts must dismiss, no matter how many years and resources the parties have spent on the case. Indeed, hundreds of belated jurisdictional dismissals occur each year after parties have already engaged in discovery, dispositive motions, or even trial. Federal judges tolerate this waste largely because they view nonwaivable jurisdictional rules as a function of structural values rooted in the Constitution, rather than efficiency concerns. In contrast, scholars tend to focus primarily on efficiency arguments while discussing jurisdictional nonwaivability, de-emphasizing important structural interests. Both theories are overly monistic and fail to consider the full range of jurisdictional values. This Article advances two claims. First, jurisdictional values are pluralistic and multipolar, implicating structural and efficiency interests that are fundamentally incommensurable. We should not simply attempt to maximize a single set of jurisdictional values. And because there is no single unit of measurement for weighing structural values such as “separation of powers” against efficiency interests such as “litigation waste,” we should resist forcing these interests through a cost-benefit analysis. Instead, courts and rule makers should seek equilibrium among all relevant values when fashioning jurisdictional rules. Second, using this equilibration approach, the Article proposes a solution to jurisdiction’s social cost: Courts should resolve all subject-matter jurisdiction questions at the outset of litigation. Federal district courts should affirmatively certify the existence of jurisdiction in every case; after that point, objections to statutory federal jurisdiction would be waived. Moreover, to accommodate both structural and efficiency interests, appellate courts should have discretion to immediately review jurisdictional orders when the benefits of doing so outweigh the costs. Lastly, federal courts should use the threat of sanctions to deter private-party abuse of jurisdictional rules.

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Dustin E. Buehler 89 Wash. L. Rev. 653

The Not So Speedy Trial Act

The Not So Speedy Trial Act

October 01, 2014 | 89 Wash. L. Rev. 709

The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public’s significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA’s goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been effectively marginalized by federal district and circuit courts. The reason this happens is simple: no actor in the criminal justice system has an incentive to follow it. Prosecutors and defense attorneys alike rely on delays in the system; and overburdened district courts, which have opposed the STA since its inception, have failed to enforce it as written. Appellate courts, too, prefer to thwart the STA’s requirements rather than reverse a conviction obtained by otherwise constitutional means. The institutional inertia that pulls courts away from the STA’s commands has led to a predictable result: an increase in pretrial delays, the very ill that Congress intended to cure when it passed the Act. This Article highlights and examines the ways in which federal courts undermine the STA and details a number of open circuit court conflicts involving the Act. The Article then proposes a comprehensive, but non-Congressional, fix that prescribes how every actor in the criminal justice system can comply with the Act as Congress intended.

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Shon Hopwood 89 Wash. L. Rev. 709

Outsourcing Corporate Accountability

Outsourcing Corporate Accountability

October 01, 2014 | 89 Wash. L. Rev. 747

This Article addresses the problem of preventing human rights violations abroad that result from the globalization of business. It specifically explores the challenge of improving labor standards in global value chains. The modern business has changed dramatically and has “gone global” in order to court foreign markets and secure resources, including labor. Familiar household names, such as Nike and Apple, have “outsourced” many of their functions to suppliers overseas. As multinational buyers, they dominate one end of the global value chain. At the opposite end of the value chain are the local managers and owners of the factories and workhouses where tablets are assembled, running shoes are made, and gowns are sown. These facilities are often the sites of serious human rights violations, such as forced labor and child labor. Some actors have attempted to rein in transnational corporate misconduct through litigation in domestic courts regarding the corporation’s actions abroad. However, after Kiobel v. Royal Dutch Petroleum, it is unclear how successful such strategies will prove in the future. This Article takes a different approach and focuses on preventing these human rights violations by improving labor practices in global value chains. Unfortunately, current approaches focus on encouraging better due diligence regarding the behavior of their suppliers. These approaches rely on auditing, monitoring, and disclosures and have dominated international (UN’s Protect, Respect, and Remedy Framework), national (Danish Act on Financial Statement), and sub-state (California’s Transparency in Supply Chains Act of 2010) efforts to combat human rights violations. However, this Article explains that these and similar efforts will have limited effects because of the problem of misaligned incentives between buyers and suppliers in global value chains. Suppliers have different business profiles, interests, and constraints compared to their multinational buyers. Therefore, conventional drivers for better labor practices that rely on reputational risks and consumer boycotts will not work for suppliers. Instead, public actors and other stakeholders must identify incentives that are appropriate for suppliers. Second, they must also adopt a reflexive law governance approach in order to transmit these incentives effectively in global value chains. This Article concludes by offering examples of strategies that public actors should adopt in order to prevent another Foxconn or Rana Plaza tragedy.

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Kishanthi Parella 89 Wash. L. Rev. 747

The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster's Computer and Bloody Knives Under the Stairs

The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster's Computer and Bloody Knives Under the Stairs

October 01, 2014 | 89 Wash. L. Rev. 819

Abstract:  With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention. Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, even if forensic characteristics are altered? What should the lawyer do with real evidence afterward? May the lawyer ever retain real evidence without being accused of impeding access? May the lawyer return evidence to where it was found or to the person who delivered it? What advice should the lawyer give to the possessor? And what of the problem of material that may not merely be evidence but also may constitute contraband? This Article critically examines the law of real evidence under the search light of professional responsibility, attorney-client confidentiality, and the constitutional rights of criminal defendants.

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Gregory C. Sisk 89 Wash. L. Rev. 819

This Is Your Sword: How Damaging Are Prior Convictions to Plaintiffs in Civil Trials?

This Is Your Sword: How Damaging Are Prior Convictions to Plaintiffs in Civil Trials?

October 01, 2014 | 89 Wash. L. Rev. 901

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true. This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results. The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero-sum credibility contest wherein believing the plaintiff’s story necessarily meant disbelieving the defendant’s (and vice versa). This “zero-sum” effect did not appear in the control version of the trial.

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Kathryn Stanchi & Deirdre Bowen 89 Wash. L. Rev. 901

Miller's Promise: Re-Evaluating Extreme Criminal Sentences for Children

Miller's Promise: Re-Evaluating Extreme Criminal Sentences for Children

October 01, 2014 | 89 Wash. L. Rev. 963

Scientific, legal, and societal notions about youth have come together to reaffirm an age-old concept—children are different and they change as they grow older. In recent decisions, the United States Supreme Court has required courts and legislatures to take a new look at extreme criminal sentences imposed upon children. Life without parole sentences and decades-long, determinate sentences are constitutionally suspect when applied to children because they fail to adequately account for the dynamism of youth. Miller v. Alabama and Graham v. Florida announced two important principles: (1) that an extreme sentence can only be imposed upon a child following an individualized hearing at which a court considers myriad mitigating factors; and (2) that in the vast majority of cases, the child should have a realistic opportunity for parole at some point in the future. During the recently completed 2014 session, the Washington legislature took steps to address some of the Supreme Court’s concerns, but work remains before Washington law fully incorporates the principles laid out in Miller and Graham. Legal principles announced in the Court’s recent cases require individualized sentencing hearings any time a child may be sentenced to decades behind bars. Moreover, in no case should a child be sentenced to spend the rest of his life in prison without some possibility of release in the future.

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Nick Straley 89 Wash. L. Rev. 963

Keeping up with Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State

Keeping up with Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State

October 01, 2014 | 89 Wash. L. Rev. 1009

Abstract:  Sexting can be a costly activity, particularly for teenagers. As more teenagers engage in sending sexually explicit images to one another, the likelihood of serious long-term consequences increases. When sexting is used as a means to bully, the potential severity of consequences also increases. In many jurisdictions, prosecutors may charge juveniles caught sexting with possession or distribution of child pornography. At the same time, some states have recognized the severity of such a charge and found other ways of addressing the teen sexting problem. This Comment addresses the current issues surrounding juvenile sexting by examining empirical data, legal responses, and legislative reactions. It argues that Washington’s current approach to juvenile sexting is inappropriate and should be amended. It suggests a two-tiered statute that separates non-malicious juvenile sexting from malicious juvenile sexting. The proposed statute, which would punish cyberbullying and malicious juvenile sexting more severely, will allow Washington to effectively deter harmful behavior while taking into account juvenile immaturity.

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Reid McEllrath 89 Wash. L. Rev. 1009

Drafting Agreements as an Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223

Drafting Agreements as an Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223

October 01, 2014 | 89 Wash. L. Rev. 1035

Abstract:  This Comment argues that Washington State Bar Association Advisory Opinion 2223 (WSBA Advisory Opinion 2223) should be revisited. WSBA Advisory Opinion 2223 reaches the unqualified conclusion that an attorney-mediator violates the Washington Rules of Professional Conduct (RPC) when drafting legal documents such as Property Settlement Agreements, Orders of Child Support, or Parenting Plans for unrepresented parties. WSBA Advisory Opinion 2223 creates confusion because it contains two significant flaws: (1) an omission of relevant comments to the RPC, and (2) an inconsistent reliance on extra-jurisdictional authority. Given WSBA Advisory Opinion 2223’s practical ramifications, the opinion should be reconsidered. Reexamining this opinion should include a thorough discussion of all applicable RPC comments and an analysis of guidance from other jurisdictions that have faced the same question. These considerations may lead to a conclusion different from the one reached in WSBA Advisory Opinion 2223. Yet because Washington attorneys turn to WSBA advisory opinions for guidance concerning their ethical obligations, it is particularly important that WSBA Advisory Opinion 2223 be accurate, comprehensive, and clear.

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Caitlin Park Shin 89 Wash. L. Rev. 1035
Title Author Citation

Foreword: Compensated Surrogacy in the Age of Windsor

Foreword: Compensated Surrogacy in the Age of Windsor

December 17, 2014 | 89 Wash. L. Rev. 1069

Having my baby, what a lovely way of saying how much you love me; Having my baby, what a lovely way of saying what you’re thinking of me . . . .

When Paul Anka sang those chart-topping words in 1974, the first sperm bank had recently opened in New York City, and it would still be four years before Louise Brown, the first "test-tube" baby, was born in England and yet another eight years before the now-famous Baby M was born. In celebrating his wife’s traditional pregnancy, Anka’s song achieved a rare coup—topping both the Billboard Hot 100 and many lists of the worst songs ever. The song made people of many different viewpoints commonly uncomfortable. Feminists and other liberal thinkers criticized it as misogynistically claiming male dominance ("my," not "our" baby) and seeming to value women only for their capacity to reproduce. At the same time, religious and conservative thinkers took exception to its cavalier approach to abortion ("[d]idn’t have to keep it . . . [y]ou could have swept it from your life").

The song’s controversy has not abated with time; rather, it continues to stir debate. The raw and lasting nerves the song has touched are not unlike those set on edge by the topic of surrogacy, especially compensated surrogacy. The surrogacy debate begins with the issues of sex, gender, reproduction, children—already individually and intersectionally heavily laden with cultural contest—and adds issues of money and commerce. Compounding matters further, add the twenty-first century issues of fast-paced technological innovation and increasingly global markets that are affecting every area of life. There is no easy place to stand amid such a turbulent swirl.

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Kellye Y. Testy 89 Wash. L. Rev. 1069

Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States

Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States

December 17, 2014 | 89 Wash. L. Rev. 1077

Abstract: Compensated surrogacy—an arrangement in which a woman carries and gives birth to a child for someone else in exchange for money—intimately affects women. Yet, feminist law reformers have not led efforts to regulate this practice in the United States. Their absence is notable given the significant influence of feminist lawmaking in a host of other areas where women’s interests are at stake. This lack of feminist law reform leadership can be understood, however, in light of the complex issues that surrogacy raises—complexity that has long divided feminists.

In response to efforts to pass surrogacy legislation in Washington State in 2010, Legal Voice, a women’s rights organization founded in 1978, worked to develop a progressive, feminist approach to compensated surrogacy. The organization adopted a framework based primarily on two schools of feminist legal thought—an anti-essentialist analysis and a pragmatic approach—under the overarching goal of promoting reproductive justice. This Article proposes the application of these principles to the development of any surrogacy legislation. However, my primary purpose is to urge feminist law advocates to take leadership of surrogacy law reform. Whatever the feminist objections to the practice, people increasingly engage in surrogacy arrangements to create families and to help others to do so. But it is the women who hold the least power and face the highest risk of economic exploitation who bear the most significant risks in these arrangements. Thus, it is imperative that progressive feminists meet the challenge of addressing the complexity of compensated surrogacy, and develop a shared agenda for ensuring reproductive justice in the context of assisted reproductive technologies.

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Sara L. Ainsworth 89 Wash. L. Rev. 1077

Windsor, Surrogacy, and Race

Windsor, Surrogacy, and Race

December 17, 2014 | 89 Wash. L. Rev. 1125

Abstract: Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. In the decision, the Court envisions same-sex couples and the families that they head as valuable threads in the fabric of American society. Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition. This Article conducts that reconsideration, ultimately concluding that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. However, instead of calling for a ban on surrogacy for these reasons, the Article argues that there are more desirable avenues for destabilizing racial hierarchies and undoing the marginalization of unprivileged persons and families.

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Khiara M. Bridges 89 Wash. L. Rev. 1125

Compensated Surrogacy

Compensated Surrogacy

December 17, 2014 | 89 Wash. L. Rev. 1155

The question that was put to us is whether the widespread legalization of gay marriage, supported by the Supreme Court’s decision in United States v. Windsor, means that compensated surrogacy should be more broadly legalized. This essay takes the position that Windsor has little relevance to surrogacy, which will continue to be governed by state rather than federal law. States do, and will, follow a wide spectrum of policies on surrogacy, ranging from banning it and making it illegal to promoting it by enforcing surrogacy contracts as ordinary commercial transactions. The legalization of gay marriage need not affect states’ surrogacy laws.

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Martha A. Field 89 Wash. L. Rev. 1155

The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation

The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation

December 17, 2014 | 89 Wash. L. Rev. 1185

Abstract: Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades the federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, Compensated Surrogacy in the Age of Windsor, this Article explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.

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Anthony C. Infanti 89 Wash. L. Rev. 1185

Straddling the Columbia: A Constitutional Law Professor's Musings on Circumventing Washington State's Criminal Prohibition on Compensated Surrogacy

Straddling the Columbia: A Constitutional Law Professor's Musings on Circumventing Washington State's Criminal Prohibition on Compensated Surrogacy

December 17, 2014 | 89 Wash. L. Rev. 1235

In this Article, I recount—through both the prisms of an intended parent and a constitutional law scholar—my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State’s criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization. Part II of this Article considers the extent to which laws that criminalize or otherwise restrict one’s ability to enter into surrogacy arrangements run afoul of either the substantive protections of the Due Process Clause or the guarantees of the Equal Protection Clause. Part III of this Article considers the extent to which laws that stand in the way of intended parents establishing legal parentage of children born via surrogacy violate those same constitutional guarantees.

I conclude that laws that restrict one’s ability to enter into surrogacy arrangements violate both the long-recognized fundamental right to procreate as well as a more specifically articulated fundamental right to procreate with the assistance of third parties, while laws that stand in the way of intended parents establishing legal parentage of children born via surrogacy violate the fundamental right to care for and have custody of one’s children. In addition, I demonstrate that some of these restrictive statutory schemes can also be challenged on the ground that they violate the equal protection rights not only of those seeking to have children via surrogacy, but also the children born to them.

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Peter Nicolas 89 Wash. L. Rev. 1235

The Future of Compensated Surrogacy in Washington State: Anytime Soon?

The Future of Compensated Surrogacy in Washington State: Anytime Soon?

December 17, 2014 | 89 Wash. L. Rev. 1311

Americans in the mid-1980s were shocked by the facts of the Baby M case. That case, a compensated surrogacy arrangement that publicly went very wrong, raised complicated issues that the country had not considered: whether a woman could contract to carry a pregnancy for another person without becoming the legal mother; whether she could be separated from the child at birth, even though it was her genetic offspring; and whether the contract could take precedence over a mother’s regret over giving up the child. As a result of that case, a number of states, including Washington, prohibited compensated surrogacy arrangements.

Twenty-five years later, the fundamental nature of families has changed. In the process, the public has gradually accepted surrogacy as an option for families with infertility issues. Gestational surrogacy, where the surrogate is not genetically related to the embryo, has become more the norm. Without the genetic link to the embryo, the concept of “mother giving up child” does not ring the same, either legally or morally. Also, while sperm-banking has been available for decades, increasingly infertile couples rely on egg banks to assist them with their infertility issues, without entangling them in personal relationships with the donors. In this climate, and specifically as some state legislators experience surrogacy first-hand, state legislatures have begun reassessing their surrogacy prohibitions. The Washington Legislature undertook such a reassessment in 2011. This paper will discuss the facts of the Baby M case, the enactment of the 1989 compensated surrogacy prohibitions in Washington and the 2011 attempt to reverse them, and some thoughts for future legislation in this arena.

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Terry J. Price 89 Wash. L. Rev. 1311

For a Feminist Considering Surrogacy, Is Compensation Really the Key Question?

For a Feminist Considering Surrogacy, Is Compensation Really the Key Question?

December 17, 2014 | 89 Wash. L. Rev. 1345

Abstract: Feminists have long been engaged in the debates over surrogacy. During the past thirty years, thousands of women throughout the world have served as surrogate mothers. The experience of these women has been studied by academics in law and in the social sciences. It is apparent that if properly conducted, surrogacy can be a rewarding experience for women and hence should not be objectionable to feminists. Improperly conducted, however, surrogacy can be a form of exploitation. Compensation is not the distinguishing factor. In this essay I offer two changes to law that would improve the surrogate’s experience of surrogacy. First, the law should treat traditional and gestational surrogacy similarly. Second, a surrogate should be considered a legal parent of the child she bears. These changes would address the most pressing feminist objections to surrogacy and open the way for compensation.

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Julie Shapiro 89 Wash. L. Rev. 1345

Understanding Discrimination in the Scored Society

Understanding Discrimination in the Scored Society

December 17, 2014 | 89 Wash. L. Rev. 1375

This Article draws out several antidiscrimination paradigms which on their face pertain to the dynamics discussed in The Scored Society, and big data in general. Such analysis allows for recognizing which discrimination-based concerns are especially acute in the scored society, as well as setting forth initial proposed responses for mitigating them, when possible. The Article proceeds as follows: after a brief Introduction mapping the confines of the debate and summarizing Professor Citron and Pasquale’s contributions, the Article moves to Part I, where it generally addresses the notion of "discrimination" and its relevance to the issue at hand. Part II—the heart of this Article—identifies the discrimination-based concerns which relate to the mistreatment of "protected groups." There, the Article demonstrates the possible concerns while relying on race as a key example of a "protected group" and distinguishing between explicit discrimination, implicit discrimination, and instances of disparate impact. In Part III, the Article takes a brief look at selected discrimination concerns which go beyond protected groups. It generally finds these latter problems relatively easy to resolve. Finally, in the Conclusion, the Article argues that even though the scoring process is seemingly ridden with discrimination-based concerns, it certainly should not be categorically abandoned, as it might even promote antidiscrimination objectives when carried out properly.

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Tal Z. Zarsky 89 Wash. L. Rev. 1375

Promoting Innovation While Preventing Discrimination: Policy Goals for the Scored Society

Promoting Innovation While Preventing Discrimination: Policy Goals for the Scored Society

December 17, 2014 | 89 Wash. L. Rev. 1413

Professor Zarsky has led us to realize that there are in fact several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our article. In this response, we clarify our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

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Frank Pasquale & Danielle Keats Citron 89 Wash. L. Rev. 1413

Racial Impact Statements: Considering the Consequences of Racial Disproportionality in the Criminal Justice System

Racial Impact Statements: Considering the Consequences of Racial Disproportionality in the Criminal Justice System

December 17, 2014 | 89 Wash. L. Rev. 1425

Abstract: The American criminal justice system is currently suffering from a dramatic increase in mass incarceration and staggering rates of racial disproportionalities and disparities. Many facially neutral laws, policies, and practices within the criminal justice system have disproportionate impacts on minorities. Racial impact statements provide one potential method of addressing such disproportionalities. These proactive tools measure the projected impacts that new criminal justice laws and policies may have upon minorities, and provide this information to legislators before they decide whether to enact the law. Four states currently conduct racial impact statements, and other states are considering adopting their own versions. The triggering circumstances and methods of collecting racial impact data differ among states, resulting in a great variety of racial impact statements that are actually completed. This Comment reviews current racial impact statements and suggests three improvements for states that are considering adopting them. First, racial impact statements should attach automatically to legislation without the prompting of legislators’ votes. Second, states should consider developing more thorough data collection standards. Finally, more effective racial impact legislation should ensure that lawmakers address racial disproportionalities by requiring legislators to follow additional procedures when disproportionate racial impacts are projected.

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Jessica Erickson 89 Wash. L. Rev. 1425

Amending Complaints Post-Twiqbal: Why Litigants Should Still Get a Second Bite at the Pleading Apple

Amending Complaints Post-Twiqbal: Why Litigants Should Still Get a Second Bite at the Pleading Apple

December 17, 2014 | 89 Wash. L. Rev. 1467

Abstract: The Supreme Court’s landmark decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had a serious effect on the way that Rule 12(b)(6) Motions to Dismiss are handled in federal courts across the country. In the five years since Iqbal was handed down, scholars and practitioners alike have discussed the merits and effects of this decision at length. However, there has been very little—if any—discussion on the relationship between amended complaints and original complaints when it comes to this newly-minted plausibility standard. This Comment aims to examine and critique a post-Twiqbal practice regarding amended complaints that is beginning to emerge in the Ninth Circuit. A number of district courts in the Ninth Circuit have held that courts may compare amended complaints to their predecessors as a part of the Twiqbal plausibility analysis. This Comment argues that this practice is not in line with the intent of Twiqbal nor with available precedent on amended complaints. As such, courts should refrain from adopting this practice going forward, and the Court of Appeals for the Ninth Circuit should strike down this emerging practice if presented with a chance to do so.

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Dane Westermeyer 89 Wash. L. Rev. 1467
Volume 88
Published 2013
Number 1
Number 2
Number 3
Number 4
Title Author Citation
The Landmark that Wasn’t: A First Amendment Play in Five Acts

The Landmark that Wasn’t: A First Amendment Play in Five Acts

March 01, 2013 | 88 Wash. L. Rev. 1

What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court’s decision in Dun & Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent the holdings in Sullivan and Gertz v. Robert Welch, Inc. (1974) came to be reconsidered; (2) how the nature of the expression at issue in Greenmoss Builders factored into the examination of this defamation case and changed the way the First Amendment limits the common law of defamation; (3) how the members of the Burger Court considered the question of the media versus non-media status of a defendant in a defamation case; (4) how the Justices grappled with the question of the legitimacy under the First Amendment of presumed and punitive damages awards in defamation actions; (5) how the issue of the difference between private speech and public speech came to take on constitutional significance; (6) whether the Court should reconsider the balance it struck in Sullivan between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation; and (7) how all of this ultimately influenced and determined the outcome in Greenmoss Builders. In the swirl of this discussion and examination of the historical record, the reader gets a rare glimpse of the inner workings of the Court and its clerks along with a better appreciation of how consensus is built and lost, replete with occasional barbs. Moreover, this Article reveals just how laborious the shaping of First Amendment doctrine can be, given the issues (some never fully discussed in published opinions) raised by the Justices in their consideration of the Greenmoss Builders case. In these respects and others, this Article informs the reader of some of the central (albeit internal) moments in the history of defamation law following Sullivan and thereby sheds new light on how the law in this area might be shaped in the future.

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Lee Levine & Stephen Wermiel 88 Wash. L. Rev. 1
Dun & Bradstreet Revisited - A Comment on Levine and Wermiel

Dun & Bradstreet Revisited - A Comment on Levine and Wermiel

March 01, 2013 | 88 Wash. L. Rev. 103

(Excerpt) Lee Levine and Stephen Wermiel’s account of the internal history of the Supreme Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court’s deliberations. As someone who clerked for Justice Byron White in the October 1984 and 1985 Terms and was thus present during the second of the two years in which the Court considered Dun & Bradstreet, I will not comment on the accuracy of the particular details the Article reports or add any inside information about the Court’s deliberations. That would be both improper and impossible. Improper because a law clerk has a duty of confidentiality both toward his or her Justice and toward the Court as an institution; and impossible because, not having worked on the case myself, I have only fuzzy recollections concerning the many twists and turns the Article describes, and certainly none that match the wealth of detail the authors have gleaned from the documentary record. I will, however, try to situate the case within the broader context of the issues before the Court during the 1984 Term, which may give the reader a more accurate perspective from which to judge whether the story of Dun & Bradstreet is that of a doctrinal perfect storm or a tempest in a teapot—or, perhaps more likely, something in between. I will also comment on the usefulness of the sources relied on by the authors in creating an accurate picture of the Court’s workings. Finally, I will offer some brief observations on the issues in Dun & Bradstreet, the problems it posed for the Court, and the decision’s place in the evolution of the Court’s First Amendment libel jurisprudence.

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Scott L. Nelson 88 Wash. L. Rev. 103
A Tale of Two Greenmoss Builders

A Tale of Two Greenmoss Builders

March 01, 2013 | 88 Wash. L. Rev. 125

(Excerpt) If ever a pending Supreme Court case deserved the merciful disposition of “improvidently granted,” it would seem to be Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Many factors seem to warrant such interment for an elusive and wholly unsatisfying controversy. Arguably, by any objective standard, this case should never have gone beyond a routine and little noted denial of certioriari. Against this unhappy background, let me offer several countervailing and compelling factors that seem to warrant an alternative disposition.

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Robert M. O'Neil 88 Wash. L. Rev. 125
Dun & Bradstreet v. Greenmoss Builders as an Example of Justice Powell’s Approach to Constitutional Jurisprudence

Dun & Bradstreet v. Greenmoss Builders as an Example of Justice Powell’s Approach to Constitutional Jurisprudence

March 01, 2013 | 88 Wash. L. Rev. 143

(Excerpt) It is striking to read the detailed account of the Supreme Court’s wrestling with Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. over a two-year period that came just a few years after I had the honor of clerking for Justice Lewis F. Powell, Jr. The unpacking of this story by Lee Levine and Steven Wermiel is invaluable because it so well illustrates the ways in which three important Justices did their jobs in the 1970s and 1980s. We see Justice Brennan working strategically to reinforce and extend his earlier opinion in New York Times Co. v. Sullivan, seeking ways to cobble together five votes from a Court that is far different from the Warren Court he once knew. We see Justice White, mercurial and idiosyncratic—first voting with Justice Brennan, then flirting with joining Justice Powell in narrowing the scope of Gertz v. Robert Welch, Inc., and ultimately filing a concurrence in the judgment calling for both Sullivan and Gertz to be overruled. And we see Justice Powell, the classic moderate centrist, seeking to adjust the constitutional rules so as to give what he considered sufficient respect to competing values—here, the competing values of protecting freedom of speech and preserving the States’ ability to use defamation law to protect reputations. Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell’s approach to constitutional jurisprudence, particularly in First Amendment cases—an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

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Paul M. Smith 88 Wash. L. Rev. 143
The Miranda Warning

The Miranda Warning

March 01, 2013 | 88 Wash. L. Rev. 155

(Excerpt) Largely as a consequence of American television and movies, Miranda v. Arizona may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops. And it is said that in countries where no such right actually exists, suspects have still been known, when arrested, to demand their Miranda rights.

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Frederick Schauer 88 Wash. L. Rev. 155
A Rejoinder to Professor Schauer’s Commentary

A Rejoinder to Professor Schauer’s Commentary

March 01, 2013 | 88 Wash. L. Rev. 171

(Excerpt) It is quite a treat to have Professor Frederick Schauer comment on my Miranda article. Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last fourand- a-half decades and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test. I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules. As Schauer observes, the use of such rules is “ubiquitous in constitutional law” and “there is no special category of prophylactic rules . . . . The phrase ‘prophylactic rule’ is accordingly best seen as a simple redundancy, sort of like ‘null and void.’” However, when Schauer maintains that (1) the right to remain silent “existed independent[ly] of Miranda,” and that (2) “the right to counsel during interrogation” also “preceded Miranda,” I have to part company with him on both counts. (I readily admit that whether there was a right to counsel during interrogation prior to Miranda is a much closer question than whether there was a right to remain silent.) Much turns on what one means by “rights.”

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Yale Kamisar 88 Wash. L. Rev. 171
Governing Financial Markets: Regulating Conflicts

Governing Financial Markets: Regulating Conflicts

March 01, 2013 | 88 Wash. L. Rev. 185

Payment, clearing, and settlement systems constitute a central component in the infrastructure of financial markets. These businesses provide channels for executing the largest and smallest commercial transactions in local, national, and international financial markets. Notwithstanding this significant role, there is a dearth of legal scholarship exploring central clearing counterparties (CCPs) and their contributions to the regulation of financial markets. To address this gap in the literature, this Article sketches the contours of the theory that frames regulation within financial institutions and across financial markets, examines the merits of implementing CCPs, and explores the role of CCPs as primary regulators within financial markets. Applying these theoretical constructs to a practical issue, this Article analyzes Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the statute's introduction of mandatory clearing requirements in the over-the-counter (OTC) derivatives market. This Article advances several arguments that explore the merits of Title VII’s clearing mandate. First, this Article posits that introducing clearing requirements and authorizing only a handful of CCPs to execute clearing obligations concentrates systemic risk concerns. Title VII’s clearing mandate endows CCPs with the authority to serve as gatekeepers. As a result, these institutions become critical, first-line-of-defense regulators, managing risk within the OTC derivatives markets. Second, weak internal governance policies at CCPs raise noteworthy systemic risk concerns. CCP boards of directors face persistent and pernicious conflicts of interest that impede objective risk oversight, and thus may fail to adopt effective risk management oversight policies. Well-tailored corporate governance reforms are necessary to address these conflicts and to prevent CCP owners’ self-interested commercial incentives or other institutional constraints from triggering systemic risk concerns. Finally, this Article deconstructs the theory of self-regulation that characterizes financial markets regulation. After reviewing the benefits and weaknesses of the self-regulatory approach, this Article explores the emerging New Governance paradigm. Drawing from the New Governance literature and internal corporate governance reforms employed by venture capital and private equity firms, regulators, and federal prosecutors, this Article proposes that regulators appoint an independent, third party board observer or monitor to CCPs’ board of directors. The appointed board observer or monitor will endeavor to ensure the safety and soundness of CCPs’ risk-management decisions and that their risk-taking decisions are consistent with the public’s interest in mitigating systemic risk concerns.

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Kristin N. Johnson 88 Wash. L. Rev. 185
Controlling the Prosecution of Bribery: Applying Corporate Law Principles to Define a “Foreign Official” in the Foreign Corrupt Practices Act

Controlling the Prosecution of Bribery: Applying Corporate Law Principles to Define a “Foreign Official” in the Foreign Corrupt Practices Act

March 01, 2013 | 88 Wash. L. Rev. 245

This Comment focuses on the debate surrounding the definition of an “instrumentality” within the Foreign Corrupt Practice Act’s (FCPA) “foreign official” provision. The FCPA prohibits bribery of “foreign officials” but provides little guidance as to the types of entities included within the meaning of an “instrumentality.” The Department of Justice construes this term broadly and therefore can aggressively prosecute alleged corruption. This Comment argues that courts should provide guidance on the definition of a “foreign official” within the meaning of the FCPA by applying principles of control drawn from corporate law. Such guidance would accomplish three important tasks. First, it would help corporations comply with the FCPA. Second, it would align with the approach used by foreign jurisdictions designated in treaty obligations. Finally, it could help achieve Congress’s original objectives in enacting the legislation: namely, to prevent corruption of foreign public officials as well as the negative consequences for foreign policy.

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Kayla Feld 88 Wash. L. Rev. 245
The Lesson of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players’ Union Disclaimers of Representation

The Lesson of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players’ Union Disclaimers of Representation

March 01, 2013 | 88 Wash. L. Rev. 281

The NFL and NBA lockouts of 2011 challenged the limits of the balance courts have struck between collective bargaining protections and antitrust liability. In each lockout, the respective players’ union argued that the bargaining relationship with team owners ended once the union disclaimed interest in continuing as its players’ bargaining representative. The players further argued that with the bargaining relationship terminated, the nonstatutory labor exemption no longer shielded owners from antitrust liability for their cooperative agreements and activity. Ultimately, both lockouts settled without courts deciding whether a disclaimer of representation marks what the Supreme Court has described as an “extreme outer boundary” that is “sufficiently distant in time and in circumstances” from the bargaining process such that the nonstatutory labor exemption might no longer protect employers from antitrust liability. This Comment argues that courts should be wary of recognizing disclaimers as terminating the exemption in the wake of the 2011 lockouts. Instead, courts should extend the exemption for a reasonable period following disclaimer. By doing so, courts would reduce the possibility of introducing instability and uncertainty in the bargaining process, which the Court has recognized in the past as a significant concern. Such an extension also would help separate deserving antitrust claims from mere bargaining tactics while allowing the economic pressures facing both sides to shape their ultimate agreement.

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Ross Siler 88 Wash. L. Rev. 281
Title Author Citation
Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts

Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts

June 01, 2013 | 88 Wash. L. Rev. 321

(Excerpt) Scholarship is the work-product of scholars. The word derives from the Latin schola, as in school. Hence, scholarship is related to education, which in turn is related to the advancement of human knowledge. By that measure, the best scholarship may increase our knowledge, both practical and theoretical. But when undisclosed bias affects that which is offered up as knowledge, it may unduly slant our understanding of life, law, and other things that matter. While bias-free knowledge may be a utopian ideal, it is, nonetheless, a principle worthy of our respect.

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Ronald K.L. Collins & Lisa G. Lerman 88 Wash. L. Rev. 321
Static Versus Dynamic Disclosures, and How Not to Judge Their Success or Failure

Static Versus Dynamic Disclosures, and How Not to Judge Their Success or Failure

March 01, 2013 | 88 Wash. L. Rev. 333

Disclosure laws can serve many different purposes. This Article is the first to distinguish two of those purposes, which I call static and dynamic disclosures. In brief, static disclosures aim to improve consumers’ choice from among the set of products that are already available on the market. By contrast, dynamic disclosures aim to improve the range of products from which consumers must choose, by sharpening sellers’ incentives to improve the quality of their products. The Article also discusses the various ways in which the effects of static and dynamic disclosures might be measured and evaluated. In doing so, it examines and mildly criticizes the position recently advanced by Professors Omri Ben-Shahar and Carl Schneider, who argue (approximately) that disclosure almost never works, and that it should not even be considered as a policy option. While I agree with much else that Professors Ben-Shahar and Schneider say, their claim that disclosures almost never work is far too broad.

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Richard Craswell 88 Wash. L. Rev. 333
Obscurity by Design

Obscurity by Design

March 01, 2013 | 88 Wash.L.Rev. 385

Design-based solutions to confront technological privacy threats are becoming popular with regulators. However, these promising solutions have left the full potential of design untapped. With respect to online communication technologies, design-based solutions for privacy remain incomplete because they have yet to successfully address the trickiest aspect of the Internet—social interaction. This Article posits that privacy-protection strategies such as “Privacy by Design” face unique challenges with regard to social software and social technology due to their interactional nature. This Article proposes that design-based solutions for social technologies benefit from increased attention to user interaction, with a focus on the principles of “obscurity” rather than the expansive and vague concept of “privacy.” The main thesis of this Article is that obscurity is the optimal protection for most online social interactions and, as such, is a natural locus for design-based privacy solutions for social technologies. To that end, this Article develops a model of “obscurity by design” as a means to address the privacy problems inherent in social technologies and the Internet.

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Woodrow Hartzog & Frederic Stuzman 88 Wash.L.Rev. 385
Mandated Disclosure in Literary Hybrid Speech

Mandated Disclosure in Literary Hybrid Speech

March 01, 2013 | 88 Wash.L.Rev. 419

This Article, written for the Washington Law Review’s 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure. The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in “hybrid speech.” The second assumption is that the hidden promotional aspects of hybrid speech create a form of legally cognizable deception. The final assumption holds that disclosure is normatively desirable, to inform audiences of hybrid speech of its hybridity, and in so doing, to remedy the perceived harms that flow from hidden sponsorship. The Article challenges these three assumptions by using as an example the little-remarked phenomenon of sponsored literature, literary texts in and around which advertising is inserted, as well as literary texts that owe their existence to commissioning advertisers. The standard disclosure literature does not consider contexts such as these, in which the decision-making process does not involve crucial questions of life or death, shelter or homelessness, solvency or bankruptcy. Thus the entertainment context of hybrid speech demands different regulatory treatment. The Article concludes that mandatory disclosure is the wrong regulatory response to hidden sponsorship because the harms that it ostensibly creates are rooted in influence, rather than deception.

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Zahr K. Said 88 Wash.L.Rev. 419
Disclosure As Distribution

Disclosure As Distribution

March 01, 2013 | 88 Wash. L. Rev. 475

This brief response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors’ implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any other regulatory regime that seeks to channel and improve decisionmaking) implicitly rests on judgments regarding individuals’ responsibility for their own capacities. I argue that in evaluating such regulatory regimes, focusing on efficiency through cost-benefit analysis distracts from inescapable and logically prior distributive questions regarding desert and responsibility.

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Jeremy N. Sheff 88 Wash. L. Rev. 475
In Washington State, Open Courts Jurisprudence Consists Mainly of Open Questions

In Washington State, Open Courts Jurisprudence Consists Mainly of Open Questions

March 01, 2013 | 88 Wash. L. Rev. 491

Issues of public trial and the open administration of justice have been an intense focus of the Washington State Supreme Court in recent years. In its December issue, the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence, and made recommendations for clarifying the constitutional issues involved when a courtroom “closure” occurs. Just before that issue went to press, the Washington State Supreme Court decided four important public trial cases: State v. Sublett, State v. Wise, State v. Paumier, and In re Morris. The court issued fourteen separate opinions, clearly demonstrating deep divisions among the justices. This follow-up article examines the principal arguments of the new opinions, identifies what areas appear settled, and discusses the important questions that remain unresolved.

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Anne L. Ellington & Jeanine Blackett Lutzenhiser 88 Wash. L. Rev. 491
When Old Becomes New: Reconciling the Commands of the Wilderness Act and the National Historic Preservation Act

When Old Becomes New: Reconciling the Commands of the Wilderness Act and the National Historic Preservation Act

March 01, 2013 | 88 Wash. L. Rev. 525

The Wilderness Act created a national framework for the protection of wilderness areas. Although the statute defines wilderness as an area “untrammeled by man, where man himself is a visitor who does not remain,” it leaves room for the “public purposes of recreational, scenic, scientific, educational, conservation, and historical use.” As such, the Wilderness Act clarifies that its purposes are “within and supplemental” to other land-use statutes, including statutes like the National Historic Preservation Act (NHPA), which created a national scheme for preserving historic places and structures. When considering the Wilderness Act relative to the NHPA, agencies and courts have interpreted agency obligations under each act differently. Though the historical context, text, and purpose of each statute indicate that historic preservation efforts should be permitted within wilderness areas, courts have read the two acts as mutually exclusive and held that the Wilderness Act takes precedence over the NHPA. The two statutes can be harmonized. To clarify the law in this area, however, Congress should amend the Wilderness Act to provide an express exception for preservation efforts in compliance with the NHPA.

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Nikki C. Carsley 88 Wash. L. Rev. 525
Washington’s Electronic Signature Act: An Anachronism in the New Millennium

Washington’s Electronic Signature Act: An Anachronism in the New Millennium

March 01, 2013 | 88 Wash. L. Rev. 559

Today, electronic contracting is at the forefront of how consumers, governments, and businesses conduct their affairs. Over the last several decades, electronic contracting has taken on new forms that have raised doubts about contract formation and enforceability. In order to facilitate commerce, the federal government and forty-nine states have responded by passing legislation that gives broad legal recognition to electronic signatures. Washington State is currently the only state that has not updated its electronic signature statute to comport with modern technology and ways of doing business. As a result, Washington’s Electronic Authentication Act is likely preempted by federal law, and it presents an uncertain environment for electronic contracting. This Comment argues that Washington should join the overwhelming majority of states in adopting the Uniform Electronic Transactions Act to optimize its statutory framework for facilitating electronic contracting.

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Stephanie Curry 88 Wash. L. Rev. 559
Making Room: Why Inclusionary Zoning Is Permissible under Washington’s Tax Preemption Statute and Takings Framework

Making Room: Why Inclusionary Zoning Is Permissible under Washington’s Tax Preemption Statute and Takings Framework

March 01, 2013 | 88 Wash. L. Rev. 591

Inclusionary zoning ordinances, which typically require developers to set aside a percentage of new residential units for low and moderate income households, are a popular mechanism for ensuring the development of affordable housing in many communities. Washington State jurisdictions have been slow to introduce inclusionary zoning—particularly mandatory set-asides—perhaps because of the legal battles they would face. The Washington State Supreme Court previously relied on RCW 82.02.020 (the “tax preemption statute”) to invalidate a low-income housing ordinance in San Telmo Associates v. City of Seattle1 and in R/L Associates, Inc. v. City of Seattle.2 Washington courts have also relied on a unique and complex takings analysis to invalidate low-income housing and manufactured housing laws on grounds that they constituted a “taking” of private property or a violation of substantive due process under the U.S. Constitution, or in some cases, under the Washington State Constitution. This Comment argues that inclusionary zoning is authorized by RCW 36.70A.540,3 the Affordable Housing Incentive Programs Act, which expressly amended the tax preemption statute and permits both voluntary and mandatory inclusionary zoning programs. This Comment explores the differences between the federal and Washington takings analyses and argues that the Washington State Supreme Court should abandon its unique tests in favor of the federal approach as articulated in Lingle v. Chevron U.S.A., Inc.4 Finally, this Comment explains why mandatory set-asides are constitutional under both federal and Washington takings law.

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Josephine L. Ennis 88 Wash. L. Rev. 591
Pregnant and Prejudiced: The Constitutionality of Sex- and Race-Selective Abortion Restrictions

Pregnant and Prejudiced: The Constitutionality of Sex- and Race-Selective Abortion Restrictions

March 01, 2013 | 88 Wash.L.Rev. 645

Six states currently restrict a woman’s access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus’s sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court’s abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based abortion restrictions are unconstitutional on several grounds. First, the laws violate the woman’s constitutional liberty rights, which protect the personal beliefs and motivations behind her decision to terminate a pregnancy. Second, the laws conflict with the Court’s holding that governments cannot prohibit abortions before the fetus has reached viability. Third, while the Court’s decision in Gonzales v. Carhart may support abortion restrictions motivated by moral concerns, the interests recognized in Gonzales are distinguishable from those furthered by motive-based restrictions. For these reasons, reviewing courts should strike down motive-based abortion restrictions as unconstitutional.

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Justin Gillette 88 Wash.L.Rev. 645
All Carrot and no Stick: Why Washington's Clean Water Act Assurances Violate State and Federal Water Quality Laws

All Carrot and no Stick: Why Washington's Clean Water Act Assurances Violate State and Federal Water Quality Laws

March 01, 2013 | 88 Wash.L.Rev. 683

Current Washington State rules governing timber activities—including logging, road construction, and timber processing—were achieved through negotiated compromise. In response to growing concern over the decline of several salmonid species, stakeholders from government agencies, environmental groups, and the timber industry negotiated a plan for regulating timber activities to better meet the needs of aquatic species, while maintaining a robust and sustainable timber industry. The rivers and streams flowing through Washington’s forests provide habitat for numerous aquatic species, including several species of anadromous salmonids. Timber activities, however, pose a threat to healthy habitat. In the 1990s, degraded forest habitat in Washington necessitated a change in policy. Without such a change, stakeholders would face a difficult dilemma: if those conducting timber activities continued under the status quo, they would risk costly litigation brought under the federal Endangered Species Act (ESA) and Clean Water Act (CWA), dramatic regulatory modifications in the future that would make timber operations economically impracticable, or both. Stakeholders opted for a middle ground, devising and implementing a two-part framework for managing timber activities. First, they strengthened rules in order to provide better species protection. Second, they obtained assurances from the federal government that the new rules were strong enough that they provided those conducting timber activities in Washington (1) with immunity from lawsuits under the ESA and the CWA and (2) with regulatory certainty—that is, that no additional, more protective restrictions would attach to the new rules. While this regulatory framework is permissible under the ESA, an assurance of compliance with state and federal water quality laws does not square with the clear mandates of the CWA.

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Oliver Stiefel 88 Wash.L.Rev. 683
The Perfect Pairing: Protecting U.S. Geographical Indications with a Sino-American Wine Registry

The Perfect Pairing: Protecting U.S. Geographical Indications with a Sino-American Wine Registry

March 01, 2013 | 88 Wash .L. Rev. 723

Chinese counterfeiters have infiltrated the wine world, falsely labeling products and using fraudulent geographical indications (GIs). GIs, which function as a type of brand, are internationally protected designations of a product’s origin and characteristics. Recently, United States GIs, such as Napa or Walla Walla, have appeared on bottles of wine composed of Chinese grapes. By misappropriating U.S. brands, Chinese counterfeiters deceive and confuse consumers, disadvantage legitimate businesses, and causes health concerns. Unlike other brands, GIs protect regions, rather than individual producers. This creates a particular void: no single winery can register a GI and no single winery is harmed by fraudulent use, making counterfeits difficult to prevent, detect, and address. This Comment argues that Chinese law currently provides insufficient protection for U.S. wine GIs. As a solution, it proposes a Sino-American wine registry to effectively preserve GIs and protect the affected wines, producers, consumers, and countries.

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Laura Zanzig 88 Wash .L. Rev. 723
Title Author Citation
The Decline and (Possible) Renewal of Aspiration in the Clean Water Act

The Decline and (Possible) Renewal of Aspiration in the Clean Water Act

October 01, 2013 | 88 Wash. L. Rev. 759

In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward the CWA’s goals has stalled in the past two decades. This Article explores several possible reasons for that failure. Those reasons include subversion of the statutory goals at the administrative, judicial, and legislative levels due to an imbalance in power between groups interested in how the law is implemented; the degree to which the statutory goals are perceived as unrealistic by those charged with implementation; and the potential that Congress intended those ambitious goals to serve as prods for as much progress as possible, but did not actually expect them to be achieved. The Article then proposes that significantly more progress can be made if we take advantage of available means of defining the ecological integrity of aquatic ecosystems more clearly and more precisely, using as examples biological water quality criteria, functional assessment methods for wetlands restoration and protection, and the use of real-world desired future condition definitions for watersheds. Better definition of what the somewhat imprecise statutory goals mean in the real world might help to overcome the apparent belief that those goals are impossible or infeasible to attain.

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Robert W. Adler 88 Wash. L. Rev. 759
Washington Trust Laws’ Extreme Makeover: Blending with the Uniform Trust Code and Taking Reform Further with Innovations in Notice, Situs, and Representation

Washington Trust Laws’ Extreme Makeover: Blending with the Uniform Trust Code and Taking Reform Further with Innovations in Notice, Situs, and Representation

October 01, 2013 | 88 Wash. L. Rev. 813

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

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Karen E. Boxx & Katie S. Groblewski 88 Wash. L. Rev. 813
The Collateral Consequences of Ex Post Judicial Review

The Collateral Consequences of Ex Post Judicial Review

October 01, 2013 | 88 Wash. L. Rev. 903

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable under our current system of ex post judicial review. The answer is not to abandon judicial review, which plays an important role in our constitutional structure, but to reconceptualize it. This Article offers preliminary thoughts on what a system of ex ante judicial review might look like and argues that such a system would also address the policy distortions and significant legal uncertainties caused by our current system. Recognizing that such radical reforms are unlikely to be imminent, the Article also offers a number of more modest proposals that could help address these greater-than-necessary democratic disruptions in the short term. Finally, the Article argues that the Supreme Court has not taken even these modest steps because it is unwilling to acknowledge the policy disruptions its decisions often produce. This lack of honesty about its role may impair the Court’s ability to fill that role effectively.

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Brianne J. Gorod 88 Wash. L. Rev. 903
A Modified Theory of the Law of Federal Courts: The Case of Arising-Under Jurisdiction

A Modified Theory of the Law of Federal Courts: The Case of Arising-Under Jurisdiction

March 01, 2013 | 88 Wash. L. Rev. 961

This Article examines and evaluates the legal process method as a perspective from which to assess the law of federal courts. It then offers a modified approach to legal process that encompasses the full range of considerations that ought to inform modern judicial decision-making in this context. With that modified approach in mind, the article describes and critiques the Supreme Court’s statutory arising-under jurisprudence, both as originally developed and as currently practiced. The article shows that while the Court’s early “arising-under” jurisprudence was founded on durable principles and on the reasoned application of those principles, more recent decisions by the Court have strayed from that approach in service of a more mechanical jurisprudence. This approach seems to be premised more on case-management concerns than on the congressionally endorsed value of providing a federal forum for the interpretation and application of federal law. The article ends by examining the Court’s decision in Gunn v. Minton. As the article explains, Gunn offered the Court an opportunity to redirect the arising-under analysis back toward a perspective that would more closely reflect the legitimate and enduring principles of federal question jurisdiction. The Court, however, missed that opportunity and instead endorsed a mechanical, four-part test as a substitute for reasoned analysis.

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Simona Grossi 88 Wash. L. Rev. 961
The Confusion Trap: Rethinking Parody in Trademark Law

The Confusion Trap: Rethinking Parody in Trademark Law

October 01, 2013 | 88 Wash. L. Rev. 1021

This Article suggests using existing doctrinal levers in trademark law to accommodate parodies in a more balanced fashion. To reach this conclusion, this Article examines the parody doctrine in U.S. trademark law using two lenses. The first lens is trademark doctrine itself. Here I explore the various approaches courts use to resolve trademark disputes involving parody. The other lens is copyright law. Through this lens I examine how courts deciding trademark parody disputes employ the Supreme Court’s most recent decision on parody in copyright, Campbell v. Acuff-Rose Music, Inc. (1994). I also use this decision to examine the relationship between copyright and trademark parody claims. In other words, I ask the following question: how, if at all, are copyright and trademark claims related in parody cases? Each perspective reveals something different. The first perspective shows that most courts resolve infringement claims by evaluating parody within some form of the likelihood of confusion test. It also shows that most courts assess dilution claims by analyzing parody as a form of noncommercial speech. The second perspective shows that copyright and trademark claims are related in a positive direction: if a parody case involves both copyright and trademark claims, courts always find for the defendant (no infringement) on both claims. Filtering the analysis through these two lens, I seek to sketch two revised parody tests—one for infringement and one for dilution. Both tests attempt to differentiate parody analyses from the traditional likelihood of confusion and dilution tests. These new approaches—which strengthen speech protections but do not create absolute defenses—account for the legitimate interests of both trademark owners and parodists.

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David A. Simon 88 Wash. L. Rev. 1021
Informal Collateral Consequences

Informal Collateral Consequences

October 01, 2013 | 88 Wash. L. Rev. 1103

(Excerpt) After a thirty-year punitive binge, the nation is in the process of awakening to the vast array of negative effects flowing from its draconian crime control policies. The shift is perhaps most evident in the realm of corrections, which since the early 1980s has experienced unprecedented population growth. Driven by a number of factors, not the least of which is the enormous human and financial cost of mass incarceration, policy makers are now shrinking prison and jail populations4 and pursuing cheaper non-brick-and-mortar social control options.

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Wayne A. Logan 88 Wash. L. Rev. 1103
An Uneasy Union: Same-Sex Marriage and Religious Exemption in Washington State

An Uneasy Union: Same-Sex Marriage and Religious Exemption in Washington State

October 01, 2013 | 88 Wash. L. Rev. 1119

Same-sex marriage promises to be one of the defining issues of the twenty-first century. While supporters of same-sex marriage have welcomed a shift in the public’s perception and increasing acceptance of same-sex marriage in the last decade, controversy remains over how to balance the competing rights between marriage equality and religious freedom. While most same-sex marriage statutes around the country include religious exemptions for religious officials, it is unclear how, or whether, these protections should extend to wedding service providers who have a religious objection to same-sex marriage. Conflicts between same-sex couples seeking wedding services and wedding service providers who have religious objections to same-sex marriage are inevitable, and despite the relatively recent legalization of same-sex marriage in Washington, such conflicts have already occurred and will undoubtedly continue to take place in the future. In order to balance these competing rights, this Comment argues that the Washington Legislature should adopt a “refuse and refer” method that allows wedding service providers with a religious objection to same-sex marriage, in limited circumstances, to decline to provide wedding services to same-sex couples. Such a solution would safeguard the dignitary interests of same-sex couples while also protecting wedding service providers with deep-seated religious objections to same-sex marriage from litigation for refusing to provide wedding services to same-sex couples.

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Peter Dolan 88 Wash. L. Rev. 1119
Distinct Sources of Law and Distinct Doctrines: Federal Jurisdiction and Prudential Standing

Distinct Sources of Law and Distinct Doctrines: Federal Jurisdiction and Prudential Standing

October 01, 2013 | 88 Wash. L. Rev. 1153

Federal courts are courts of limited jurisdiction. Their jurisdiction is limited by subject-matter jurisdiction, personal jurisdiction, and, to an uncertain extent, standing. While it is well established that Article III standing is jurisdictional, the federal circuit courts are divided on whether judge-made prudential standing is jurisdictional, and the Supreme Court has not directly weighed in. The jurisdictional status of a doctrine has two important procedural consequences. First, litigants cannot forfeit a defense for lack of jurisdiction, meaning that such a defense can be raised for the first time on appeal. Second, federal courts have a sua sponte obligation to ensure that jurisdiction is proper. This Comment contends that prudential standing should not be considered jurisdictional but that federal courts should nevertheless have the discretion to raise the issue sua sponte. Prudential standing should not be considered jurisdictional because considering a court-created doctrine as jurisdictional violates the basic principle that only the Constitution and Congress hold the power to set federal courts’ jurisdiction, because a recent line of Supreme Court cases reinforces that court-created doctrines cannot be jurisdictional, and because prudential standing concerns litigants’ lack of rights on the merits, not federal courts’ adjudicatory authority. Federal courts, however, should have a discretionary sua sponte ability to raise the issue because prudential standing is an inherently flexible doctrine, and because federal courts raise in their discretion three other non-jurisdictional doctrines—the requirement that habeas corpus petitioners exhaust state remedies, Pullman abstention doctrine, and prudential ripeness doctrine—that, like prudential standing, originated as judge-made doctrines designed to protect interests beyond the litigants’ individual interests.

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William James Goodling 88 Wash. L. Rev. 1153
“Carving at the Joints”: Using Issue Classes to Reframe Consumer Class Actions

“Carving at the Joints”: Using Issue Classes to Reframe Consumer Class Actions

October 01, 2013 | 88 Wash. L. Rev. 1187

Achieving class certification in consumer litigation is a highly controversial and greatly debated area of civil procedure. Historically, certification under Federal Rule of Civil Procedure 23(b)(3) has been difficult to achieve due to the tension between the presence of individual issues and Rule 23(b)(3)’s predominance, superiority, and management considerations. The future of certification for Rule 23(b)(3) classes was further put in question with the United States Supreme Court’s landmark decision in Wal-Mart v. Dukes in 2011, which enhanced the level of scrutiny courts apply at the Rule 23(a) level of analysis. The Court’s 2013 decisions in Comcast Corp. v. Behrend and Amgen v. Connecticut Retirement Plan and Trust Fund further highlight the difficulties Rule 23(b)(3) classes face in achieving certification. Despite these developments, there are signs of continued vitality. In 2012, the Seventh Circuit allowed issue class certification in a large employment discrimination class, notwithstanding the presence of individual issues in McReynolds v. Merrill Lynch. McReynolds placed Rule 23(c)(4) (a historically seldom used subsection of Rule 23) in the spotlight as a means of allowing consumer claims to achieve certification in the post-Dukes era. This Comment explores the use of issue class certification under Rule 23(c)(4) and attempts to clarify when issue class certification is appropriate, with a particular focus on consumer class actions. By breaking complex issues into smaller, more manageable pieces, Rule 23(c)(4) allows litigants to frame common issues for class treatment and avoid an unnecessarily rigorous analysis of the merits of a claim at the certification stage.

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Jenna C. Smith 88 Wash. L. Rev. 1187
Title Author Citation

 The Perspective of Law on Contract

 The Perspective of Law on Contract

December 01, 2013 | 88 Wash. L. Rev. 1227

Contract is an essential component of the first-year curriculum in American law schools. But law students do not all take the same course in contracts. More so than in countries where students in different classes, even universities, are given common examinations, American law students draw something of a lottery in their assignment to particular law professors.

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Aditi Bagchi 88 Wash. L. Rev. 1227

Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World

Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World

December 01, 2013 | 88 Wash. L. Rev. 1251

Lawrence Cunningham’s Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases—in summary form or in longer excerpts—are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.

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Brian H. Bix 88 Wash. L. Rev. 1251

Reflections on Contracts in the Real World: History, Currency, Context, and Other Values

Reflections on Contracts in the Real World: History, Currency, Context, and Other Values

December 01, 2013 | 88 Wash. L. Rev. 1265

Open any contracts casebook and you will find the content dominated by hundreds of pages of canonical appellate opinions with an old and rising average age, supplemented by notes posing questions or providing perspective. Visit any classroom and you will hear professors leading students through the cases by recitation of often-obscure facts while developing contending legal arguments. Consult related students and you will hear some variation on one complaint: the study often lacks sufficient familiar context.

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Lawrence A. Cunningham 88 Wash. L. Rev. 1265

Contract Stories: Importance of the Contextual Approach to Law

Contract Stories: Importance of the Contextual Approach to Law

December 01, 2013 | 88 Wash. L. Rev. 1287

How law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using “stories” to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses.

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Larry A. DiMatteo 88 Wash. L. Rev. 1287

Contract as Pattern Language

Contract as Pattern Language

December 01, 2013 | 88 Wash. L. Rev. 1323

(Excerpt) Scholars and practitioners routinely talk about the “architecture” of individual contracts. Many observers have also noted the broad-brush similarity between the drafting of legal contracts and computer programming or coding. It is strange, then, that contract law scholarship has overlooked part of the landmark literature linking design in architecture and computer code.

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Erik F. Gerding 88 Wash. L. Rev. 1323

Cases and Controversies: Some Things to Do With Contracts Cases

Cases and Controversies: Some Things to Do With Contracts Cases

December 01, 2013 | 88 Wash. L. Rev. 1357

(Excerpt) Nearly a century and a half has passed since Christopher Columbus Langdell waded ashore at Harvard Law School, bringing to its benighted natives the civilizing influence of law study through the “case method.” Like his namesake, Langdell has long since sailed on to a more distant shore, but his legacy remained at the heart of legal instruction throughout the twentieth century, and persists into the present day.

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Charles L. Knapp 88 Wash. L. Rev. 1357

Unilateral Reordering in the Reel World

Unilateral Reordering in the Reel World

December 01, 2013 | 88 Wash. L. Rev. 1395

(Excerpt) Professor Larry Cunningham’s new book, Contracts in the Real World, demonstrates that there is much to learn about contract law from a few well-chosen stories. The goal of this Essay is to provide a similar service, relying on stories gleaned from movies and television—contracts in the “reel world,” so to speak—to illustrate and then undermine the traditional stories told about contract formation and modification. We can learn much from the scenes discussed herein about how consumers might be led to think contracts are formed, and perhaps misled about the certainty contracts provide.

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Jake Linford 88 Wash. L. Rev. 1395

Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students

Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students

December 01, 2013 | 88 Wash. L. Rev. 1427

(Excerpt) Consider this. Over three years of study, most law students take a single course on the subject of contracts in which they rarely (if ever) negotiate, draft, or even review a written agreement. Truly.

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Jennifer S. Taub 88 Wash. L. Rev. 1427

Copyrights in Faculty-Created Works: How Licensing Can Solve the Academic Work-For-Hire Dilemma

Copyrights in Faculty-Created Works: How Licensing Can Solve the Academic Work-For-Hire Dilemma

December 01, 2013 | 88 Wash. L. Rev. 1465

Many copyrightable works of university faculty members may be works-for- hire as defined under current U.S. copyright laws. Copyrights in works-for-hire are treated differently than copyrights in other works with respect to ownership, duration, termination rights, and requirements for transfer. Ambiguity over whether a specific faculty-created work is a work-for-hire creates legal uncertainties and potential future litigation about the initial ownership of the copyright, length of the copyright term, and termination rights which could impact all future transfers and licensing. Many universities have attempted to define ownership of faculty-created works through university policies. These policies are ineffective to alter the presumption of university ownership of works-for-hire, as they do not meet the requirements of U.S. copyright laws for a transfer of such ownership. This Comment argues that the best way to resolve these ambiguities is for the university to retain ownership of the copyrights in faculty-created works and provide the faculty creator with a license to the copyrighted work. Although perhaps counterintuitive, this Comment suggests that a licensing approach would actually result in greater certainty and better protection of the interests of both the faculty member and the university.

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Glenda A. Gertz 88 Wash. L. Rev. 1465
Volume 87
Published 2012
Number 1
Number 2
Number 3
Number 4
Title Author Citation
Preliminary Report on Race and Washington’s Criminal Justice System

Preliminary Report on Race and Washington’s Criminal Justice System

March 01, 2012 | 87 Wash. L. Rev. 1

Executive Summary In 1980, of all states, Washington had the highest rate of disproportionate minority representation in its prisons. Today, minority racial and ethnic groups remain disproportionately represented in Washington State’s court, prison, and jail populations, relative to their share of the state’s general population. The fact of racial and ethnic disproportionality in our criminal justice system is indisputable. Our research focused on trying to answer why these disproportionalities exist. We examined differential commission rates, facially neutral policies with disparate impacts, and bias as possible contributing causes. We found that the assertion attributed to then-Justice Sanders of the Supreme Court of Washington that “African-Americans are overrepresented in the prison population because they commit a disproportionate number of crimes,” is a gross oversimplification. Studies of particular Washington State criminal justice practices and institutions find that race and ethnicity influence criminal justice outcomes over and above commission rates. Moreover, global assertions about differential crime commission rates are difficult to substantiate. Most crime victims do not report crimes and most criminal offenders are never arrested. We never truly know exact commission rates. Even if arrest rates are used as a proxy for underlying commission rates, 2009 data show that 45% of Washington’s imprisonment disproportionality cannot be accounted for by disproportionality at arrest. We reviewed research that focused on particular areas of Washington’s criminal justice system and conclude that much of the disproportionality is explained by facially neutral policies that have racially disparate effects. For the areas, agencies, and time periods that were studied, the following disparities were found: • Youth of color in the juvenile justice system face harsher sentencing outcomes than similarly situated white youth, as well as disparate treatment by probation officers. • Defendants of color were significantly less likely than similarly situated white defendants to receive sentences that fell below the standard range. • Among felony drug offenders, black defendants were 62% more likely to be sentenced to prison than similarly situated white defendants. • With regard to legal financial obligations, similarly situated Latino defendants receive significantly greater legal financial obligations than their white counterparts. • Disparate treatment exists in the context of pretrial release decisions, which systematically disfavors minority defendants. • In Seattle, the black arrest rate for delivery of a drug other than marijuana is twenty-one times higher than the white arrest rate for that offense, one of the highest levels of disparity found across the country. Research suggests that this disparity does not primarily reflect different levels of involvement with illicit drugs. • Minority drivers are more likely to be searched by the Washington State Patrol than white motorists, although the rate at which searches result in seizures is highest for whites. In all of these areas, facially neutral policies result in disparate treatment of minorities over time. Implicit and explicit racial bias also contributes to this disproportionality by influencing decision-making within the criminal justice system. Race and racial stereotypes play a role in the judgments and decision-making of human actors within the criminal justice system. The influence of such bias is subtle and often undetectable in any given case, but its effects are significant, cumulative, and observable over time. When policymakers determine policy, when official actors exercise discretion, and when citizens proffer testimony or jury service, bias often plays a role. To summarize: • We find the assertion that the overrepresentation of black people in the Washington State prison system is due solely to differential crime commission rates inaccurate. • We find that facially race-neutral policies that have a disparate impact on people of color contribute significantly to disparities in the criminal justice system. • We find that racial and ethnic bias distorts decision-making at various stages in the criminal justice system, contributing to disparities. • We find that race and racial bias matter in ways that are not fair, that do not advance legitimate public safety objectives, that produce disparities in the criminal justice system, and that undermine public confidence in our legal system.

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Research Working Group of the Task Force on Race and the Criminal Justice System 87 Wash. L. Rev. 1
Graham on the Ground

Graham on the Ground

March 01, 2012 | 87 Wash. L. Rev. 51

In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham,including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? This Article endeavors to answer these and other pressing questions that confront judges and legislators today. Part I briefly describes the Graham opinion and surveys what scholars to date have identified as salient aspects of the decision. Part II seeks to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, it argues that: (1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a juvenile non-homicide crime; (2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; (3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and (4) long-term legislative and executive action are necessary in order to make Graham’s promise a reality. Finally, Part III situates Graham in the context of our nation’s ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.

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Cara H. Drinan 87 Wash. L. Rev. 51
Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance

Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance

March 01, 2012 | 87 Wash. L. Rev. 93

Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police—and the groups threatening to sue the police—are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This Article argues, however, that bargaining in the shadow of law and outside the courthouse may yield smarter and farther-reaching reforms and remedies based on data-driven surveillance than could be achieved through litigation and judicial decision. This Article argues that the remedies being fashioned “off the books”—that is, outside the doctrine in the case law reporters—offer important insights for the future of police governance and reform. The primary engine of police regulation—the exclusionary rule, which deters rights violations through the remedy of exclusion of improperly obtained evidence—is increasingly eroding and becoming the last resort rather than first instinct. The question becomes: what regulatory and remedial model should arise to fill the vacuum? The Article contends that a promising paradigm being refined by structural reform bargaining is regulation by data-driven surveillance—what this Article dubs “panopticism for police.” Panopticism is efficient internalized regulation by surveillance. The term comes from the metaphor of Jeremy Bentham’s Panopticon, in which prisoners in a state of perfect visibility positioned around an opaque watch tower self-regulate because at any time the guard may be watching. The goal of police panopticism is leveraging data-driven surveillance from multiple institutional vantages. The state of “conscious and permanent visibility” reduces monitoring and remedial costs and triggers self-regulation and institutional culture change.

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Mary D. Fan 87 Wash. L. Rev. 93
Recalibrating Constitutional Innocence Protection

Recalibrating Constitutional Innocence Protection

March 01, 2012 | 87 Wash. L. Rev. 139

This Article examines the constitutional nature of the right of a prisoner to receive post-conviction relief based solely on the claim that he is innocent. Part I explores innocence protection as an animating value of constitutional criminal procedure (Part I.A) and describes how developments in the way that crimes are investigated, proved, and re-examined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Part I.B). Part II explores how realigning the importance of innocence protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Part II.A provides an overview of how the U.S. Supreme Court has treated innocence claims to date. First, it considers gateway innocence claims—those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial. It also considers freestanding innocence claims—those in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial. Part II.B articulates a three-tiered framework—conviction relief, execution relief, gateway innocence—for adjudicating such claims.

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Robert J. Smith 87 Wash. L. Rev. 139
African Poverty

African Poverty

March 01, 2012 | 87 Wash. L. Rev. 205

African extreme poverty is probably a function (although not solely) of the balkanized post-colonial geopolitics of Africa. It is also probably a function (although not solely) of the income distribution generated by a typically perverse African political economy, through its effect on the allocation of resources to development. As between these two causes, the second is probably much the more important. This reinterpretation puts considerably more of the blame for African poverty on the Western great powers than does the “poverty trap” analytic that is a common contemporary way of thinking about the African economic situation.

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Duncan Kennedy 87 Wash. L. Rev. 205

Discernible Differences: A Survey of Civil Jury Demands

Discernible Differences: A Survey of Civil Jury Demands

March 01, 2012 | 87 Wash. L. Rev. 237

Under Washington State’s historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a “less number.” The Washington Legislature reversed this presumption in 1972. Washington’s civil jury now consists of six persons, unless one of the parties files a specific demand for twelve. It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey’s results and explores what they might mean, positing seven considerations that may explain litigants’ shared preference for traditional juries. I hope that the survey and accompanying exploration will remind us of the “great purposes that gave rise to the jury in the first place.”

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M Michelle Dunning 87 Wash. L. Rev. 237
High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct

High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct

March 01, 2012 | 87 Wash. L. Rev. 249

Workplace harassment has traditionally occurred within the “four walls” of the workplace. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee’s work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title VII hostile work environment claim. This Comment argues that to determine whether social media harassment evidence should be considered as part of the totality of the circumstances, courts should examine whether the employer derived a “substantial benefit” from the social media forum. If the employer derived a “substantial benefit” from the social media forum where the harassment occurred, then a court may logically consider the social media platform to be an extension of the employee’s work environment and thus part of the totality of the circumstances. This framework is consistent with the traditional workplace harassment analysis under Title VII, recognizes evolving technology in the modern workplace, and would provide employers with guidance on how to maintain an affirmative defense to harassment allegations in the social media age.

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Jeremy Gelms 87 Wash. L. Rev. 249
Driving Dangerously: Vehicle Flight and the Armed Career Criminal Act after Sykes v. United States

Driving Dangerously: Vehicle Flight and the Armed Career Criminal Act after Sykes v. United States

March 01, 2012 | 87 Wash. L. Rev. 281

The Armed Career Criminal Act (ACCA), a federal “three-strikes” recidivist statute, applies a mandatory enhancement to sentences of criminal defendants previously convicted of three qualifying predicate crimes. In Sykes v. United States the U.S. Supreme Court held that a conviction for fleeing police by car counted as a predicate under ACCA’s residual provision for crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.” ACCA’s residual provision has produced a confusing series of U.S. Supreme Court decisions, each applying a different method for determining its scope. Though Sykes borrows methods from each of these prior cases, this Comment argues that only the narrowest of its bases—a finding of risk based on the statutory features of the state crime—controlled its outcome. This basis suffices to explain Sykes’ outcome, and best comports with the Court’s own precedent mandating a categorical approach when interpreting ACCA. Under the categorical approach, a court may consider only the elements of a crime, not the particulars of its commission by an individual defendant, to determine whether it qualifies as a predicate offense under ACCA. Applying this interpretation of Sykes in future cases, only vehicle-flight convictions that either (1) require risk of physical injury to another as an element themselves or (2) share the same punishment as a comparable offense containing this element will qualify under ACCA’s residual provision. However, in Sykes’ wake most federal courts have read Sykes broadly, employing reasoning this Comment argues is inconsistent with faithful application of the categorical approach.

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Isham M. Reavis 87 Wash. L. Rev. 281
Independence for Washington State’s Privileges and Immunities Clause

Independence for Washington State’s Privileges and Immunities Clause

March 01, 2012 | 87 Wash. L. Rev. 331

Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied the U.S. Supreme Court’s Equal Protection analysis to article I, section 12. In the mid-1980s, the Washington State Supreme Court began to question this practice. In 2006, the Court divided on when and how to independently analyze article I, section 12. Justice James Johnson would have the Court independently analyze article I, section 12 in every case; Chief Justice Barbara Madsen would have the Court independently analyze article I, section 12 only where the law grants a privilege to a minority class; and Justice Mary Fairhurst would have the Court independently analyze article I, section 12 only where the state constitution provides greater protection to the right at issue than the Equal Protection Clause.This Comment argues that the Court should abandon the approaches advanced by Chief Justice Madsen and Justice Fairhurst and adopt Justice Johnson’s approach to interpreting and applying article I, section 12. Justice Johnson’s approach is consistent with the clause’s original intent, plain language, and the Court’s early decisions interpreting and applying it. Unlike the other approaches, Justice Johnson’s approach does not put judicial efficiency, finality, and the dignity of Washington courts and the state constitution at risk.

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P. Andrew Rorholm Zellers 87 Wash. L. Rev. 331
Title Author Citation
Foreword: The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment

Foreword: The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment

June 01, 2012 | 87 Wash. L. Rev. 369

(Excerpt) Christopher Hitchens’s maxim could be the epigraph quote to Robert Post’s thought-provoking new book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. While many might laud the democratization of knowledge and the ideal of free and equal competition of ideas in the proverbial marketplace, there are certain lines that cannot be crossed if the sun is to continue to rise in the east. This is but another way of saying that egalitarian principles cannot be allowed to run amok when it comes to how we understand truth or, if you will, expert knowledge.

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Ronald K.L. Collins & David M. Skover 87 Wash. L. Rev. 369
The First Amendment, the Courts, and "Picking Winners"

The First Amendment, the Courts, and "Picking Winners"

June 01, 2012 | 87 Wash. L. Rev. 397

(Excerpt) Dean Robert Post’s book—Democracy, Expertise, and Academic Freedom—reflects and requires serious thought about our First Amendment. This Essay addresses just two of the many interesting assertions Dean Post makes. The first is his claim that the advancement of knowledge in a democracy springs primarily from the knowledge that experts gather in discerning good from bad ideas, and that recognizing this value requires courts to develop criteria for determining which viewpoints are better in ongoing debates among experts. The second is Dean Post’s contention that the U.S. Constitution protects an individual right to academic freedom, which requires enforcing this right against academic institutions. The concern we have in each instance is with the role his theory assigns to courts in promoting some “experts” over others.

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Judge Thomas L. Ambro & Paul J. Safier 87 Wash. L. Rev. 397
Public Discourse, Expert Knowledge, and the Press

Public Discourse, Expert Knowledge, and the Press

June 01, 2012 | 87 Wash. L. Rev. 409

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse and social practices can do any analytic work independent of the value of democratic legitimation, or instead are simply labels for speech that furthers it. Consideration of the press helps to illuminate the problem and a potential solution. The second complication is the interface between expert knowledge and public discourse. Post’s theory of democratic competence convincingly explains how such knowledge is created and circulated outside of public discourse. But in order to inform self-governance, expert knowledge must ultimately be disseminated into public discourse. The theory does not yet account for how this happens, nor how such expert knowledge can serve an informative function, given that public discourse transmutes claims of expert knowledge into statements of opinion. Again, the press serves as an illustrative and important example.

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Joseph Blocher 87 Wash. L. Rev. 409
The First Amendment's Epistemological Problem

The First Amendment's Epistemological Problem

June 01, 2012 | 87 Wash. L. Rev. 445

(Excerpt) A standard rule of thumb in journalism tells us that three of anything is a trend. Whatever the subject, high or low, no journalist will consider something a trend until he or she can find three examples. Once they are found, however, the newspapers and other outlets will fill with pieces gushing that “everybody’s doing it.”

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Paul Horwitz 87 Wash. L. Rev. 445
A View from the First Amendment Trenches: Washington State's New Protections for Public Disclosure and Democracy

A View from the First Amendment Trenches: Washington State's New Protections for Public Disclosure and Democracy

June 01, 2012 | 87 Wash. L. Rev. 495

In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Dean Robert Post promotes the concept of “democratic legitimation” as the cornerstone of democratic decision making. Dean Post defines “democratic legitimation” as “all efforts” to influence “public opinion.” As Post explains, “[d]emocracy requires that government action be tethered to public opinion” because “public opinion can direct government action in an endless variety of directions.” As a result, First Amendment coverage should extend to all communications that form public opinion, he contends. Those who object to speech aimed at influencing public opinion have learned they can file a Strategic Lawsuit Against Public Participation (SLAPP). The purpose of the SLAPP suit is to impede efforts to influence public opinion by intimidating the speaker with expensive and lengthy litigation. Since the late 1980s, states have reacted to SLAPP lawsuits by enacting anti-SLAPP statutes. Washington State has had a statute in place since 1989 that protects speakers from litigation resulting from statements made to government officials. In 2010, the Washington legislature expanded those protections by enacting Revised Code of Washington 4.24.510, which more broadly protects speakers who comment on matters of public concern. This Article reviews Dean Post’s theory of democratic legitimation and then looks at statutes across the nation and in Washington that are aimed at protecting speakers from litigation that seeks to chill the First Amendment rights of citizens who comment on matters of public concern. The Article concludes that Washington’s new statute promotes Dean Post’s goal of democratic legitimation.

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Bruce E.H. Johnson & Sarah K. Duran 87 Wash. L. Rev. 495
Democratic Competence, Constitutional Disorder, and the Freedom of the Press

Democratic Competence, Constitutional Disorder, and the Freedom of the Press

June 01, 2012 | 87 Wash. L. Rev. 529

In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post’s book by focusing on the potential interaction between Post’s theory of “democratic competence” and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a “democratic competence” approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer the unanswerable question about what the First Amendment’s Press Clause actually protects. By the same logic, though, it might also provide for greater restraint on the media insofar as it constitutionalizes conventional arguments about the need to honor the government’s expertise when protecting national security secrets against public dissemination. Thus, the question Post really raises is whether such a deeper but narrower First Amendment is one to which we should aspire.

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Stephen I. Vladeck 87 Wash. L. Rev. 529
Reply: Understanding the First Amendment

Reply: Understanding the First Amendment

June 01, 2012 | 87 Wash. L. Rev. 549

(Excerpt) It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible.

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Robert C. Post 87 Wash. L. Rev. 549
Robert C. Post, Selected Bibliography of First Amendment Scholarship

Robert C. Post, Selected Bibliography of First Amendment Scholarship

June 01, 2012 | 87 Wash. L. Rev. 565

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87 Wash. L. Rev. 565
Defining “Breach of The Peace” in Self-Help Repossessions

Defining “Breach of The Peace” in Self-Help Repossessions

June 01, 2012 | 87 Wash. L. Rev. 569

Since Roman times, creditors have invoked the limited extrajudicial remedy of self-help repossession. Pre-colonial English laws also allowed for a limited repossession remedy outside of the courts, provided the creditor accomplished the repossession without a “breach of the peace.” The Uniform Commercial Code (UCC) has allowed for the self-help remedy since the 1950s, making it available for any secured party in the event of contractual default so long as there was no breach of the peace. The drafters of the UCC, however, failed to define what constituted a “breach of the peace,” choosing to allow the courts to flesh out the definition in a fact specific, ex post fashion. This has resulted in a lack of clarity and consistency across jurisdictions as each court attempts to craft a breach of the peace requirement without guidance from the UCC. This Comment argues that courts across the country should adopt a two-part test for determining whether a breach of the peace occurred during self-help repossession. The two-part test involves three per se rules of exclusion followed by consideration of two factors to reach a final decision.

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Ryan McRobert 87 Wash. L. Rev. 569
Addressing the Costs and Comity Concerns of International E-Discovery

Addressing the Costs and Comity Concerns of International E-Discovery

June 01, 2012 | 87 Wash. L. Rev. 595

The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (e- discovery) of many different forms of ESI. In 1978, the U.S. Supreme Court held that the party responding to an e-discovery request presumptively pays all e-discovery costs, including the costs of preserving, producing, and reviewing the requested ESI. Therefore, the rapidly increasing volume of ESI has substantially increased the costs of e-discovery for producing parties. In the 2003 case, Zubulake v. UBS Warburg LLC, the U.S. District Court for the Southern District of New York established a two-step test that allows a court to shift some of the e-discovery costs from the responding party to the requesting party. Since 2003, many federal district courts and some state courts have followed the two-step Zubulake test for conducting e-discovery in the United States. However, no court has yet established a test for cost-shifting in international e-discovery—conducting e-discovery on ESI located outside the United States. International e-discovery has unique costs and implicates concerns of national sovereignty. This Comment argues that courts should adopt a cost-shifting test for international e-discovery that starts with a comity analysis and then applies Zubulake’s two- step cost-shifting test. Furthermore, courts applying this test should enforce cost-shifting orders through an escrow system whereby the requesting party will deposit some of the shifted costs with the court for later disbursement to the producing party.

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John T. Yip 87 Wash. L. Rev. 595
Title Author Citation
In Memoriam: Professor Emeritus Richard O. Kummert

In Memoriam: Professor Emeritus Richard O. Kummert

October 01, 2012 | 87 Wash. L. Rev. 639

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Kellye Y. Testy, et al . 87 Wash. L. Rev. 639
State Default and Synthetic Bankruptcy

State Default and Synthetic Bankruptcy

October 01, 2012 | 87 Wash. L. Rev. 657

An insolvent state does not need bankruptcy if sovereign immunity would protect it from lawsuits and other collection efforts. To the extent that a state is not judgment-proof and needs bankruptcy, we may not need to modify the Federal Bankruptcy Code to allow it to file. First, a substantial share of state spending flows through their municipalities, and these municipalities have substantial obligations of their own. Unlike states, municipalities can file for bankruptcy under current law, and a state could substantially reduce the cost of accomplishing its own fiscal goals by forcing its municipalities to file. Second, states may be able to create their own synthetic “bankruptcy” mechanisms, or bankruptcy without the federal code. State obligations are creatures of state law; states do not need a federal bankruptcy discharge. Federal law would not preempt a state composition mechanism used to adjust these debts, and any adjustment that would have been confirmed by a bankruptcy court would likely survive a Contract Clause challenge as well. Even if a state does not enact a composition mechanism, it could capture most of the benefits of federal bankruptcy by directly altering the rights of its creditors. A synthetic bankruptcy mechanism created by a state would not precisely replicate a federal bankruptcy chapter for states. Perhaps the best argument for federal bankruptcy is that it could operate with significantly lower transactions costs. In a world without omniscient judges, however, transactions costs can actually increase welfare by enhancing the ability of a state to make credible commitments.

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Richard M. Hynes 87 Wash. L. Rev. 657
Selling Advice and Creating Expectations: Why Brokers Should Be Fiduciaries

Selling Advice and Creating Expectations: Why Brokers Should Be Fiduciaries

October 01, 2012 | 87 Wash. L. Rev. 707

Investors face a dizzying array of choices regarding where to invest their funds and increasingly rely on experts for advice. Most advice about securities is provided by investment advisers or broker-dealers, legal categories with little meaning to most people but fraught with consequences. Although advisers and brokers often perform the same function, advisers are subject to a strict fiduciary standard to act in their clients’ best interest while brokers are subject to a less rigorous standard of suitability to ensure that their recommendations are suitable for customers. In 2010, the Dodd-Frank Act authorized the U.S. Securities and Exchange Commission (SEC) to harmonize the regulation of advisers and brokers and impose a fiduciary duty on brokers that give advice. This Article is about whether the SEC should exercise its authority. After explaining the historical context of the debate over a fiduciary standard, the Article critiques common arguments for a fiduciary duty, concluding that they are incomplete and do not alone justify a change in the law. The Article then puts forth a better justification, based on the reasonable expectations of investors. Reasonable expectations arise from brokers marketing their services as advisory and using titles, such as financial advisor and financial consultant. Reasonable expectations provide a stronger justification for a fiduciary standard than the conventional arguments.

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Arthur B. Laby 87 Wash. L. Rev. 707
Talking Drugs: The Burdens of Proof in Post-Garcetti Speech Retaliation Claims

Talking Drugs: The Burdens of Proof in Post-Garcetti Speech Retaliation Claims

October 01, 2012 | 87 Wash. L. Rev. 777

Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that the Court should require employers to meet their burden with clear and convincing evidence. Further, when applying the speech retaliation test to law enforcement employees criticizing the war on drugs, the Court should rule that it constitutes speech as a “citizen on a matter of public concern,” and should abandon the quasimilitary rule when engaging in “Pickering balancing.”

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Thomas E. Hudson 87 Wash. L. Rev. 777
Executive Privilege Under Washington’s Separation of Powers Doctrine

Executive Privilege Under Washington’s Separation of Powers Doctrine

October 01, 2012 | 87 Wash. L. Rev. 813

Since United States v. Nixon, the U.S. Supreme Court has recognized a qualified executive privilege grounded in federal separation of powers. The privilege allows the President to withhold executive branch communications when disclosure would undermine presidential decisionmaking while executing core constitutional duties. Several states have followed the Supreme Court’s lead and adopted an analogous gubernatorial privilege under state constitutional separation of powers. Focusing on Washington State’s well-developed separation of powers doctrine and strong populist history, this Comment argues that the Washington State Supreme Court should recognize a qualified gubernatorial privilege that also respects the state’s long history of citizen oversight.

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Lee Marchisio 87 Wash. L. Rev. 813
Pressing Washington’s Wine Industry into the Twenty-First Century: Rethinking What It Means to Be a Winery

Pressing Washington’s Wine Industry into the Twenty-First Century: Rethinking What It Means to Be a Winery

October 01, 2012 | 87 Wash. L. Rev. 851

Washington’s wine industry is growing, and the ways in which Washington winemakers craft and sell their product are changing. Traditional “brick and mortar” wineries coexist with so-called “virtual wineries,” which typically purchase grapes from growers and contract with other wineries or custom crush facilities to access winemaking equipment. The virtual winery is an incubator model and contributes to the rich diversity of Washington’s wine industry. Washington’s current winery licensing statute, RCW 66.24.170, does not clearly apply to virtual wineries because it links the concept of a winery with a particular physical location and fails to delineate exactly what types of winemaking activities licensees must engage in. This statutory ambiguity causes confusion for winemakers and regulators. House Bill 1641, introduced in January 2011, seeks to remedy the confusion by dividing the current winery licensing statute into two classes: one for traditional wineries, and one for virtual wineries. The latter would be licensed not as producers of wine but as retailers. While well-intentioned, House Bill 1641 could negatively impact Washington’s wine industry by limiting virtual wineries’ access to consumers via interstate direct shipment. Unlike licensed wine producers, wine retailers presently lack Commerce Clause protection from state laws discriminating against direct shipment of out-of-state wine. Thus, this Comment argues that Washington should follow the example of Oregon and enact legislation amending RCW 66.24.170 to clearly license virtual wineries as producers.

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Rebecca Thompson 87 Wash. L. Rev. 851
Protecting Child Victims’ Rights As Vigorously As Criminal Defendants’ When Prosecuting Possession or Distribution of Child Pornography

Protecting Child Victims’ Rights As Vigorously As Criminal Defendants’ When Prosecuting Possession or Distribution of Child Pornography

October 01, 2012 | 87 Wash. L. Rev. 883

Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state’s evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims’ privacy and renewal of their abuse. The Washington State Legislature recently enacted Substitute House Bill 2177 (“H.B. 2177”), which amends the legislative findings on the child pornography epidemic, and places certain limits on the discovery of child pornography evidence. These limitations are found in the new statute RCW 9.68A.170. Washington’s law is modeled closely on the Adam Walsh Child Protection and Safety Act of 2006, which has withstood numerous federal constitutional challenges. This Comment argues that the Washington State Supreme Court should uphold RCW 9.68A.170 as constitutional, and overrule its earlier decisions in State v. Boyd and State v. Grenning, which created a per se rule requiring the State to provide child pornography evidence to criminal defendants.

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