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Race and Washington’s Criminal Justice System: 2021 Report to the Washington Supreme Court Race and Washington’s Criminal Justice System: 2021 Report to the Washington Supreme Court March 01, 2022 | 97 Wash. L. Rev. 1 Task Force 2.0 Editor's Note: As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections on the development of our field. In the spirit of this tradition, we present this report in all three of our publications. This joint publication represents a unified recognition of the paramount importance of identifying and addressing racial disparities in our state’s justice system. As future legal professionals, we are proud to support this work and to amplify voices seeking to promote fairness and justice. |
Task Force 2.0 | 97 Wash. L. Rev. 1 |
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How Should Inheritance Law Remediate Inequality? How Should Inheritance Law Remediate Inequality? March 01, 2022 | 97 Wash. L. Rev. 61 Felix B. Chang Abstract: This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs. |
Felix B. Chang | 97 Wash. L. Rev. 61 |
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The New Bailments The New Bailments March 01, 2022 | 97 Wash. L. Rev. 97 Danielle D’Onfro Abstract: The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care and may be liable if they fail to return the property. The parties can use contracts to customize the relationship but not to disclaim the duty of care entirely. |
Danielle D’Onfro | 97 Wash. L. Rev. 97 |
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Qualified Sovereignty Qualified Sovereignty March 01, 2022 | 97 Wash. L. Rev. 155 Kate Sablosky Elengold & Jonathan D. Glater Abstract: Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight. |
Kate Sablosky Elengold & Jonathan D. Glater | 97 Wash. L. Rev. 155 |
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The Dignitary Confrontation Clause The Dignitary Confrontation Clause March 01, 2022 | 97 Wash. L. Rev. 207 Erin Sheley Abstract: For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving statements to law enforcement officers and written affidavits of crime lab technicians. In these cases, for apparently pragmatic reasons, various pluralities of the Court appear to have redefined “testimonial” to mean, at least in part, “potentially unreliable,” thereby contradicting the goal of Crawford. |
Erin Sheley | 97 Wash. L. Rev. 207 |
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Queer and Convincing: Reviewing Freedom of Religion and LGBTQ+ Protections Post-Fulton v. City of Philadelphia Queer and Convincing: Reviewing Freedom of Religion and LGBTQ+ Protections Post-Fulton v. City of Philadelphia March 01, 2022 | 97 Wash. L. Rev. 265 Arianna Nord Abstract: Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these competing discriminations. This Comment addresses which standard of review federal courts ought to apply when considering whether LGBTQ+-protective laws violate the Free Exercise Clause of the First Amendment. View Article × |
Arianna Nord | 97 Wash. L. Rev. 265 |
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Let Us Not Be Intimidated: Past and Present Applications of Section 11(b) of The Voting Rights Act Let Us Not Be Intimidated: Past and Present Applications of Section 11(b) of The Voting Rights Act March 01, 2022 | 97 Wash. L. Rev. 301 Carly E. Zipper Abstract: As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b). |
Carly E. Zipper | 97 Wash. L. Rev. 301 |
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Third-Party Sexual Harassment: The Challenge of Title IX Obligations for Law School Clinics Third-Party Sexual Harassment: The Challenge of Title IX Obligations for Law School Clinics March 01, 2021 | 96 Wash. L. Rev. 1 Ty Alper Abstract: Law faculty who teach and train students in clinical settings regularly expose students to the potential for sexual harassment. Because clinics involve actual cases in real-world contexts, students may encounter sexual harassment from third parties such as clients, witnesses, and judges. Do faculty who tolerate this exposure run afoul of their obligations under Title IX to stop and remedy sexual harassment about which they are, or should be, aware? |
Ty Alper | 96 Wash. L. Rev. 1 |
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Contracting in the Age of Smart Contracts Contracting in the Age of Smart Contracts March 01, 2021 | 96 Wash. L. Rev. 51 Farshad Ghodoosi Abstract: Smart contracts lie at the heart of blockchain technology. There are two principal problems, however, with existing smart contracts: first, the enforceability of smart contracts remains ambiguous. Second, smart contracts are limited in scope and capability barring more complex contracts from being executed via blockchain technology. Drawing from the existing literature on contracts and smart contracting, this Article suggests new approaches to address these two problems. First, it proposes a framework based on reliance-based contracting to analyze smart contracts. Second, the Article analyzes the seismic shifts in contractual disputes, and offers new insights into its features including decentralized decision-making, network-based dispute resolution, and extrajudicial enforcement of decisions. The Article concludes that users’ reliance should be the basis for analysis of smart contracts and its associated dispute resolution mechanism. View Article × |
Farshad Ghodoosi | 96 Wash. L. Rev. 51 |
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Applying the Health Justice Framework to Address Health and Health Care Inequities Experienced by People with Disabilities During and After COVID-19 Applying the Health Justice Framework to Address Health and Health Care Inequities Experienced by People with Disabilities During and After COVID-19 March 01, 2021 | 96 Wash. L. Rev. 93 Robyn M. Powell, PhD, JD Abstract: The COVID-19 pandemic has been especially devastating for people with disabilities, as well as other socially marginalized communities. Indeed, an emerging body of scholarship has revealed that people with disabilities are experiencing striking disparities. In particular, scholars have shined a light on state and hospital triage policies that allow hospitals to ration critical health care and resources, such as ventilators, for people with disabilities if resources become limited and they cannot treat all patients during the pandemic. These injustices deserve extensive consideration from policymakers, legal professionals, and scholars. |
Robyn M. Powell, PhD, JD | 96 Wash. L. Rev. 93 |
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Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper March 01, 2021 | 96 Wash. L. Rev. 139 Erik Ugland & Christina Mazzeo Abstract: This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times over his tax records, to the civil suits spawned by the hack of DNC servers—so there is a pressing need for clarity. |
Erik Ugland & Christina Mazzeo | 96 Wash. L. Rev. 139 |
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My Cash Is My Bond: Recognizing Rights to Cash Bail Forfeiture Exoneration in Washington My Cash Is My Bond: Recognizing Rights to Cash Bail Forfeiture Exoneration in Washington March 01, 2021 | 96 Wash. L. Rev. 209 Olivia M. Hagel Abstract: When criminal defendants fail to appear for a court date after they are released on a bail bond or cash bail, Washington courts will likely forfeit their bail. And when the defendant reappears—whether a day, a month, or a year later—that same court might return, or “exonerate,” the bail bond or cash bail. |
Olivia M. Hagel | 96 Wash. L. Rev. 209 |
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Reframing Church Property Disputes in Washington State Reframing Church Property Disputes in Washington State March 01, 2021 | 96 Wash. L. Rev. 241 Theodore G. Lee Abstract: Real property disputes between units or members of the same church are common in the United States. To resolve such disputes, the Supreme Court has endorsed two doctrines: the hierarchical deference approach and the neutral-principles of law approach. The Court has justified both doctrines on the First Amendment’s Establishment and Free Exercise Clauses, but this justification is problematic. Specifically, under the hierarchical deference approach courts must always give preferential treatment to one religious group over others—effectively endorsing a particular religion. On the other hand, courts can enforce their own interpretations of religious issues under the neutral-principles approach, thereby infringing free exercise of religious beliefs. And because Washington State courts use both approaches, they also use a flawed jurisprudence. To cure these defects, this Comment proposes that Washington State courts should treat church property disputes the way they treat property disputes from secular nonprofits or fraternity organizations. This streamlined treatment conforms to existing statutes and to Washington State Supreme Court precedent. In sum, removing the First Amendment’s role is a simple and effective way for Washington State courts to resolve church property disputes without violating the federal Constitution. View Article × |
Theodore G. Lee | 96 Wash. L. Rev. 241 |
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Kū Kia‘I Mauna: Protecting Indigenous Religious Rights Kū Kia‘I Mauna: Protecting Indigenous Religious Rights March 01, 2021 | 96 Wash. L. Rev. 277 Joshua Rosenberg Abstract: Courts historically side with private interests at the expense of Indigenous religious rights. Continuing this trend, the Hawai‘i State Supreme Court allowed the Thirty- Meter-Telescope to be built atop Maunakea, a mountain sacred to Native Hawaiians. This decision led to a mass protest that was organized by Native Hawaiian rights advocates and community members. However, notwithstanding the mountain’s religious and cultural significance, Indigenous plaintiffs could not prevent construction of the telescope on Maunakea. |
Joshua Rosenberg | 96 Wash. L. Rev. 277 |
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Let Indians Decide: How Restricting Border Passage by Blood Quantum Infringes on Tribal Sovereignty Let Indians Decide: How Restricting Border Passage by Blood Quantum Infringes on Tribal Sovereignty March 01, 2021 | 96 Wash. L. Rev. 311 Rebekah Ross Abstract: American immigration laws have been explicitly racial throughout most of the country’s history. For decades, only White foreign nationals could become naturalized citizens. All racial criteria have since vanished from the Immigration and Nationality Act (INA)—all but one. Section 289 of the INA allows “American Indians born in Canada” to freely cross into the United States if they possess at least 50% blood “of the American Indian race.” Such American Indians cannot be prohibited from entering the United States and can obtain lawful permanent residence status—if they meet the blood quantum requirement. Such racialized immigration controls arbitrarily restrict cross-border Indigenous communities and have since their inception in the mid-1800s. |
Rebekah Ross | 96 Wash. L. Rev. 311 |
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Revising Reasonableness in the Cloud Revising Reasonableness in the Cloud March 01, 2021 | 96 Wash. L. Rev. 343 Ian Walsh Abstract: Save everything—just in case—and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such communications, the existing protections for them are insufficient under the Fourth Amendment. To prevent broad intrusions into users’ reasonable expectation of privacy, this Comment proposes an approach akin to Berger v. New York, where the Supreme Court invalidated a statute that allowed invasive real-time eavesdropping because the statute did not require sufficient particularization. Like in Berger, seizures of private communications in the cloud should require a warrant based on probable cause that is sufficiently particularized to protect against indiscriminate, large-scale data collection and roving searches by the government. View Article × |
Ian Walsh | 96 Wash. L. Rev. 343 |
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Health Care Fraud Means Never Having to Say You’re Sorry Health Care Fraud Means Never Having to Say You’re Sorry June 01, 2021 | 96 Wash. L. Rev. 371 Jacob T. Elberg Abstract: For decades, the Department of Justice (DOJ) has issued a steady flood of press releases announcing False Claims Act (FCA) settlements against health care entities and extolling the purportedly sharp message sent to the industry through these settlements about the consequences of engaging in wrongdoing. The FCA is the primary mechanism for government enforcement against health care entities engaged in wrongdoing, and it is expected to be DOJ’s key tool for addressing fraud arising out of government programs in response to the COVID-19 pandemic. DOJ has pointed to three key goals of its enforcement efforts (deterrence, incentivizing cooperation, and building a culture of compliance in the health care industry). However, careful examination of the settlements touted in those DOJ press releases calls into question whether DOJ’s settlement practices are conveying the message DOJ seeks to impart or having the impact it hopes to achieve. |
Jacob T. Elberg | 96 Wash. L. Rev. 371 |
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Beyond “Children Are Different”: The Revolution in Juvenile Intake and Sentencing Beyond “Children Are Different”: The Revolution in Juvenile Intake and Sentencing June 01, 2021 | 96 Wash. L. Rev. 425 Josh Gupta-Kagan Abstract: For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted rather than diverted, and when and for how long they may be incarcerated or kept on probation based on the specific offense alleged or adjudicated. |
Josh Gupta-Kagan | 96 Wash. L. Rev. 425 |
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Talking Back in Court Talking Back in Court June 01, 2021 | 96 Wash. L. Rev. 493 M. Eve Hanan Abstract: People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence. |
M. Eve Hanan | 96 Wash. L. Rev. 493 |
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Inheritance Crimes Inheritance Crimes June 01, 2021 | 96 Wash. L. Rev. 561 David Horton & Reid Kress Weisbord Abstract: The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust—mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges. |
David Horton & Reid Kress Weisbord | 96 Wash. L. Rev. 561 |
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Benevolent Exclusion
Benevolent Exclusion
June 01, 2021 | 96 Wash. L. Rev. 613 Anna Offit Abstract: The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity of ideas, experiences, and frames of interpretation that characterize the American population. By failing to make sure that people who are poor can serve, we impoverish our shared understanding of doing justice. |
Anna Offit | 96 Wash. L. Rev. 613 |
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Bully No More: Why Trademark Owners Engage in Trademark Overreach and How to Prevent It Bully No More: Why Trademark Owners Engage in Trademark Overreach and How to Prevent It June 01, 2021 | 96 Wash. L. Rev. 667 Quynh La Abstract: At its core, trademark law exists as a tool for consumer protection. Thus, trademark owners use policing and enforcement to maintain a trademark’s goodwill, which in turn protects consumers from confusion. But policing and enforcement can lead to trademark overreach and bullying—which undermine the goal of trademark law. This Comment explains that trademark owners are incentivized to engage in aggressive enforcement tactics because courts weigh enforcement efforts in favor of trademark strength. And strong trademarks receive strong protection because such marks are more likely to succeed in trademark infringement litigation. To curb trademark bullying and realign trademark law with its consumer protection purpose, this Comment argues that courts assessing trademark strength should focus on evidence of marketing strategies and consumer perception rather than trademark enforcement. View Article × |
Quynh La | 96 Wash. L. Rev. 667 |
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How Far Will Fara Go? The Foreign Agents Registration Act and the Criminalization of Global Human Rights Advocacy How Far Will Fara Go? The Foreign Agents Registration Act and the Criminalization of Global Human Rights Advocacy June 01, 2021 | 96 Wash. L. Rev. 695 Monica Romero Abstract: The Foreign Agents Registration Act (FARA) was enacted and enforced during World War II to protect the American public from foreign propaganda, especially from the Nazi party. Following the war, FARA was scarcely used for over half a century. But in the past five years, there has been a significant uptick in FARA enforcement, particularly against major political personalities. The revival of FARA has led many legislators and scholars to advocate for expansions of FARA’s scope and enforcement mechanisms in the name of national security. But most have failed to acknowledge the risk and likelihood of politicized enforcement. The United States government is positioned to use FARA to harass organizations critical of the United States—in particular, human rights organizations (HROs) that take politically unpopular positions. The forced association of FARA’s registration requirements could jeopardize HROs’ ability to engage in advocacy by fostering public distrust and social stigma. Accordingly, politicized FARA enforcement against such organizations violates the First Amendment. This Comment advises human rights organizations that have been subject to a politicized FARA enforcement action on how to best attack it and urges Congress to amend FARA to protect these groups and their interests. View Article × |
Monica Romero | 96 Wash. L. Rev. 695 |
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Water Banks in Washington State: A Tool for Climate Resilience Water Banks in Washington State: A Tool for Climate Resilience June 01, 2021 | 96 Wash. L. Rev. 729 Jennifer J. Seely Abstract: Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and productive uses while maintaining water in streams. Moving forward, Washington should embrace water banks for each unique basin’s needs. View Article × |
Jennifer J. Seely | 96 Wash. L. Rev. 729 |
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Reimagining Exceptional Events: Regulating Wildfires Through the Clean Air Act Reimagining Exceptional Events: Regulating Wildfires Through the Clean Air Act June 01, 2021 | 96 Wash. L. Rev. 765 Emily Williams Abstract: Wildfires are increasing in both frequency and severity due to climate change. Smoke from these fires causes serious health problems. Land managers agree that prescribed burns help mitigate these negative consequences. Prescribed burns are lower-intensity fires that are intentionally ignited and managed for an ecological benefit. They reduce the amount of smoke produced and limit wildfire damage to natural systems and human property. |
Emily Williams | 96 Wash. L. Rev. 765 |
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The Euclid Proviso The Euclid Proviso October 01, 2021 | 96 Wash. L. Rev. 811 Ezra Rosser Abstract: This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial and economic status quo, it is time for scholars and policymakers to move away from traditional zoning and towards more permissive regional or state approaches to housing development. View Article × |
Ezra Rosser | 96 Wash. L. Rev. 811 |
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Revocation and Retribution Revocation and Retribution October 01, 2021 | 96 Wash. L. Rev. 881 Jacob Schuman Abstract: Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration. |
Jacob Schuman | 96 Wash. L. Rev. 881 |
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The Federal Option: Delaware as a De Facto Agency The Federal Option: Delaware as a De Facto Agency October 01, 2021 | 96 Wash. L. Rev. 935 Omari Scott Simmons Abstract: Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the “Federal Option” for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware’s jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses a vexing question: Can Delaware, a haven for incorporation and adjudication, serve as an effective national regulator? Following an analysis of federal chartering alternatives, such as the Nader Plan, the Warren Plan, the Sanders Plan, and other modes of regulation, the answer is yes, but with some caveats and qualifications. Delaware’s adequate, if imperfect, performance as a surrogate national regulator of corporate internal affairs argues against the upheaval of the existing corporate law framework federal chartering would bring. Even in the contemporary moment where longstanding concerns about corporate power, purpose, accountability, and the uneasy relationship between corporations and society are amplified, Delaware can continue to perform an important agency-like role in collaboration with federal regulators and regulated firms. A deeper examination comparing the merits of federal corporate chartering with Delaware’s de facto agency function illuminates the potential of existing and future reforms. This Article concludes that federal chartering proposals have an important impact despite not being adopted for centuries. First, federal chartering proposals encourage policymakers to look beyond the status quo toward greater hybridization in regulatory design. Second, elements of previous federal chartering proposals have historically become successful “à la carte” reforms or part of other successful reform measures. Third, federal chartering proposals provide value as a bargaining tool where the threat of more intrusive federal regulation makes other reform methods more palatable to diverse corporate constituencies. View Article × |
Omari Scott Simmons | 96 Wash. L. Rev. 935 |
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The Meaning, History, and Importance of the Elections Clause The Meaning, History, and Importance of the Elections Clause October 01, 2021 | 96 Wash. L. Rev. 997 Eliza Sweren-Becker & Michael Waldman Abstract: Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules. But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving as the primary constitutional basis for democracy reform legislation that passed the U.S. House of Representatives in 2019 and was reintroduced in 2021. Increased interest heightens the need for a deeper understanding of the intent and meaning of the Elections Clause. This Article fills a gap in the literature by providing a first-of-its-kind comprehensive analysis of the purpose, meaning, and interpretation of the Elections Clause by the Framers, early Congresses, and federal courts. View Article × |
Eliza Sweren-Becker & Michael Waldman | 96 Wash. L. Rev. 997 |
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“Send Freedom House!”: A Study in Police Abolition “Send Freedom House!”: A Study in Police Abolition October 01, 2021 | 96 Wash. L. Rev. 1067 Tiffany Yang Abstract: Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian paramedic service in Pittsburgh, Pennsylvania, that was created in the late 1960s to confront the racialized violence and neglect inflicted by police ambulance drivers. This Essay outlines the now abolished practice of ambulance policing, explores the city’s response to Freedom House’s revolutionary program, and analyzes current efforts of police reform through this historical lens. View Article × |
Tiffany Yang | 96 Wash. L. Rev. 1067 |
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The Implausibility Standard for Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard and Affirmative Defenses The Implausibility Standard for Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard and Affirmative Defenses October 01, 2021 | 96 Wash. L. Rev. 1113 Celeste Anquonette Ajayi Abstract: Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims. The current heightened pleading standard established by Twiqbal, also referred to as the plausibility pleading standard, serves as a gatekeeping mechanism that keeps environmental plaintiffs out of courts and away from justice by dismissing meritorious claims. Meanwhile, courts have repeatedly refused to apply the heightened pleading standard to defendants’ pleadings, namely affirmative defenses, resulting in a split across the circuit courts. This practice aids defendants at the expense of plaintiffs by allowing defendants to adhere to a less stringent standard, putting plaintiffs on unequal footing. The standard allows defendants to make conclusory assertions, which may effectively defeat a plaintiff’s case. Further, this practice increases the possibility of judicial bias because various courts across the United States apply different standards to both parties. If courts instead uniformly applied the heightened pleading standard to both plaintiffs and defendants alike and allowed environmental plaintiffs relaxed specificity requirements due to their limited access to information at the pleading stage, it could address some of the inequalities created as a result of Twiqbal. This Comment examines the impact of the heightened pleading standard on environmental plaintiffs and proposes the circuit split be reconciled. Part I discusses the massive shift to the heightened pleading standard from Conley to Twombly and Iqbal. Part II explains three main critiques of the Twiqbal plausibility pleading standard. Part III discusses the unique attributes of environmental litigation that are in conflict with the heightened pleading standard. Part IV explains the conflict between the heightened pleading standard and environmental litigation through a case study of the different ways in which courts have inconsistently applied the heightened pleading standard to plaintiffs’ claims and defendants’ affirmative defenses. Finally, Part V argues that courts should apply the Twiqbal standard in a consistent manner to both plaintiffs and defendants, as well as provide flexibility to environmental plaintiffs’ pleadings to ensure plaintiffs have adequate access to the requisite information needed to sufficiently plead their cases and receive justice. View Article × |
Celeste Anquonette Ajayi | 96 Wash. L. Rev. 1113 |
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Police or Pirates? Reforming Washington’s Civil Asset Forfeiture System Police or Pirates? Reforming Washington’s Civil Asset Forfeiture System October 01, 2021 | 96 Wash. L. Rev. 1147 Jasmin Chigbrow Abstract: Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, and protection from double jeopardy, among others. Washington’s civil forfeiture laws currently provide minimal legal protection for property owners and contain a profit motive for police to pursue property forfeiture. Washington agencies need only prove property is connected to illegal activity by a preponderance of the evidence to forfeit, or permanently keep, the item. This is the second lowest burden of proof for civil forfeiture in the country. Moreover, Washington state law allows agencies to retain 90% of the proceeds from forfeited property. Washington also utilizes administrative forfeitures, which are nonjudicial proceedings handled by an officer of the seizing agency. These provisions combine to create serious due process concerns in Washington’s civil forfeiture system. This Comment addresses these concerns and proposes a reform of the statutory scheme to eliminate civil forfeiture completely by replacing it with a criminal forfeiture system like New Mexico’s. Under New Mexico law, property owners must be convicted of a crime before their property can be forfeited and all forfeiture proceeds are transferred to the state’s general fund. By funneling forfeitures through the criminal system and eliminating any profit motive, New Mexico property owners are provided with legal protections that are severely lacking in Washington’s current civil forfeiture system. Washington should implement similar reforms to protect the due process rights of property owners and prevent forfeiture abuse by law enforcement. View Article × |
Jasmin Chigbrow | 96 Wash. L. Rev. 1147 |
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How the Gun Control Act Disarms Black Firearm Owners How the Gun Control Act Disarms Black Firearm Owners October 01, 2021 | 96 Wash. L. Rev. 1191 Maya Itah Abstract: Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners. This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to the Civil Rights Movement. Next, Part II outlines the ways different circuits have interpreted § 924(c), demonstrating how those interpretations disadvantage Black defendants. Finally, Part III puts forth two proposals for reform: interpreting § 924(c) more narrowly, or simply removing the language at issue from the GCA. These reforms would reduce racial disparities in the enforcement of § 924(c). They would also reaffirm the right of Black Americans to keep and bear arms for self-defense. View Article × |
Maya Itah | 96 Wash. L. Rev. 1191 |
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Copyrighting TikTok Dances: Choreography in the Internet Age Copyrighting TikTok Dances: Choreography in the Internet Age October 01, 2021 | 96 Wash. L. Rev. 1225 Ali Johnson Abstract: TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women of color) frequently do not receive credit, or the massive opportunities that come with such recognition. This Comment explores how intellectual property law may provide a framework to address this problem, while simultaneously acknowledging the troubled history between copyright and creators of color. It also situates the TikTok problem within a larger phenomenon: choreography is an increasingly important part of pop culture as video cements itself as the dominant communicative medium of the era. Accordingly, the challenges of asserting intellectual property rights over choreography (which have historically gone unsought and ignored) is a legal problem that will require renewed focus. Part I of this Comment describes the global ascent of TikTok as a platform for sharing choreography, and how the app serves as a touchpoint for a bigger story of cultural appropriation in the United States. Part II discusses copyright law and choreography, focusing on the required features a piece of choreography must have to be entitled to copyright protection, and the increasing importance of copyright protection for choreography in the internet age. Part III addresses the recent litigation between a popular video game, Fortnite, and a cadre of celebrities who claim the game copied their “signature dance moves” without compensation. Specifically, this Part investigates how the outcomes of those cases inform analysis for legal protection of TikTok dances. Part IV argues that under the current copyright regime, many TikTok dances likely qualify for copyright protection. However, given the importance of widespread dissemination to the success of TikTok dances, copyright protection––which would inevitably have a chilling effect on a dance’s dissemination––may not pave the appropriate path forward. This Part also presents potential solutions. These potential solutions include licensing schemes, as well as extralegal fixes TikTok could employ to meet the dual goals of allowing dissemination while simultaneously protecting the attribution rights of choreographers. View Article × |
Ali Johnson | 96 Wash. L. Rev. 1225 |
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Copyright’s Deprivations Copyright’s Deprivations December 01, 2021 | 96 Wash. L. Rev. 1275 Anne-Marie Carstens Abstract: This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, the remedy more likely reaches modern “dual-use” property that might be used partly, predominantly, or even exclusively for lawful uses, from computers to manufacturing equipment. The risk of constitutional violation is particularly acute in the Second and Ninth Circuits, where copyright suits predominate and where cases in recent years give cause for greater concern. In high-profile parallel actions in New York and California, for example, the Second Circuit rejected a sound engineer’s plea for return of equipment, computers, and hard drives that he argued were never used for infringement and contained unrelated, highly personal content, including irreplaceable family photos. The federal district court in a similar action in California held that the Ninth Circuit required the same. After scouring the history of this remedies provision, whose origins predate the Bill of Rights, this Article argues that this much-mutated remedy can run afoul of the Fifth Amendment because it is based on a historical fiction that has lost its force. Most notably, it can lead to an unconstitutionally arbitrary or excessive award that violates due process, and it might also rise to an unconstitutional taking of personal property. This Article maintains that courts can sidestep these constitutional landmines by making predicate findings of actual nexus, willfulness, and significant or substantial use to commit the infringement at issue. Moreover, reviewing courts should consistently review such orders de novo as a further safeguard against the risk of unconstitutional property deprivations. View Article × |
Anne-Marie Carstens | 96 Wash. L. Rev. 1275 |
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Hostile Restructurings Hostile Restructurings December 01, 2021 | 96 Wash. L. Rev. 1333 Diane Lourdes Dick Abstract: The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing. These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, but also the collective bargaining power of the entire lender group. In other words, in hostile restructurings, the goal of the negotiations is not simply to cram the restructuring down the throats of a self-interested or misguided minority holdout; instead, the goal is to cram the plan down on the entire lender group by pitting similarly situated lenders against one another. Hostile restructurings not only strain normal interlender dynamics—they also challenge traditional understandings of what it means to be a senior secured creditor. The ensuing lender arms race has, in turn, carved new fault lines in chapter 11 bankruptcy proceedings. Using detailed case studies, this Article is the first to explore both how these hostile restructurings differ from the traditional interlender conflict dynamics and how they amplify the distributional concerns that have traditionally plagued bankruptcy restructurings. View Article × |
Diane Lourdes Dick | 96 Wash. L. Rev. 1333 |
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Structural Barriers to Inclusion in Arbitrator Pools Structural Barriers to Inclusion in Arbitrator Pools December 01, 2021 | 96 Wash. L. Rev. 1389 Nicole G. Iannarone Abstract: Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both diverse and inclusive is necessary for legitimacy. The Article then evaluates the forum’s arbitrator selection protocol and identifies barriers that may prevent newer entrants, who have diversified the arbitrator roster, from presiding over consumer investors’ claims. Using publicly available information, it then evaluates whether newly recruited arbitrators presided over smaller customer claims that concluded after a hearing from 2015 to 2019. The results indicate that only 0.98% of decisions in smaller claim investor cases were rendered by arbitrators who first appeared in FINRA’s awards database after diversity recruitment efforts began in 2015. Though FINRA has diversified its arbitrator roster, few small investors receive the benefit of new entrants. The results illustrate the limits of transparency and the need for additional information to evaluate whether arbitrator pools are inclusive. The Article concludes with interventions to permit evaluation of diversification efforts and eliminate barriers to inclusion in arbitrator pools. The case study and resultant recommendations provide guidance that may serve as best practices for consumer arbitration forums wishing to ensure transparency and inclusion in their arbitrator pools. encies. View Article × |
Nicole G. Iannarone | 96 Wash. L. Rev. 1389 |
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Autonomous Corporate Personhood Autonomous Corporate Personhood December 01, 2021 | 96 Wash. L. Rev. 1453 Carla L. Reyes Abstract: Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks—and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the two only rarely overlap. As a result of this failure to communicate, both areas of personhood theory fail to account for the important role that socio-technical and socio-legal context plays in law and policy development. This Article fills the gap by investigating the limits of artificial rights at the intersection of corporations and artificial intelligence. Specifically, this Article argues that building a comprehensive legal approach to artificial rights—rights enjoyed by artificial people, whether corporate entity, machine, or otherwise—requires approaching the issue through a systems lens to ensure that the legal system adequately considers the varied socio-technical contexts in which artificial people exist. To make these claims, this Article begins by establishing a terminology baseline, and emphasizing the importance of viewing AI as part of a socio-technical system. Part I then concludes by reviewing the existing ecosystem of autonomous corporations. Parts II and III then examine the existing debates around artificially intelligent persons and corporate personhood, arguing that the socio-legal needs driving artificial personhood debates in both contexts include: protecting the rights of natural people, upholding social values, and creating a fiction for legal convenience. Parts II and III also explore the extent to which the theories from either set of literature fits the reality of autonomous businesses, illuminating gaps and using them to demonstrate that the law must consider the socio-technical context of AI systems and the socio-legal complexity of corporations to decide how autonomous businesses will interact with the world. Ultimately, the Article identifies and leverages links between both areas of legal personhood to demonstrate the Article’s core claim: developing law for artificial systems in any context should use the systems nature of the technical artifact to tie its legal treatment directly to the system’s socio-technical reality. ongresses, and federal courts. View Article × |
Carla L. Reyes | 96 Wash. L. Rev. 1453 |
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Community Empowerment in Decarbonization: NEPA’s Role Community Empowerment in Decarbonization: NEPA’s Role December 01, 2021 | 96 Wash. L. Rev. 1511 Wyatt G. Sassman Abstract: This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions of the transition—including the development of renewable energy projects. The Biden Administration has committed to both ambitions, but there is a gap regarding what role communities will play in policies designed to implement decarbonization. This Article articulates this “participatory gap” in decarbonization policy and proposes changes to the regulations implementing the National Environmental Policy Act of 1969 (NEPA) that start bridging these ambitions. The Article offers proposals that would leverage NEPA’s unique structure to empower communities in decarbonization. Specifically, it argues that NEPA’s regulations should be reformed to require meaningful community engagement and enforce that commitment through a revitalized executive enforcement structure. Contrary to views that more community engagement will slow decarbonization, this Article argues that these reforms would support the rapid transition to renewable energy while also empowering communities and elevating justice as a central value in environmental policy. View Article × |
Wyatt G. Sassman | 96 Wash. L. Rev. 1511 |
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You Are Not a Commodity: A More Efficient Approach to Commercial Privacy Rights You Are Not a Commodity: A More Efficient Approach to Commercial Privacy Rights December 01, 2021 | 96 Wash. L. Rev. 1567 Benjamin T. Pardue Abstract: United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing litigation where tortious conduct may improve the social good. Some scholars have already argued this point concerning trademark claims. This Comment is the first to apply this logic to appropriation of likeness claims. Further, overprotecting a person’s recognizability as though it is a sacred property right contributes to advertisers’ appetite for commodifying consumer time. As an analogy, consider Ms. Moneybags, the owner of a shoe factory. Ms. Moneybags has no personal use for the 10,000 shoes generated by her factory every day; rather, she creates shoes to sell. She then uses sales revenue to purchase more equipment, hire more workers, and grow her business to make more money. By creating and commodifying shoes, Ms. Moneybags exploits natural resources and labor to increase her capital. Through a similar analogy, consider Mr. Moviestar, a public personality who uses his recognizability to generate attention through media. While business models vary, he sells consumer attention to advertisers, thereby commodifying attention. Like Ms. Moneybags, Mr. Moviestar’s use for the attention from the masses is limited. In turn, as consumers pay more attention to Mr. Moviestar, his recognizability grows; he then uses his recognizability to garner more consumer attention, which he continues to sell to advertisers. Ultimately, Mr. Moviestar increases his recognizability—his personal brand’s value—by exploiting consumer time and attention. Ample literature on law and economics suggests that overprotection of property rights leads to suboptimal outcomes. Likewise, if tort law overprotects public personalities’ exclusive right to publicize their name or likeness, then the incentive to build their personal brand value may be inefficiently high. But public renown does not come from thin air. A personal brand is built by commodifying consumers’ time and attention. Accordingly, overprotecting the exclusive right to publicize one’s name or likeness may feed advertisers’ appetite for consumer attention. This Comment argues that tort damages in an appropriation of name or likeness action should be limited to the fair market value of the use. This would mitigate windfalls to plaintiffs, thereby easing the incentive to commodify consumer time and attention. Further, this Comment argues that, in rare instances where an excessive award might be merited, such actions are better suited for a different privacy tort. View Article × |
Benjamin T. Pardue | 96 Wash. L. Rev. 1567 |
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Due Process in Prison Disciplinary Hearings: How the “Some Evidence” Standard of Proof Violates the Constitution Due Process in Prison Disciplinary Hearings: How the “Some Evidence” Standard of Proof Violates the Constitution December 01, 2021 | 96 Wash. L. Rev. 1613 Emily Parker Abstract: Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for a fact finder to find an individual guilty with any amount of evidence, even when overwhelming evidence indicates they are innocent. Washington lacks a statutory and regulatory basis for the “some evidence” standard of proof. Although the Washington State Supreme Court seems to have endorsed its use, a closer look at the Court’s cases reveals confusion between the constitutionally required standard of proof and the standard for judicial review. In Superintendent v. Hill, the United States Supreme Court held that courts must generally review prison disciplinary findings for “some evidence.” Hill did not decide what standard of proof the Due Process Clause requires at the initial hearing. Still, subsequent Washington State cases have relied on Hill to justify the “some evidence” standard of proof. This Comment shows that this reliance is erroneous. Instead, courts should apply the foundational Mathews v. Eldridge due process analysis to determine the necessary standard of proof. In determining the necessary standard, this Comment demonstrates that using “some evidence” as the standard of proof does not meet minimum constitutional requirements. To protect the rights of incarcerated individuals, prison disciplinary hearings involving serious infractions should require the “preponderance of the evidence” standard of proof. This standard would allow cases to be correctly decided, and individuals would not be unjustly disciplined. View Article × |
Emily Parker | 96 Wash. L. Rev. 1613 |
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Externalities and the Common Owner Externalities and the Common Owner March 17, 2020 | 95 Wash. L. Rev. 1 Madison Condon Abstract: Due to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive incentives that arise when a firm’s largest shareholders own similarly sized stakes in the firm’s industry competitors. This Article expands the consideration of the effects of common ownership from the industry level to the market portfolio level and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change related activism of institutional investors, who have applied coordinated shareholder power to pressure fossil fuel producers into substantially reducing greenhouse gas emissions. View Article × |
Madison Condon | 95 Wash. L. Rev. 1 |
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The Dangers of Disclosure: How HIV Laws Harm Domestic Violence Survivors The Dangers of Disclosure: How HIV Laws Harm Domestic Violence Survivors March 17, 2020 | 95 Wash. L. Rev. 83 Courtney K. Cross Abstract: People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts—even acts that carry low to no risk of infection—can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created to combat the spread of the disease, they are ineffective at doing so. Instead, they threaten the safety and health of people living with HIV. This Article analyzes HIV laws through the lens of domestic violence and reveals that both compliance and failure to comply with these laws can endanger survivors of domestic violence. This previously ignored double bind is significant given the reciprocal relationship between HIV and domestic violence: people living with HIV are more likely to experience domestic violence, just as survivors of domestic violence experience higher rates of HIV. Yet nearly all state HIV laws fail to recognize this inextricable relationship and, in so doing, create additional, unwarranted dangers for many individuals living at the intersection of HIV and domestic violence. This Article exposes the pernicious shortsightedness of state HIV laws and proposes reforms that would better protect both individuals at risk of infection as well as those at risk of violence. |
Courtney K. Cross | 95 Wash. L. Rev. 83 |
Privacy as Safety
Privacy as SafetyMarch 17, 2020 | 95 Wash. L. Rev. 141 A. Michael Froomkin & Zak Colangelo Abstract: The idea that privacy makes you safer is unjustly neglected: public officials emphasize the dangers of privacy while contemporary privacy theorists acknowledge that privacy may have safety implications but hardly dwell on the point. We argue that this lack of emphasis is a substantive and strategic error and seek to rectify it. This refocusing is particularly timely given the proliferation of new and invasive technologies for the home and for consumer use more generally, not to mention surveillance technologies such as so-called smart cities. |
A. Michael Froomkin & Zak Colangelo | 95 Wash. L. Rev. 141 |
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Candidate Privacy Candidate Privacy March 17, 2020 | 95 Wash. L. Rev. 205 Rebecca Green Abstract: In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers’ concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a changing information architecture brought on by the rise of the internet and digital media that drastically alters how information about candidates is collected and circulated. The second is a shift in who runs for office. As women and minorities—targets of the worst forms of harassment—increasingly throw their hats in the ring, this Article argues that competing democratic values should challenge previous assumptions about candidate privacy. Far from suggesting easy answers, this Article offers a framework for courts to weigh candidate privacy interests in a more nuanced way, drawing on vetting principles for aspirants to other positions of public trust. While there are good reasons candidates should have far less privacy than ordinary citizens, the reflexive denial of candidate privacy must have its limits if we care about nourishing our evolving democracy. View Article × |
Rebecca Green | 95 Wash. L. Rev. 205 |
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The Story of a Class: Uses of Narrative in Public Interest Class Actions Before Certification The Story of a Class: Uses of Narrative in Public Interest Class Actions Before Certification March 17, 2020 | 95 Wash. L. Rev. 259 Anne E. Ralph Abstract: When litigants in public interest class actions tell their stories, the narratives can advance the law and influence public debate. But before class members’ stories can vindicate civil rights on the merits, plaintiffs must overcome the hurdle of class certification. |
Anne E. Ralph | 95 Wash. L. Rev. 259 |
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Getting Past Possession: Subsurface Property Disputes as Nuisances Getting Past Possession: Subsurface Property Disputes as Nuisances March 17, 2020 | 95 Wash. L. Rev. 315 Joseph A. Schremmer Abstract: Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature.
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Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable, and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance. This Article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this Article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracking, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and more efficiently allocate costs of subsurface activities. The Article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS. |
Joseph A. Schremmer | 95 Wash. L. Rev. 315 |
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The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective March 17, 2020 | 95 Wash. L. Rev. 377 Jonathan Todres & Daniela Villamizar Fink Abstract: In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And subsequent reports—from both the government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention are pronounced. The trauma that children have endured potentially has lifelong ramifications. This Article provides an indepth, children’s rights-based analysis of the Trump Administration’s family separation and child detention policies and actions. A children’s rights perspective offers several critical insights. First, children’s rights are rooted in a legal mandate. Second, examining the Trump Administration’s actions from a children’s rights perspective reveals the breadth of rights violations occurring. This more nuanced understanding of the events can help in devising appropriate strategies to respond to such violations. Third, a children’s rights perspective helps place the Trump Administration’s actions in their historical context to better understand the gravity of these actions. Children’s rights law is as close to universally accepted as any human rights law, and thus any departures from such widely embraced standards are particularly revealing. Finally, the authors discuss the implications of this children’s rights assessment, urging action on several fronts to address this harm and prevent violations of children’s rights in the future. View Article × |
Jonathan Todres & Daniela Villamizar Fink | 95 Wash. L. Rev. 377 |
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Limitations of Washington Evidence Rule 413 Limitations of Washington Evidence Rule 413 March 17, 2020 | 95 Wash. L. Rev. 429 Sarah Desautels Abstract: This Comment analyzes Washington State Evidence Rule 413 (ER 413). ER 413 renders evidence of the immigration status of criminal defendants, civil plaintiffs, and witnesses presumptively inadmissible at trial. The Washington State Supreme Court adopted ER 413 in September 2018. It is the first of its kind in the nation. ER 413 provides a clear, uniform rule limiting the use of immigration evidence, an area where prior caselaw had created uncertainty. However, ER 413 falls short of its goal of promoting access to justice and protecting immigrants from jury bias without a supporting system that addresses (1) the dangers of implicit bias for immigrant litigants and (2) an acute issue inhibiting access to justice—immigration arrests outside of local courthouses. This Comment recommends that all Washington state courts adopt implicit bias safeguards that focus on identifying and eradicating implicit biases stemming from immigration status. It further identifies Washington State Attorney General Bob Ferguson’s lawsuit against the federal government, challenging the arrests of noncitizens outside of courthouses by immigration officials, as a necessary prerequisite to the effectiveness of ER 413’s access to justice goals View Article × |
Sarah Desautels | 95 Wash. L. Rev. 429 |
The Liberty Impact of Gender
The Liberty Impact of GenderMarch 17, 2020 | 95 Wash. L. Rev. 459 Kingsly Alec McConnell Abstract: Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise children, and accurate gender markers protect the right to a common calling by shielding transsex people from employment discrimination and procedural barriers. This Comment argues that gender designations represent both a property right and a protected expression of speech. Government-issued gender designations, or gender markers, have taken on a special legal identity that is distinct from assigned or lived gender, and these markers frequently translate into discrete rights for transsex individuals. The Trump Administration’s policy not only upends traditional understandings of gender under state and federal law, but also attempts to dissuade transsex people from engaging in public life, and ultimately, existing in the world. Because transsex people have a liberty interest in maintaining an accurate gender designation, the Trump Administration’s redefinition is unconstitutional. View Article × |
Kingsly Alec McConnell | 95 Wash. L. Rev. 459 |
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The Substantial Impact Approach: Reviewing Policy Statements in Light of APA Finality The Substantial Impact Approach: Reviewing Policy Statements in Light of APA Finality March 17, 2020 | 95 Wash. L. Rev. 500 Emily Parsons Abstract: Federal agencies engage in a wide range of non-binding action, issuing guidance documents such as policy statements and interpretive rules. Although these guidance documents may have a substantial impact on industries or members of the public, courts often refuse to review their substance. The Administrative Procedure Act requires agency action to be “final” before courts can review it. The D.C. Circuit and the Ninth Circuit have taken conflicting and often messy approaches in determining whether interpretive rules and policy statements are final and thus reviewable. This Comment proposes a new approach: the substantial impact approach. Under this approach—repurposed from a rejected test for procedural sufficiency of guidance documents—courts could review a guidance document that has a substantial impact on affected parties. This Comment analyzes the 2017 Department of Homeland Security memorandum rescinding Deferred Action for Childhood Arrivals, highlighting it as an example of a subset of policy statements that should be reviewable under the proposed substantial impact approach. View Article × |
Emily Parsons | 95 Wash. L. Rev. 500 |
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Incarcerated Parents and Child Welfare in Washington Incarcerated Parents and Child Welfare in Washington March 17, 2020 | 95 Wash. L. Rev. 531 Sayer Rippey Abstract: From 2006 to 2016, 32,000 incarcerated parents in the United States permanently lost their parental rights without ever being accused of child abuse. Of these, approximately 5,000 lost their parental rights solely because of their incarceration. This “family separation crisis” followed on the heels of the Adoption and Safe Families Act (ASFA), a federal law which directs states to initiate parental termination proceedings against parents when their children have been in foster care for fifteen of the last twenty-two months. Some states, including Washington, attempted to mitigate ASFA’s devastating impact on incarcerated parents by adding exceptions for incarceration. This Comment explores the disparate effect of ASFA on families with incarcerated parents, and examines the structure and impact of Washington State’s incarceration exception to the termination requirement. It argues that more states should adopt exceptions for incarcerated parents, that Washington’s exception should go further to protect these parents, and that, ultimately, a wide variety of non-legislative changes are necessary to protect families before and during incarceration. View Article × |
Sayer Rippey | 95 Wash. L. Rev. 531 |
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Privacy Dependencies Privacy Dependencies June 01, 2020 | 95 Wash. L. Rev. 555 Solon Barocas & Karen Levy Abstract: This Article offers a comprehensive survey of privacy dependencies—the many ways that our privacy depends on the decisions and disclosures of other people. What we do and what we say can reveal as much about others as it does about ourselves, even when we don’t realize it or when we think we’re sharing information about ourselves alone. We identify three bases upon which our privacy can depend: our social ties, our similarities to others, and our differences from others. In a tie-based dependency, an observer learns about one person by virtue of her social relationships with others—family, friends, or other associates. In a similarity-based dependency, inferences about our unrevealed attributes are drawn from our similarities to others for whom that attribute is known. And in difference- based dependencies, revelations about ourselves demonstrate how we are different from others—by showing, for example, how we “break the mold” of normal behavior or establishing how we rank relative to others with respect to some desirable attribute. We elaborate how these dependencies operate, isolating the relevant mechanisms and providing concrete examples of each mechanism in practice, the values they implicate, and the legal and technical interventions that may be brought to bear on them. Our work adds to a growing chorus demonstrating that privacy is neither an individual choice nor an individual value— but it is the first to systematically demonstrate how different types of dependencies can raise very different normative concerns, implicate different areas of law, and create different challenges for regulation. View Article × |
Solon Barocas & Karen Levy | 95 Wash. L. Rev. 555 |
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Parens Patriae and the Disinherited Child Parens Patriae and the Disinherited Child June 01, 2020 | 95 Wash. L. Rev. 619 Michael J. Higdon Abstract: Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up reforms based largely on the two models currently employed by other countries: (1) the forced heirship approach, in which all children are entitled to a set percentage of their parent’s estate; and (2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the testator’s surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-à-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state’s inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts must refuse enforcement of testamentary schemes that disinherit children who fall into those categories if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is much more deferential to testamentary freedom. The limitations imposed by this proposal represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy. View Article × |
Michael J. Higdon | 95 Wash. L. Rev. 619 |
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Through the Wire Act Through the Wire Act June 01, 2020 | 95 Wash. L. Rev. 677 John T. Holden Abstract: Legalized sports gambling has become one of the hottest topics in state legislatures ever since the United States Supreme Court’s 2018 decision in Murphy v. National Collegiate Athletic Ass’n1 allowed states to begin legalizing the activity. As states began to offer sports wagering, gambling became front and center in the news and the Trump administration’s Justice Department took the opportunity to rewrite a 2011 Office of Legal Counsel opinion, expanding the scope of the most prominent federal anti-gambling statute. The re-interpretation of the scope of the Wire Act reversed the Department of Justice’s position that the statute only applied to interstate sports wagering, and instead incorporated all forms of interstate wagering. The new interpretation is exceptional because it follows years of failed legislative attempts to re-write the statute. The executive branch used this interpretation to circumvent the legislature and expand the scope of the statute. The nature of the Wire Act’s targeted activities is one of many questions surrounding a statute that was applied for decades with few questions. The rise of the internet has brought on many more questions regarding the scope of the Wire Act—questions that have become prescient in an era of expanded legal gambling. This Article analyzes the most significant questions regarding the application of the Wire Act and suggests that contrary to the Department of Justice’s 2018 opinion, the statute is intended to apply to a very small group of activities. View Article × |
John T. Holden | 95 Wash. L. Rev. 677 |
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Atoning for Dred Scott and Plessy While Substantially Abolishing the Death Penalty Atoning for Dred Scott and Plessy While Substantially Abolishing the Death Penalty June 01, 2020 | 95 Wash. L. Rev. 737 Scott W. Howe Abstract: Has the Supreme Court adequately atoned for Dred Scott and Plessy? A Court majority has never confessed and apologized for the horrors associated with those decisions. And the horrors are so great that Dred Scott and Plessy have become the anti-canon of constitutional law. Given the extraordinary circumstances surrounding the Court’s historical complicity in the brutal campaign against African Americans, this Article contends that the Court could appropriately do more to atone. The Article asserts that the Court could profitably pursue atonement while abolishing capital punishment for aggravated murder. The Article shows why substantial abolition of the capital sanction would constitute a relevant response to the Court’s past complicity in the long, violent campaign for white supremacy. The Article also explains why substantial abolition, with a confession and apology, would involve little social cost and could send a valuable message. As for how our racial history could help justify substantial abolition in the language of the Constitution, the Article proposes an approach suggested by decisions in which the Court has combined two or more clauses to justify an outcome that neither clause would authorize on its own. In the death-penalty context, the Court could aggregate the prohibition on cruel and unusual punishments and the command of equal protection. Under that approach, the Court need not find a national consensus against death-penalty systems, nor must it find purposeful discrimination. The Court could rely, instead, on the inability to refute that those systems are remnants of the judicially authorized pursuit of white supremacy. The nature of that conclusion would also distinguish death from other punishments and thereby solve some problems that the Court has identified with abolition using a single-clause methodology. The arguments for vigorous Supreme Court atonement and for limiting the death penalty connect, although they stand apart. The Court could look for a better context than the death penalty to apologize for Dred Scott and Plessy, but a better context is hard to fathom. Likewise, the Court could justify, without apology, restricting the penalty based on our judicially sanctioned quest for white supremacy, but an apology for Dred Scott and Plessy would add a healing message. The actions are synergistic. The Court could achieve something special through the mutually-reinforcing symbolism that could come with simultaneous restriction of the death sanction and robust atonement for Dred Scott and Plessy. View Article × |
Scott W. Howe | 95 Wash. L. Rev. 737 |
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The Eighth Amendment Power to Discriminate The Eighth Amendment Power to Discriminate June 01, 2020 | 95 Wash. L. Rev. 809 Kathryn E. Miller Abstract: For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.1 After decades of attempting to eliminate the requirement, conservative justices have recently employed a new tactic: extinction through expansion. By relying on the individualized sentencing requirement to discourage jury instructions that enhance consideration of mitigation evidence, these justices have stretched the doctrine well beyond its intended meaning. This broad interpretation renders individualized sentencing ephemeral to the point of insignificance, ensuring that the problems with capital sentencing will continue in the years to come. While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion. This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it. It proposes that states employ specific jury instructions that: (1) require jurors to consider certain types of evidence as legally mitigating; (2) address the historically racist application of the death penalty; and (3)permit unfettered discretion solely in the direction of leniency. Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing. View Article × |
Kathryn E. Miller | 95 Wash. L. Rev. 809 |
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Defective Patent Deference Defective Patent Deference June 01, 2020 | 95 Wash. L. Rev. 869 Tejas N. Narechania Abstract: The Supreme Court’s implicit deference to the Office of the Solicitor General in patent cases is well-documented: What the Solicitor General requests, the Solicitor General typically receives. But we know far less about how the Solicitor General arrives at these preferred policy positions, or why the Solicitor General comes to advocate for some outcomes over others. This is problematic. In practically every other corner of the administrative state, an agency earns substantial deference to its views only where robust procedural protections attend to the policymaking process, where the agency’s outcome reflects its substantive expertise, and where the agency may, through presidential removal and election, be held politically accountable for its policy choices. Not so in patent law. The Patent Office has never claimed to exercise any substantive rulemaking power. Meanwhile, the Solicitor General develops and advocates for patent policy outcomes, but behind closed doors, without deep internal expertise, and under the time constraints of appellate litigation. These shortcomings (among others) suggest that we should reexamine the Solicitor General’s influence over patent policy in favor of alternate interpretive practices that improve Executive Branch decisionmaking. And they counsel in favor of several reforms—most importantly, to the policymaking power of the Patent Office. View Article × |
Tejas N. Narechania | 95 Wash. L. Rev. 869 |
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The Regulation of Lawyers in Compliance The Regulation of Lawyers in Compliance June 01, 2020 | 95 Wash. L. Rev. 947 Jennifer M. Pacella Abstract: The field of compliance has exploded in interest, attention, and growth over recent years. It has emerged as a popular career path for those trained in the law, giving rise to an influx of job opportunities for new law school graduates and seasoned attorneys alike. Additionally, compliance has tightened the essential interplay between business and law. Numerous compliance officers hold J.D. degrees and many also serve simultaneously as both an organization’s chief compliance officer and general counsel, thereby muddying the lines between which service constitutes the “practice of law,” requiring adherence to professional rules of responsibility, or non-legal work, where such rules would typically not be applicable. This Article will analyze these important distinctions, as well as the lack of regulatory guidance for lawyers in the compliance function, by viewing the discussion largely through the lens of an often-unnoticed ethical rule—the American Bar Association’s Model Rule 5.7—which requires lawyers to comply with the full range of professional conduct rules even when they are providing a non-legal “law-related service.” This Article will argue that the compliance function is a near-precise fit for this rule and will propose reform to the current regulatory model to ensure that the interests of lawyers, as well as the recipients of their services, are protected to the most fruitful extent possible in today’s compliance-driven era. While placing this examination in the context of current scholarly debate that challenges traditional “zealous advocate” models of attorney representation, this Article will claim that, without adequate and clear regulatory reform to establish guidelines for behavior, lawyers in compliance functions risk heightened personal liability due to potential ethical violations from their respective jurisdictions of admission. View Article × |
Jennifer M. Pacella | 95 Wash. L. Rev. 947 |
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Rules Versus Standards: A Moral Inquiry into Washington's Character & Fitness Hearing Process Rules Versus Standards: A Moral Inquiry into Washington's Character & Fitness Hearing Process June 01, 2020 | 95 Wash. L. Rev. 997 Jennifer Aronson Abstract: Historically, moral character inquiries within the state bar admission process have led to the exclusion of diverse and important voices from the legal profession, both consequentially and at times by design. Washington does not keep statistics on the race, ethnicity, gender, or economic class of bar applicants who are referred to character and fitness hearings, nor on the outcomes of those hearings. Examining how implicit bias and disparate outcomes interact in other areas of discretionary adjudicative decision-making illustrates the potential impact that the character and fitness process has on underrepresented communities in the legal profession. In a criminal justice reform context, well-intended shifts from discretionary standards to bright-line rules have increased disparate outcomes. Yet a recent Washington State Supreme Court case, In re Bar Application of Simmons, shed light on the opaque, discretionary nature of the character and fitness hearing process and led many to call for such clarity through rulemaking. Taking a lesson from twentieth-century criminal justice reform movements, Washington should refrain from developing any immediate, bright-line rules. Instead, reforms should first focus on the collection and review of comprehensive data regarding which applicants get referred for hearings and what outcomes result. Data-driven reforms to discretionary processes have a better chance at avoiding unintended outcomes. In another recent Washington State Supreme Court case, State v. Gregory, the court relied on a study quantifying the “statistical significance of the racial patterns” to overturn the death penalty. The Gregory opinion highlights why citable data is often essential to successful advocacy. More data is necessary to illuminate how the system currently operates. However, there is enough scholarship to support making certain reforms to the process immediately, including consideration of financial and behavioral health records. This Comment is in conversation with current research regarding implicit bias in adjudicative processes. It opposes scholarship promoting further exclusion of bar applicants with prior convictions, or bright-line rules for admission absent supporting data. View Article × |
Jennifer Aronson | 95 Wash. L. Rev. 997 |
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Avoiding Responsibility: The Case for Amending the Duty to Disclose Prior Art in Patent Law Avoiding Responsibility: The Case for Amending the Duty to Disclose Prior Art in Patent Law June 01, 2020 | 95 Wash. L. Rev. 1031 John O. Curry Abstract: Federal regulation requires patent applicants in the United States to disclose to the United States Patent and Trademark Office (USPTO) a wide range of references that might be material to their invention’s patentability. Applicant disclosure of prior art currently plays a large role in the prosecution and litigation of patents. The effects are quite deleterious, resulting in the filing of unnecessary references that go unreviewed in the USPTO and providing plausible grounds for the assertion of inequitable conduct defenses in patent infringement actions. This Comment looks at the history of the laws that evolved into the codified duty to disclose prior art and finds that the historical rationales no longer justify such an imposition. It also examines several foreign jurisdictions that differ from the United States in their mandates to disclose prior art, ultimately recommending the adoption of the standard used by the European Patent Office as a way to resolve both the administrative and legal challenges posed by the current standard. View Article × |
John O. Curry | 95 Wash. L. Rev. 1031 |
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Providing a Meaningful Opportunity for Release: A Proposal for Improving Washington's Miller-Fix Providing a Meaningful Opportunity for Release: A Proposal for Improving Washington's Miller-Fix June 01, 2020 | 95 Wash. L. Rev. 1053 Maya L. Ramakrishnan Abstract: Miller v. Alabama set forth new constitutional requirements that necessitated changes in Washington State’s sentencing law for children. In response, the Washington legislature passed RCW 9.94A.730: a parole statute that presumptively releases children who committed crimes after they have served twenty years. Unless the parole board finds they are more likely than not to commit a future crime if released, the Miller-fix statute requires that eligible petitioners are released. The parole board has wide discretion in determining whether someone is more likely than not to commit a future crime because the statute provides no guidance about how to make this prediction. It is nearly impossible to determine what someone will do in the future, and justifications for continuing to incarcerate an individual convicted of a crime as a child after they have served a twenty-year sentence are limited. Therefore, this Comment argues that the Washington legislature should instead require that sentences for children are twenty years or shorter. View Article × |
Maya L. Ramakrishnan | 95 Wash. L. Rev. 1053 |
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Clarifying Washington's Approach to the Independent Duty Doctrine Clarifying Washington's Approach to the Independent Duty Doctrine June 01, 2020 | 95 Wash. L. Rev. 1091 Margaret Wykowski Abstract: When faced with limited or no recovery under contract law, resourceful lawyers often turn to tort law. The economic loss rule restricts this practice by barring recovery in tort for solely economic losses. However, what qualifies as “economic loss” is not always clear. In 2010, the Washington State Supreme Court announced it was clarifying the economic loss rule by adopting the independent duty doctrine. Rather than analyze the type of loss suffered, the independent duty doctrine determines whether a party owed a tort duty independent of the relevant contract, closely mirroring a traditional tort inquiry. When establishing the independent duty doctrine, the court left intact cases decided under the economic loss rule and the rule’s general role as “the boundary between torts and contract [law].” However, the very nature of these two rules conflict. Upholding both rules has led to bitterly split opinions from the Washington State Supreme Court and confusion among litigants and other courts. This Comment argues that the court’s construction of the independent duty doctrine generally, and its decision to maintain the economic loss rule’s theory and jurisprudence, has resulted in misapplication of the independent duty doctrine by litigants and within other courts. It proposes that the Washington State Supreme Court clarify the doctrine by abrogating the state’s economic loss rule jurisprudence and re-framing the independent duty doctrine analysis around when tort duties can be assumed in a contract. View Article × |
Margaret Wykowski | 95 Wash. L. Rev. 1091 |
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The Law of Blockchain
The Law of BlockchainOctober 01, 2020 | 95 Wash. L. Rev. 1117 Georgios Dimitropoulos AbstractBlockchain technology is a new general-purpose technology that poses significant challenges to the existing state of law, economy, and society. Blockchain has one feature that makes it even more distinctive than other disruptive technologies: it is, by nature and design, global and transnational. Moreover, blockchain operates based on its own rules and principles that have a law-like quality. What may be called the lex cryptographia of blockchain has been designed based on a rational choice vision of human behavior. Blockchain adopts a framing derived from neoclassical economics, and instantiates it in a new machinery that implements rational choice paradigms using blockchain in a semi-automatic way, across all spheres of life, and without regard to borders. Accordingly, a global law and crypto-economics movement is now emerging owing to the spread of blockchain. This Article suggests that such a rational choice paradigm is an insufficient foundation for the future development of blockchain. It seeks to develop a new understanding of blockchain and its regulation through code according to the emerging “law and political economy” framework. Blockchain is much more than a machine that enables the automation of transactions according to a rational choice framework. Blockchain should instead be understood as a technological infrastructure. Acknowledging the infrastructural dimension of blockchain technology may help identify a new role for the law in its interaction with blockchain, as well as for government in its interaction with the new technology. More precisely, identifying blockchain as an “infrastructural commons” helps us recognize that law and regulation should not be relegated to the role of merely facilitating the operation of the invisible hand of the market by and within blockchain, but should rather acquire more active roles, such as safeguarding access on non-discriminatory terms to users, on a model with net neutrality and other public utility safeguards. The Article closes by proposing a “law and political economy” framework for blockchain that is based on principles of publicness, trust, and interoperability. View Article × |
Georgios Dimitropoulos | 95 Wash. L. Rev. 1117 |
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Data Protection in Disarray Data Protection in Disarray October 01, 2020 | 95 Wash. L. Rev. 1193 Thomas D. Haley AbstractBusinesses routinely lose or misuse individuals’ private information, with results that can be devastating. Federal courts often leave those individuals without legal recourse by dismissing their lawsuits for lack of standing, even though plaintiffs in these cases provide stronger showings of harm than courts usually require. Using an original data set, this Article shows how standing analysis in these cases has gone awry and argues that the standing inquiry in today’s data-protection cases harms both public policy and standing doctrine. This Article makes three contributions to literatures in federal courts and privacy. First, it shows that current federal court practice too often allows data collectors to cause harm without penalty. Data collectors—from theme parks and grocery stores to Equifax and Google—routinely collect private information improperly and inadequately protect the data they collect. This Article unpacks the various ways federal courts get standing wrong in the lawsuits that follow, such as by focusing on the particular scraps of information collected or lost via data breach to find plaintiffs have not suffered an “injury in fact.” Second, this Article draws on an original data set of 217 federal data-protection decisions to demonstrate systemic pressures that lead federal courts to misapply standing doctrine in data-protection litigation. Existing scholarship focuses on analyzing a handful of leading appellate cases and therefore misses the full scope of federal courts’ seeming hostility toward data-protection lawsuits. Third, by bringing to light systemic issues that have not been considered in this context, this Article proposes changes to federal courts’ approach to standing in these cases that will help align the incentives and costs of data collection and help to develop a robust body of federal law on issues of data protection. View Article × |
Thomas D. Haley | 95 Wash. L. Rev. 1193 |
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Erie SLAPP Back Erie SLAPP Back October 01, 2020 | 95 Wash. L. Rev. 1253 Jack B. Harrison AbstractDozens of states have enacted anti-Strategic Lawsuits Against Public Participation (SLAPP) laws to counter SLAPP suits, or lawsuits filed to silence a defendant who has spoken out against a plaintiff. The primary goal of a SLAPP suit is not to win on the merits, but rather to discourage the defendant from exercising their right to free speech by threatening excessively expensive litigation. State anti-SLAPP laws provide for special motions to dismiss, discovery limitations, and fee shifting, all designed to allow a defendant to expeditiously dispose of the SLAPP suit before engaging in costly discovery. This Article discusses the development of state anti-SLAPP laws and the evolution of the Erie doctrine through the Shady Grove decision, ultimately examining how lower courts have struggled to make sense of Shady Grove in the context of state anti-SLAPP special motions to dismiss. This Article then discusses the various theoretical solutions that have been offered for this dilemma, concluding that the conflict between state anti-SLAPP laws and the Federal Rules of Civil Procedure is unavoidable and irreconcilable under the Rules Enabling Act and Erie and its progeny. Based on this analysis, this Article concludes that federal courts sitting in diversity cannot apply state anti-SLAPP laws. The only mechanism for accomplishing the specifically defined purpose of state anti-SLAPP laws in federal court is for the Congress to adopt a federal anti-SLAPP law that would supplement the operation of the Federal Rules of Civil Procedure. View Article × |
Jack B. Harrison | 95 Wash. L. Rev. 1253 |
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Distorted Drug Patents Distorted Drug Patents October 01, 2020 | 95 Wash. L. Rev. 1317 Erika Lietzan & Kristina M.L. Acri née Lybecker AbstractDrug patents are distorted. Unlike most other inventors, drug inventors must complete years of testing to the government’s specifications and seek government approval to commercialize their inventions. All the while, the patent term runs. When a drug inventor finally launches a medicine that embodies the invention, only a fraction of the patent life remains. And yet, conventional wisdom holds—and empirical studies show—that patent life is essential to innovation in the pharmaceutical industry, perhaps more so than any other inventive industry. Congress tried to address this in 1984, authorizing the Patent and Trademark Office (PTO) to “restore” a portion of the patent term lost to premarket testing. The PTO does not restore all of the lost time, though, which raises the question whether the U.S. legal system may steer researchers away from drugs that take a long time to develop. This Article focuses on that question. It examines every grant of patent term restoration for a new drug or biologic from the scheme’s 1984 enactment to April 1, 2018. Few scholars have considered patent term restoration from an empirical perspective, none has used a dataset of this size and scope, and none has addressed the questions this Article addresses. Two significant conclusions stand out. First, longer clinical programs lead to shorter effective patent life, even after the PTO has granted patent term restoration. The results are strongly statistically significant and contribute to a growing body of literature raising the alarm that the U.S. legal system may be systematically skewing drug research incentives away from the harder problems—such as a cure for Alzheimer’s Disease and interventions at the early stages of cancers. Second, Congress decided to allow drug companies to apply patent term restoration to continuation patents, specifically because this would increase the chances of reaching fourteen years of effective patent life. Ten years later Congress changed the way patent terms are calculated without considering the effect on patent term restoration. Selecting a continuation patent no longer has the same effect. Today a drug company is most likely to achieve the fourteen years of effective patent life by securing a new, original patent that issues late in clinical trials. Policymakers and scholars complain when companies secure these later- expiring patents, but the findings in this Article suggest those patents may be necessary to accomplish what Congress intended in 1984. View Article × |
Erika Lietzan & Kristina M.L. Acri née Lybecker | 95 Wash. L. Rev. 1317 |
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Seeking (Some) Climate Justice in State Tort Law Seeking (Some) Climate Justice in State Tort Law October 01, 2020 | 95 Wash. L. Rev. 1383 Karen C. Sokol AbstractOver the last decade, an increasing number of path-breaking cases have been filed throughout the world, seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the climate crisis. This Article focuses on an important subset of those cases—namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change. The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases into two “waves.” The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants’ response to the second-wave climate tort cases; namely, that the federal common law of nuisance preempts all the plaintiffs’ state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court case law is sparse and unclear. The Article identifies the doctrinal problem in the case law, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law in these cases. Finally, the Article offers a new perspective on why that is also the right result as a policy matter. The second-wave climate tort suits are part of a larger global movement of resorting to the courts to demand climate justice after decades of inaction by policymakers. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of current ones—including state tort law—to the fullest extent possible. View Article × |
Karen C. Sokol | 95 Wash. L. Rev. 1383 |
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Jury Nullification Instructions as Structural Error Jury Nullification Instructions as Structural Error October 01, 2020 | 95 Wash. L. Rev. 1441 Susan Yorke AbstractJury nullification is a legal problem child. Aberrant but built into the Constitution, rebellious but merciful, lawless but often just, it defies easy categorization. Courts have been reluctant to discuss this unruly character, preferring that it remain in the shadows. When federal and state laws diverge, however, the problem of nullification rears its head, sometimes prompting courts to undertake the delicate task of talking about the unmentionable. This Article examines what courts can say about nullification—and what should happen on appeal if they say too much. It is a basic tenet of criminal procedure that a trial court cannot direct a guilty verdict or punish jurors for failing to return one, regardless of the strength of the prosecution’s case. Yet when trial courts threaten juries with such improper punishment or suggest that juries lack the power to acquit, appellate courts have been loath to reverse the resulting convictions. Although some courts have acknowledged that such coercive anti-nullification instructions amount to constitutional error, they have subjected those errors to harmless error review. In doing so, courts have tended to downplay the significance of the error and focus on the strength of the prosecution’s case, resulting in circular reasoning that renders elusive any remedy for the violation. But coercive anti-nullification instructional error is uniquely ill-suited to harmless error analysis. Using the Supreme Court’s recent clarification of the structural error doctrine in Weaver v. Massachusetts and building upon the emerging scholarly recognition of the jury- trial right as primarily institutional, this Article argues that coercive anti-nullification instructions satisfy all three of the Supreme Court’s rationales for structural error. First, the jury-trial right implicated by the error protects institutional and community interests rather than the defendant’s interest in avoiding erroneous conviction. Second, the unique nature of nullification means that the error defies traditional approaches to measuring its effect on the verdict. And third, because the error does violence to some of the central purposes of trial by jury, it always results in fundamental unfairness. Error resulting from coercive anti- nullification instructions is therefore structural and should result in automatic reversal. View Article × |
Susan Yorke | 95 Wash. L. Rev. 1441 |
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License to Offend: How the NLRA Shields Perpetrators of Discrimination in the Workplace License to Offend: How the NLRA Shields Perpetrators of Discrimination in the Workplace October 01, 2020 | 95 Wash. L. Rev. 1493 Molly Gibbons AbstractCongress established the National Labor Relations Board (NLRB or the Board) to enforce the National Labor Relations Act (NLRA or the Act) and ensure fair labor practices in workplaces across the United States. The NLRA protects employees from discipline while engaging in union activity. Under the NLRA, employers and unions must collectively bargain in good faith. Either party may only walk away from the table when another party’s conduct makes good faith bargaining impossible. However, the NLRB’s determination of what conduct constitutes bad faith bargaining and protected union speech is inconsistent with federal anti- discrimination laws. This discrepancy means employers cannot take affirmative steps to prevent hostile work environments. This Comment proposes a new approach: the NLRB should harmonize its decisions delineating speech protected under the NLRA versus speech that may create a hostile work environment and thus subject the employer to further liability under federal anti-discrimination laws. Union speech or conduct that rises to the level of harassment under Title VII of the Civil Rights Act of 1964 (Title VII) should be considered outside the scope of the NLRA’s protections, even if it does not reach the current standard for bad faith bargaining or unprotected speech. This Comment argues that such harmonization should apply irrespective of whether the offensive conduct comes from an employee or nonemployee union member. View Article × |
Molly Gibbons | 95 Wash. L. Rev. 1493 |
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All Bets Are Off: Preempting Major League Baseball’s Monopoly on Sports Betting Data All Bets Are Off: Preempting Major League Baseball’s Monopoly on Sports Betting Data October 01, 2020 | 95 Wash. L. Rev. 1537 Beatrice Lucas AbstractMajor League Baseball is in the process of collectivizing data used in sports betting. This could be exempt from antitrust scrutiny if the conduct falls within the “business of baseball.” Such an exemption raises the question of whether collecting official league data is sufficiently attenuated from the “business of baseball” to be subject to antitrust law, and if so, whether MLB violates the Sherman Act by excluding competitors from the league data market. This Comment makes a two-fold argument. First, it argues that the “business of baseball” should be constrained to cover activities directly linked to putting on baseball games. Second, this Comment argues that the collectivization of official league data for sports betting is not within the “business of baseball,” and that MLB is potentially violating the Sherman Act for excluding competitors through anticompetitive means. The unique “business of baseball” exemption has existed for almost one hundred years without limit, but that does not mean professional baseball can restrain trade in every industry it deals. View Article × |
Beatrice Lucas | 95 Wash. L. Rev. 1537 |
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The Abandoned Wards of Admiralty: The Supreme Court’s Course Change on the Availability of Punitive Damages to Seamen in Unseaworthiness Claims The Abandoned Wards of Admiralty: The Supreme Court’s Course Change on the Availability of Punitive Damages to Seamen in Unseaworthiness Claims October 01, 2020 | 95 Wash. L. Rev. 1565 Hillary Smith Weise AbstractThis Comment compares Dutra Group v. Batterton and Tabingo v. American Triumph LLC, two significant but contradictory admiralty decisions on the availability of punitive damages in unseaworthiness claims. It argues that the Washington State Supreme Court’s decision in Tabingo—that punitive damages should be permissible in unseaworthiness claims—is far better from both policy and doctrinal standpoints. From a doctrinal perspective, maritime law has traditionally permitted punitive damages in admiralty cases. Therefore, it would have been more appropriate for the Court to adhere to the principle that it is better to allow a remedy in admiralty proceedings so long as an inflexible rule does not prohibit it. From a policy standpoint, employers do not require the same protections as seamen. This Comment also analyzes how the United States Supreme Court in Batterton confirmed its unwillingness to use its explicit grant of admiralty jurisdiction by rejecting an admiralty remedy because such remedy was not explicitly provided for by Congress. Batterton also reflects the Supreme Court’s shift from considering seamen the wards of admiralty to stating there is no longer any policy need to protect them. The Court abandoned the nearly 200-year-old determination for a weak policy argument with little explanation. The stark implication flowing from this decision is that a cost-benefit analysis for employers now makes it cheaper to kill seamen than to make them sick. View Article × |
Hillary Smith Weise | 95 Wash. L. Rev. 1565 |
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NotPetya, Not Warfare: Rethinking the Insurance War Exclusion in the Context of International Cyberattacks NotPetya, Not Warfare: Rethinking the Insurance War Exclusion in the Context of International Cyberattacks October 01, 2020 | 95 Wash. L. Rev. 1595 Katherine S. Wan AbstractWhen an insurer wants to avoid coverage of a specific type of loss, it must explicitly exclude the loss in its policy. The war exclusion is a typical exclusion found in insurance policies that excuses insurers from covering losses caused by war or warlike actions. Courts interpreting the exclusion have traditionally held that war must consist of hostilities between sovereign nations. Despite the rise of state-sponsored cyberattacks, the United States has been hesitant to officially declare war in response. Even still, insurers argue that their war exclusions should apply to these new cyber losses. Courts are now tasked with reanalyzing the war exclusion in the context of the rise of cyberwarfare. This Comment examines the history of the war exclusion, the policy reasons behind burden allocation, and where cyberattacks fall on the spectrum between war and terrorism. Insurers should not be able to use the war exclusion to escape liability for state-sponsored cyberattacks. View Article × |
Katherine S. Wan | 95 Wash. L. Rev. 1595 |
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Predictive Facts
Predictive FactsDecember 01, 2020 | 95 Wash. L. Rev. 1621 Brent Ferguson AbstractA substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations. Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact—facts not specific to a certain plaintiff or defendant but concerning the world more generally, such as the finding in Brown v. Board of Education that school segregation caused psychological harm to children. And after scholars began to recognize how important such factual conclusions were, courts increased their reliance on empirical evidence when declaring legislative facts. But this Article contends that the Supreme Court has often circumvented the pressure to rely on evidence by recharacterizing its factual conclusions as predictions. Thus, for instance, rather than concluding that a longstanding law regulating newspapers has discouraged political discussion, the Court has simply asserted that the law would discourage such discussion if it were upheld. And rather than concluding that minority viewpoints are sufficiently represented on juries even in states with no jury unanimity requirement, the Court has predicted that minority viewpoints will be heard even without the unanimity rule. By deciding cases in this manner, the Court has made predictions that operate as if they are legislative facts even when it performs no factual inquiry. The Article first looks closely at a set of cases in which such predictive factfinding has occurred, including those in which a law has existed for decades, but the Court has not asked whether there is existing evidence that the predicted outcome has happened. While conceding that predictive judgments are necessary in many cases, the Article nonetheless insists that the Court should approach those judgments cautiously. That is because the Court’s predictions are frequently incorrect, and they can create factual precedent by enshrining erroneous conclusions into law that lower courts adhere to even if facts change or the prediction is proven incorrect. Further, making unsupported predictions threatens the adversarial system because predictions are often made by amici or judges rather than the parties to a case. Finally, the prevalence of unsupported predictions may be undermining the judiciary’s legitimacy. The Court can start to remedy the problem by recognizing its existence and avoiding unnecessary predictions. When predictions are unavoidable, the Supreme Court and lower courts can try to improve the accuracy of their forecasts, consider remanding the case for more factual development, or issue a provisional decision that would encourage future litigation if a prediction turns out to be incorrect. View Article × |
Brent Ferguson | 95 Wash. L. Rev. 1621 |
Restoring Reasonableness to Workplace Religious Accommodations
Restoring Reasonableness to Workplace Religious AccommodationsDecember 01, 2020 | 95 Wash. L. Rev. 1673 Dallan F. Flake AbstractWhen Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship to their business, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read reasonableness out of the accommodation requirement, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer undue hardship, by setting the bar for reasonableness so low it is practically meaningless, or by ignoring the requirement altogether. Consequently, employers today have near carte blanche over whether and how to provide religious accommodations—a power imbalance that often forces employees into the precise dilemma from which Congress sought to protect them. This Article argues for the restoration of employees’ right to reasonable religious accommodations. It does so by asserting that reasonableness under Title VII is a standalone requirement, separate and distinct from undue hardship, that must be evaluated from the employee’s perspective. An accommodation should be deemed reasonable to the employee only if it (1) fully eliminates the conflict between the employee’s job and religion, (2) does not cause the employee to suffer an adverse employment action, and (3) avoids unnecessarily disadvantaging the employee’s terms or conditions of employment. This conceptualization of reasonableness aligns with Congress’s intent and, if adopted, would help level the playing field between employers and employees in this increasingly critical area of law. View Article × |
Dallan F. Flake | 95 Wash. L. Rev. 1673 |
Suspects, Cars & Police Dogs: A Complicated Relationship
Suspects, Cars & Police Dogs: A Complicated RelationshipDecember 01, 2020 | 95 Wash. L. Rev. 1725 Brian R. Gallini AbstractOfficers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more. Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the probable cause associated with the automobile exception to warrantlessly search vehicle occupants or, alternatively, warrantlessly arrest vehicle occupants. Specifically, this Article identifies those courts that interpret the automobile exception to additionally authorize two overarching categories of warrantless investigative activity: (1) searching vehicle occupants, and (2) arresting vehicle occupants. Each category, in the order presented by this Article, progressively unmoors the automobile exception from its constitutional foundation by broadly expanding the probable cause standard necessary to search a vehicle to permit further warrantless investigation. In response, this Article asserts that the probable cause associated with the automobile exception is limited to searching cars and does not justify searching people—much less seizing people. Those investigative actions, the Article concludes, each require an independent exception to the warrant requirement supported by separate probable cause. View Article × |
Brian R. Gallini | 95 Wash. L. Rev. 1725 |
Super-Statutory Contracting
Super-Statutory ContractingDecember 01, 2020 | 95 Wash. L. Rev. 1783 Kristelia A. García AbstractThe conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on property entitlements and private ordering in the intellectual property context. While law and economics scholars have long grappled with the question of whether and when property rules or liability rules are preferable, they have traditionally ignored a key lever: “perceived control,” or a rights holder’s impression of their ability to grant or withhold permission to use their work, and/or to name their price for such use. In addition to proposing a recalibration of the relative importance of consolidation, transaction costs, defaults, and damages, this Article identifies and describes perceived control as an essential factor in the licensing enterprise. This has significant implications for legislators and policymakers seeking to better align incentives between licensors and licensees, and for administrators tasked with term and rate setting. View Article × |
Kristelia A. García | 95 Wash. L. Rev. 1783 |
Unregistered Patents
Unregistered PatentsDecember 01, 2020 | 95 Wash. L. Rev. 1835 Miriam Marcowitz-Britton & Emily Michiko Morris AbstractAlthough all should be treated equally under the law, patent law has long been known to favor some less than others. Patentable technology is highly heterogeneous, covering everything from minute improvements in electronics to pioneering new artificial organs, but patent protection itself is purely a one-size-fits-all system. Patents thus overreward some while underrewarding others. On the one hand, patents overreward low-investment, low-value inventions by granting them the same twenty-year term of protection as those that required much higher investments and yield much higher social value. The resulting glut of low-quality patents has contributed greatly to the “patent crisis” of opportunistic “patent trolls,” heightened transaction costs, and costly litigation that have ultimately stalled innovation. On the other hand, patents also underreward in two significant ways. First, patents often fail to give some high-investment, high-value inventions enough protection. Second, many inventors are shut out from patent protection altogether if they lack the resources necessary to navigate the patent system’s costly, complex, and frequently biased examination process. This latter phenomenon disproportionately affects female and minority inventors, among others, thereby creating significant distributive effects. This Article argues that both of these effects—the overprotection of low-value inventions and the underprotection of inventions by women and minorities—could be alleviated by altering one particular but seldom-appreciated aspect of the patent system’s one-size-fits-all approach: its registration-only design. Copyright and trademark law allow for both registered and unregistered rights, but the patent system grants rights only to those who register their inventions and undergo subsequent examination. If the patent system were to follow the two-tiered approach of copyright and trademark law, however, and implement a regime of automatic but very limited unregistered rights in addition to registered rights, it could help address both problems. First, providing a much lower-cost alternative for obtaining protection, such a two-tiered regime could, with varying degrees of aggressiveness, channel low-investment, low-value inventions away from the system-clogging overprotections of the full, twenty-year, broad rights currently granted to registered patents. Second, as the authors of this Article have previously argued, by providing automatic rights without having to go through the resource-intensive registration and examination process, unregistered patent protection could help women and other disadvantaged inventors gain greater access to patent protections. Maintaining a two-tiered regime of both registered and unregistered patent rights thus offers a promising way to mitigate the inefficiencies of the current system by attenuating certain aspects of the current patent crisis while promoting a more egalitarian playing field for inventors. View Article × |
Miriam Marcowitz-Britton & Emily Michiko Morris | 95 Wash. L. Rev. 1835 |
Protecting Protected Activity
Protecting Protected ActivityDecember 01, 2020 | 95 Wash. L. Rev. 1891 Daiquiri J. Steele AbstractThe United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect. While legal scholars have paid much attention to the establishment of a but-for causation requirement in retaliation claims brought under employment discrimination statutes, they have paid less attention to other workplace statutes. This Article focuses on the transference of a but-for causation requirement to cases involving retaliation under minimum labor standards statutes. The Article critiques judicial application of the but-for causation standard by explaining the inconsistent outcomes that may result for similarly situated plaintiffs, by critiquing the judiciary’s reliance on a purely private law, negligence-based model rather than appreciating the role of minimum labor standards statutes as public law, and by demonstrating how application of traditional canons of statutory interpretation support a causation standard lower than but-for causation. To remedy these problems, the Article suggests that courts should allow the common law tort of wrongful discharge in violation of public policy—a tort that addresses the intersection of public law and private law—to inform its interpretation of employment retaliation statutes generally and minimum labor standards legislation in particular. View Article × |
Daiquiri J. Steele | 95 Wash. L. Rev. 1891 |
Never Mistake Law for Justice: Releasing Indigent Defendants from Legal Purgatory
Never Mistake Law for Justice: Releasing Indigent Defendants from Legal PurgatoryDecember 01, 2020 | 95 Wash. L. Rev. 1953 R.K. Brinkmann AbstractWashington courts impose two mandatory legal financial obligations (LFOs) on almost anyone who pleads guilty to or is convicted of a crime: a $100 DNA sample fee and a crime victim penalty assessment of $250 for misdemeanors and $500 for felonies. These fines run afoul of the Social Security Act, which bars attachment of Social Security benefits to pay debts, including LFOs. As a result, defendants whose sole source of income is Social Security benefits are not obligated to pay their mandatory LFOs. But such defendants cannot obtain certificates of discharge to clear their conviction records and thus complete their reintegration into society. The Supreme Court of Washington recently denied review of State v. Conway, in which a disabled Social Security recipient petitioned for remission of her mandatory LFOs. The decision to not hear Conway’s case leaves impoverished Social Security recipients in a legal purgatory where they do not have to pay their LFOs but are simultaneously unable to discharge their criminal records. To correct this injustice, Washington should either bar courts from imposing any LFOs on defendants who are indigent or allow such defendants to petition for remission of mandatory LFOs, thereby freeing people such as Ms. Conway from a lifelong purgatory of legal debt. View Article × |
R.K. Brinkmann | 95 Wash. L. Rev. 1953 |
Teamwork or Collusion? Changing Antitrust Law to Permit Corporate Action on Climate Change
Teamwork or Collusion? Changing Antitrust Law to Permit Corporate Action on Climate ChangeDecember 01, 2020 | 95 Wash. L. Rev. 1989 Dailey C. Koga AbstractIn an era of apprehension about climate change and the future of our planet, private companies are increasingly recognizing their role in increasing sustainability and lowering carbon emissions. To address this growing concern, some industry leaders are taking unilateral action to implement sustainable practices, but other companies have made agreements to fight emissions together. However, the Sherman Antitrust Act forbids agreements in restraint of trade. Further, antitrust law traditionally has refused to recognize ethical or moral justifications as legitimate reasons to permit anticompetitive agreements. As society’s concern for the planet grows and elected leaders move slower than needed to address climate problems, private sector actions take on a special urgency—especially given the massive carbon emissions stemming from corporate activities. This Comment reexamines the constructs and restrictions of antitrust law and identifies a solution that will allow companies to enter agreements aimed at addressing climate change while still upholding antitrust law’s primary goal: consumer welfare. Specifically, this Comment proposes an exemption to antitrust law for agreements addressing climate change based on new Dutch guidelines and also provides a framework for companies to combat antitrust challenges to sustainability agreements absent an explicit exemption. View Article × |
Dailey C. Koga | 95 Wash. L. Rev. 1989 |
Sonograms and Speech: Informed Consent, Professional Speech, and Physicians' First Amendment Rights
Sonograms and Speech: Informed Consent, Professional Speech, and Physicians' First Amendment RightsJanuary 01, 2021 | 95 Wash. L. Rev. 2027 Oliana Luke AbstractAbortion is an extremely divisive topic that has caused waves of litigation. The right to access abortion has traditionally been challenged based on due process, equal protection, and privacy grounds. However, in a more recent string of cases, physicians have been challenging laws that require the physician to narrate an ultrasound before an abortion as an abridgment of their First Amendment rights. These cases require courts to balance the government’s ability to reasonably regulate a physician through professional licensing with the physician’s First Amendment protections against government-compelled speech. This Comment argues that, to balance these ideals and survive First Amendment scrutiny, mandatory ultrasound laws must include exceptions for therapeutic privilege and patient waiver. These exceptions, grounded in the established medical practice of informed consent, apply when certain information would be more harmful than beneficial to a patient. Statutes that do not include these exceptions accordingly do not comport with First Amendment protections against compelled speech. View Article × |
Oliana Luke | 95 Wash. L. Rev. 2027 |
The Thickness of Blood: Article I, Section 7, Law Enforcement, and Commercial DNA Databases
The Thickness of Blood: Article I, Section 7, Law Enforcement, and Commercial DNA DatabasesDecember 01, 2020 | 95 Wash. L. Rev. 2057 Hannah Parman AbstractLaw enforcement agencies increasingly use online commercial and open source DNA databases to identify suspects in cases that have long since gone cold. By uploading crime scene DNA to one of these websites, investigators can find family members who have used the website and build a family tree leading back to the owner of the original DNA. This is called “familial DNA searching.” The highest profile use of this investigative method to date occurred in California, but law enforcement in Washington State has been quick to begin utilizing the method as well. However, article I, section 7 of the Washington Constitution provides an enhanced privacy right to Washington residents when compared to the United States Constitution. This privacy right, which protects citizens’ private affairs from governmental intrusion without a warrant, is likely violated by law enforcement use of these databases in this manner. Washington courts should and will probably conclude that this investigative technique seriously threatens this crucial constitutional right. However, the Washington legislature should not wait for the courts to weigh in. Instead, lawmakers should pass legislation to ensure that this violation of citizens’ privacy is prohibited. View Article × |
Hannah Parman | 95 Wash. L. Rev. 2057 |
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Taxing Selling Partners Taxing Selling Partners March 31, 2019 | 94 Wash. L. Rev. 1 Emily Cauble Abstract: When a partner sells a partnership interest, the resulting gain or loss is treated as |
Emily Cauble | 94 Wash. L. Rev. 1 |
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Crashworthy Code Crashworthy Code March 31, 2019 | 94 Wash. L. Rev. 39 Bryan H. Choi 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. |
Bryan H. Choi | 94 Wash. L. Rev. 39 |
Patent Law and the Emigration of Innovation
Patent Law and the Emigration of InnovationMarch 31, 2019 | 94 Wash. L. Rev. 119 Gregory Day & Steven Udick 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. |
Gregory Day & Steven Udick | 94 Wash. L. Rev. 119 |
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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 Kati L. Griffith 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. View Article × |
Kati L. Griffith | 94 Wash. L. Rev. 171 |
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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 Catherine A. Hardee 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. |
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 Ned Snow 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. |
Ned Snow | 94 Wash. L. Rev. 275 |
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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 Jane K. Stoever 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. |
Jane K. Stoever | 94 Wash. L. Rev. 333 |
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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 Brittany Adams 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. |
Brittany Adams | 94 Wash. L. Rev. 401 |
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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 Alex Avakiantz 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. |
Alex Avakiantz | 94 Wash. L. Rev. 453 |
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What Do You Know? Discovering Document Compilations in 30(b)(6) Depositions What Do You Know? Discovering Document Compilations in 30(b)(6) Depositions March 31, 2019 | 94 Wash. L. Rev. 481 Sara Leonetti 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. |
Sara Leonetti | 94 Wash. L. Rev. 481 |
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Some Kind of Hearing Officer Some Kind of Hearing Officer June 01, 2019 | 94 Wash. L. Rev. 515 Kent H. Barnett Abstract: In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts and agencies should respond when the Due Process Clause required—in the U.S. Supreme Court’s exceedingly vague words—“some kind of hearing.” That phrase led to the familiar Mathews v. Eldridge balancing test, under which courts weigh three factors to determine how much process or formality is due. But the U.S. Supreme Court has never applied Mathews to another, often ignored, facet of due process: the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not only “some kind of hearing” but also some kind of hearing officer. Scholars, Congress, and even federal agencies have largely ignored so-called “informal” agency hearings and the hearing officers who preside over them, despite their large number and significance. Unlike well-known administrative law judges, the lack of uniform treatment of and data on these federal hearing officers renders it difficult to monitor, compare, and improve the systemic design and fairness of informal hearings. To better understand this “hidden judiciary,” this Article first reports, based on rare access to agencies, the most comprehensive empirical data assembled on those adjudicators’ independence. The data confirm the significant variety of federal hearing officers and the lack of uniform impartiality protections. To improve data collection, transparency, and salience of these hearing officers, this Article proposes a disclosure framework—appropriated from consumer contexts—to detect, compare, and improve prophylaxes to protect hearing officers from improper agency influence. View Article × |
Kent H. Barnett | 94 Wash. L. Rev. 515 |
Savage Inequalities
Savage InequalitiesJune 30, 2019 | 94 Wash. L. Rev. 583 Bethany R. Berger Abstract: Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest. These attacks have gained strength from a modern movement challenging many claims by disadvantaged groups as unfair special rights. In American Indian law and policy, however, such attacks have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination—all were justified, in part, as necessary to achieve individual Indian equality. The results of these policies, justified as equalizing the savage, are now recognized as savage themselves, impoverishing Native people and denying them fundamental rights. Many, including some tribal advocates, respond to equality-based attacks by arguing that sovereignty, cultural difference, or some other value trumps the value of equality in Indian law and policy. This Article, in contrast, reveals the egalitarian roots of demands for tribal rights. It argues that such rights are in fact demands to recognize the equality of tribes as governments, so the proper comparison is to rights of other sovereign groups. This governmental equality yardstick, moreover, has an even older historical pedigree and has repeatedly triumphed when U.S. policy bent toward justice. The governmental rubric does not lead to an easy metric for equality claims—tribal nations and their people are far too entwined with non-Native governments and communities for that. Additional principles, including individual equality, the history and context of modern disputes, and the impact of particular measures on the most vulnerable, are relevant as well. To show how these principles apply, the Article concludes by examining modern conflicts, including those over the Indian Child Welfare Act, Cherokee freedmen citizenship, and off-reservation fishing rights. View Article × |
Bethany R. Berger | 94 Wash. L. Rev. 583 |
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Backdoor Balancing Backdoor Balancing June 30, 2019 | 94 Wash. L. Rev. 645 Elizabeth Earle Beske Abstract: The U.S. Supreme Court has employed various mechanisms to blunt the systemic impact of legal change. The Warren Court balanced the interests advanced by new rules against the disruption of their retroactive application and frequently limited new rules to prospective effect. The Rehnquist Court decisively rejected this approach in the mid-1990s and committed itself to full adjudicative retroactivity as to pending cases. This Article argues that, although the Court slammed a door, it subsequently opened a window. The Court has spent the intervening decades devising ostensibly independent and unrelated doctrines to mitigate disruption. Despite the Rehnquist Court’s insistence that these doctrines do not relate to retroactivity, they reflect the same balance and, in almost every case, yield the same results as Warren-era balancing. This Article makes the descriptive case that the balancing of interests has survived intact and the normative case that finding a mechanism for softening the blow of legal change promotes respect for existing rules and the Court’s institutional legitimacy. Finally, this Article explores how the Court’s sub silentio balancing is likely to play out in the next big retroactivity challenge, the Appointments Clause context post-Lucia v. SEC. View Article × |
Elizabeth Earle Beske | 94 Wash. L. Rev. 645 |
Global Rate Setting: A Solution for Standards-Essential Patents?
Global Rate Setting: A Solution for Standards-Essential Patents?June 30, 2019 | 94 Wash. L. Rev. 701 Jorge L. Contreras Abstract: The commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable, and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out arise with increasing frequency, spurring competition authorities to investigate and intervene in private standardsetting. And litigation regarding compliance with FRAND commitments has led courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different methodologies and doctrinal approaches. The issues affecting the FRAND licensing system can be summarized as deficiencies in transparency, consistency, and comprehensiveness. Together, these issues reduce the overall fairness and efficiency of the system and result in excess administrative and transactional costs. This Article lays out a roadmap for the establishment of a global FRAND rate-setting tribunal that promotes the tripartite goals of transparency, consistency, and comprehensiveness by determining the aggregate value of patents covering a particular standard and allocating that value among individual patents and patent holders. This tribunal is modeled on the U.S. Copyright Royalty Board and similar rate-setting agencies, though it is envisioned not as a governmental body but as an international non-governmental organization. Such a tribunal should bring greater predictability and stability to the technology development ecosystem while reducing inefficient litigation. View Article × |
Jorge L. Contreras | 94 Wash. L. Rev. 701 |
Regulating Wage Theft
Regulating Wage TheftJune 30, 2019 | 94 Wash. L. Rev. 759 Jennifer J. Lee & Annie Smith Abstract: Wage theft costs workers billions of dollars each year. During a time when the federal government is rolling back workers’ rights, it is essential to consider how state and local laws can address the problem. As this Article explains, the pernicious practice of wage theft seemingly continues unabated, despite a recent wave of state and local laws to curtail it. This Article provides the first comprehensive analysis of state and local anti-wage theft laws. Through a compilation of 141 state and local anti-wage theft laws enacted over the past decade, this Article offers an original typology of the most common anti-wage theft regulatory strategies. An evaluation of these laws shows that they are unlikely to meaningfully reduce wage theft. Specifically, the typology reveals that many of the most popular anti-wage theft strategies involve authorizing worker complaints, creating or enhancing penalties, or mandating employers to disclose information to workers about their wage-related rights. Lessons learned about these conventional regulatory strategies from other contexts raise serious questions about whether these state and local laws can be successful. Rather than concede defeat, this Article contends that there are useful insights to be drawn from the typology and analysis. It concludes by recognizing promising regulatory innovations, identifying new collaborative approaches to enhance agency enforcement, and looking beyond regulation to nongovernmental strategies. View Article × |
Jennifer J. Lee & Annie Smith | 94 Wash. L. Rev. 759 |
Effective Corporate Compliance: A Holistic Approach for the SEC and the DOJ
Effective Corporate Compliance: A Holistic Approach for the SEC and the DOJJanuary 01, 2019 | 94 Wash. L. Rev. 851 Serena Hamann Abstract: Today, most global corporations claim to have effective compliance programs that ensure and monitor their compliance with all state, federal, and even international requirements. A growing body of literature and regulatory activity indicates that truly effective compliance programs must incorporate all of the “Seven Elements of an Effective Compliance Program” contained in the Federal Sentencing Guidelines. Despite these Guidelines and growing industry and regulatory interest in effective compliance, noncompliance continues, and many companies run into trouble when noncompliance brings their actions to the attention of the SEC and the DOJ. In turn, the SEC and the DOJ struggle to encourage effective compliance programs within these noncompliant companies and in the wider corporate community. This Comment proposes that the SEC and the DOJ should take a more integrated and holistic approach to compliance by regularly and publicly incorporating all of the elements in the Guidelines into deferred and non-prosecution agreements and penalty settlements. The agencies should also consider greater use of independent monitorships to ensure effective compliance. View Article × |
Serena Hamann | 94 Wash. L. Rev. 851 |
Respecting the Right to Research: Proxy Consent and Subject Assent in Alzheimer's Disease Clinical Trials
Respecting the Right to Research: Proxy Consent and Subject Assent in Alzheimer's Disease Clinical TrialsJune 30, 2019 | 94 Wash. L. Rev. 887 Mikaela L.J. Louie Abstract: Alzheimer’s Disease is the sixth-leading cause of death in the United States and the only disease in the top ten causes of death with no prevention, treatment, or cure. To find any meaningful treatment or cure, researchers must conduct clinical trials on subjects with Alzheimer’s Disease. Subjects with Alzheimer’s Disease, however, generally lack legal capacity to consent to research due to diminished cognition. While informed consent standards for individuals who lack capacity are well settled in the medical treatment context, such standards are much less clear in the research context. A patchwork of legal and regulatory guidance addresses this issue, but no uniform framework exists. In January 2017, the federal government responded to the problem of unclear proxy consent standards by updating the Common Rule, which regulates human subjects research. Attempting to clarify prior vagueness, the regulation extended existing laws and policies on proxy consent in clinical treatment to the research context. While this was a welcome change, state laws and institutional policies remain inconsistent. Therefore, states should affirmatively enact legislation to ensure inclusion for all participants in medical research. Practically, this may be as simple as amending existing health care surrogate decisionmaking statutes—allowing proxy consent and substituted judgment in the research context explicitly. Additionally, federal regulators, Institutional Review Boards, and researchers should consider establishing an assent and dissent standard for research subjects who lack capacity, specifically in Alzheimer’s Disease clinical trials. View Article × |
Mikaela L.J. Louie | 94 Wash. L. Rev. 887 |
Invalid Harms: Improper Use of the Administrative Procedure Act's Good Cause Exemption
Invalid Harms: Improper Use of the Administrative Procedure Act's Good Cause ExemptionJune 30, 2019 | 94 Wash. L. Rev. 927 Miriam R. Stiefel Abstract: On October 13, 2017, the U.S. Department of Health & Human Services, U.S. Department of Treasury, and U.S. Department of Labor published two nearly identical interim final rules in the Federal Register. To do so, the agencies invoked the Administrative Procedure Act’s good cause exemption, permitting the rules to bypass prepromulgation notice and comment rulemaking requirements. The interim final rules allowed employers and insurers that provide group healthcare coverage under the Affordable Care Act to seek constitutional and moral exemptions—specifically for contraceptives and other preventive health services coverage. Using the two 2017 interim final rules as an illustration, this Comment considers whether constitutional and moral objections should qualify as valid reasons for administrative agencies to invoke the Administrative Procedure Act’s good cause exemption, ultimately arguing they should not. If valid, this use of constitutional and moral objections would broaden administrative agencies’ ability to bypass notice and comment rulemaking procedures, thereby delegitimizing the rulemaking processes and undercutting opportunities for public participation. View Article × |
Miriam R. Stiefel | 94 Wash. L. Rev. 927 |
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Be Careful What You Wish for: Private Political Parties, Public Primaries, and State Constitutional Restrictions Be Careful What You Wish for: Private Political Parties, Public Primaries, and State Constitutional Restrictions June 30, 2019 | 94 Wash. L. Rev. 823 Hugh D. Spitzer Abstract: Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This Essay focuses on the history of Washington State’s “direct primary” and “blanket primary” systems, the repeated lawsuits challenging them, and the freedom of association doctrine that propelled the blanket primary’s 2004 demise. It then recounts the blowback from Washington voters, who enacted a “top two” primary system that sidelined the political parties by sending the two highest vote-getters to the general election regardless of political affiliation. It asserts that remaining aspects of Washington’s election system might violate the State’s own constitution, and that things could get worse than ever for the parties, perhaps disrupting precinct officer elections and even the state’s presidential primary. How did the political parties wind up at odds with their own voters, with an outcome opposite to what they intended? This Essay suggests that the answer lies in a web of conflicts: between litigation and political strategies; between the federal and state constitutions; and between the First Amendment’s protections of freedom of association, the late nineteenth century populist constitutional ban on public assistance to private entities, and the early twentieth century progressive goal of forcing private political parties to open their processes to the voting public. It concludes that long-term litigation strategies to address political issues can fail to achieve their objectives when those lawsuits overlook historical policy choices and ignore popular sentiments entrenched in the national and state constitutions. View Article × |
Hugh D. Spitzer | 94 Wash. L. Rev. 823 |
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The Return of the Technical McDonnell Douglas Paradigm The Return of the Technical McDonnell Douglas Paradigm October 31, 2019 | 94 Wash. L. Rev. 967 Katie Eyer Abstract: For many anti-discrimination plaintiffs, the McDonnell Douglas paradigm will determine the success or failure of their claims. And yet, for decades, most lower courts have applied a technical version of McDonnell Douglas—under which plaintiffs invariably lose. Thus, instead of asking the factual question of whether the defendant’s action was “because of” protected class status, the lower courts rely on a host of technical rules to dismiss even factually strong anti-discrimination claims. |
Katie Eyer | 94 Wash. L. Rev. 967 |
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Copyright's Market Gibberish Copyright's Market Gibberish October 31, 2019 | 94 Wash. L. Rev. 1019 Andrew Gilden Abstract: There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests—a practice this Article names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. |
Andrew Gilden | 94 Wash. L. Rev. 1019 |
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No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes October 31, 2019 | 94 Wash. L. Rev. 1085 Eli Greenbaum Abstract: Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the costs of centralizing FRAND disputes are high. Rather, absent other agreement between the parties, FRAND disputes should be resolved through the ordinary territorial structures of patent law, and attempts to simplify these disputes should focus on procedural and substantive coordination across jurisdictions. View Article × |
Eli Greenbaum | 94 Wash. L. Rev. 1085 |
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Public or Private Venture Capital? Public or Private Venture Capital? October 31, 2019 | 94 Wash. L. Rev. 1137 Darian M. Ibrahim Abstract: The United States has an unparalleled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible. |
Darian M. Ibrahim | 94 Wash. L. Rev. 1137 |
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Permissive Certificates: Collectors of Art as Collectors of Permissions Permissive Certificates: Collectors of Art as Collectors of Permissions October 31, 2019 | 94 Wash. L. Rev. 1175 Peter J. Karol Abstract: Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But rarely, if ever, have they been approached as legal instruments. |
Peter J. Karol | 94 Wash. L. Rev. 1175 |
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Why Settle for Less? Improving Settlement Conferences in Federal Court Why Settle for Less? Improving Settlement Conferences in Federal Court October 31, 2019 | 94 Wash. L. Rev. 1233 William P. Lynch Abstract: Most cases settle before trial. Recent studies show that approximately 1% of cases filed in federal court go to trial. Alternative dispute resolution processes have been fully incorporated into federal court, and settlement conferences have long been used by federal court judges to control their dockets. Do they provide litigants with both substantive and procedural justice in the vast majority of cases that do not proceed to trial? Lawyers have raised concerns about judicial coercion to settle cases at settlement conferences, the loss of confidentiality that occurs when parties raise claims of bad faith participation at the conference, and that litigation over the level of participation at settlement conference threatens the premise that settlement conferences help reduce court congestion. |
William P. Lynch | 94 Wash. L. Rev. 1233 |
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The Promises and Perils of Using Big Data to Regulate Nonprofits The Promises and Perils of Using Big Data to Regulate Nonprofits October 31, 2019 | 94 Wash. L. Rev. 1281 Lloyd Hitoshi Mayer Abstract: For the optimist, government use of “Big Data” involves the careful collection of information from numerous sources. The government then engages in expert analysis of those data to reveal previously undiscovered patterns. Discovering patterns revolutionizes the regulation of criminal behavior, education, health care, and many other areas. For the pessimist, government use of Big Data involves the haphazard seizure of information to generate massive databases. Those databases render privacy an illusion and result in arbitrary and discriminatory computer-generated decisions. The reality is, of course, more complicated. On one hand, government use of Big Data may lead to greater efficiency, effectiveness, and transparency; on the other hand, such use risks inaccurate conclusions, invasions of privacy, unintended discrimination, and increased government power. Until recently, these were theoretical issues for nonprofits because federal and state regulators did not use Big Data to oversee them. But nonprofits can no longer ignore these issues, as the primary federal regulator is now emphasizing “data-driven” methods to guide its audit selection process, and state regulators are moving forward with plans to create a single, online portal to collect required filings. In addition, regulators are making much of the data they collect available in machine-readable form to researchers, journalists, and other members of the public. The question now is whether regulators, researchers, and nonprofits can learn from the Big Data experiences of other agencies and private actors to optimize the use of Big Data with respect to nonprofits. This Article explores the steps that nonprofit regulators have taken toward using Big Data techniques to enhance their ability to oversee the nonprofit sector. It then draws on the Big Data experiences of government regulators and private actors in other areas to identify the potential promises and perils of this approach to regulatory oversight of nonprofits. Finally, it recommends specific steps regulators and others should take to ensure that the promises are achieved and the perils avoided. View Article × |
Lloyd Hitoshi Mayer | 94 Wash. L. Rev. 1281 |
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Contract Interpretation with Corpus Linguistics Contract Interpretation with Corpus Linguistics October 31, 2019 | 94 Wash. L. Rev. 1337 Stephen C. Mouritsen Abstract: Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on the contracting parties and invite strategic behavior. |
Stephen C. Mouritsen | 94 Wash. L. Rev. 1337 |
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Replacing Geographic Lines with Conceptual Lines: A Proposal for Limited Authorization of Multijurisdictional Practice of Law Replacing Geographic Lines with Conceptual Lines: A Proposal for Limited Authorization of Multijurisdictional Practice of Law October 31, 2019 | 94 Wash. L. Rev. 1419 Patrick Medley Abstract: State regulations have created substantial barriers to lawyers who engage in multijurisdictional practice of law. Applying the amorphous concept of practice of law to modern society results in many lawyers who knowingly or unknowingly practice in multiple states—including states where they are not admitted to the bar. Yet there is no simple means by which a lawyer can obtain permission to engage in multijurisdictional practice in the United States. |
Patrick Medley | 94 Wash. L. Rev. 1419 |
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Don't Say Depression: Specific Diagnosable Injuries Under the Washington Law Against Discrimination's Privilege Statute Don't Say Depression: Specific Diagnosable Injuries Under the Washington Law Against Discrimination's Privilege Statute October 31, 2019 | 94 Wash. L. Rev. 1451 Jack Miller Abstract: In 2018, the Washington State Legislature amended the Washington Law Against Discrimination (WLAD) to prevent automatic waivers of physician- and psychologist-patient privileges when plaintiffs claim non-economic, emotional distress damages. This legislation appears to be in response to the Washington Court of Appeals’ decision Lodis v. Corbis Holding, Inc., which held that a plaintiff waives their patient- and psychologist-privilege merely by alleging emotional distress damages. The new law, RCW 49.60.510, prevents waiver unless the plaintiff alleges a specific diagnosable injury, relies on the testimony of a healthcare or psychiatric expert, or claims a “failure to accommodate a disability or discrimination on the basis of a disability.” RCW 49.60.510 does not specify what constitutes a specific diagnosable injury, but the legislative history suggests the Legislature was attempting to shift WLAD’s privilege law towards a standard similar to one used in federal courts. This Comment explores the federal court’s psychotherapist-patient privilege waiver and argues that federal courts’ privilege jurisprudence can provide some clarity to the ambiguity of “specific diagnosable” injuries. It further argues that courts’ failure to consider this legislative goal risks a return to the Lodis-era waiver standard. View Article × |
Jack Miller | 94 Wash. L. Rev. 1451 |
Rethinking Emergency Legislation in Washington State
Rethinking Emergency Legislation in Washington StateOctober 31, 2019 | 94 Wash. L. Rev. 1477 Eva Sharf Abstract: The people’s right to referendum in Washington State is substantively limited in only one way: the people cannot block through referendum “such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” This emergency exception to the referendum power must be explicitly invoked by the Washington State Legislature in what is called an “emergency clause.” Washington courts are willing to review emergency clauses to determine if a bill is, in fact, “necessary for the immediate preservation of the public peace, health or safety.” However, the courts have failed to articulate a coherent rule for deciding whether a bill meets that standard. As a result, the Legislature routinely exempts from referendum bills that do not address traditional emergencies—a practice that has been widely criticized. |
Eva Sharf | 94 Wash. L. Rev. 1477 |
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Unregulated Charity Unregulated Charity December 20, 2019 | 94 Wash. L. Rev. 1503 Eric Franklin Amarante Abstract: The vast majority of charities in the United States operate in a regulatory blind spot: they are neither meaningfully evaluated when they apply for charitable status nor substantively monitored after they receive charitable status. Driven by severe budget constraints, the IRS decided to essentially ignore any charity that claims it will realize less than $50,000 in annual gross receipts. From a practical perspective, the IRS’s decision makes sense. To the extent smaller charities are less likely to cause harm, it is reasonable (perhaps even preferable) to subject them to less scrutiny. This type of prioritization, known as risk-based regulation, has become increasingly popular as regulatory budgets have continued to shrink. But however intuitive, reasonable, or widespread risk-based regulation may seem, the fact remains that the IRS has effectively absolved itself of its duty to oversee the majority of charities.
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This Article explores, on both a micro- and macro-level, the negative consequences of the IRS’s decision to leave smaller charities unregulated. On the micro-level, the lack of regulation impacts virtually every person who interacts with the charitable sector, including donors, beneficiaries of charities, and private actors in the market. On the macro-level, as an increasing number of charities operate without proper regulation, the public will lose faith in the charitable sector and the “halo effect” enjoyed by all charitable organizations will erode. This Article is the first to identify and discuss the harms associated with the IRS’s failure to apply either front-end or back-end scrutiny to smaller charities. To address this regulatory failure, this Article argues that the IRS should require a more robust retrospective regulatory tool for all charities, regardless of size. This solution represents a cost-effective means for the IRS to meet its regulatory burden in a manner that will help restore public faith in the charitable sector. |
Eric Franklin Amarante | 94 Wash. L. Rev. 1503 |
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Community Consequences of Airbnb Community Consequences of Airbnb December 20, 2019 | 94 Wash. L. Rev. 1577 Allyson E. Gold Abstract: Short-term rental accommodations account for more than 20% of the United States lodging market, with annual sales now greater than those of nearly all legacy hotel brands. The rise of companies like Airbnb has created a booming market that provides affordable short-term rentals for travelers and new income for those with an extra couch, spare room, or even an unused home. However, while individual hosts and guests may benefit economically, the use of short-term rentals produces significant consequences for the surrounding community. Airbnb proliferation causes fewer affordable housing options, higher average asking rents, and erosion of neighborhood social capital. Due to discrimination among users on Airbnb’s platform, many of the benefits of short-term rental accommodations accrue to white hosts and guests, locking communities of color out of potential income and equity streams. These issues raise a question at the core of property law: which stick in the bundle is implicated by a short-term rental accommodation? |
Allyson E. Gold | 94 Wash. L. Rev. 1577 |
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Sexual Assault by Federal Actors, #MeToo, and Civil Rights Sexual Assault by Federal Actors, #MeToo, and Civil Rights December 20, 2019 | 94 Wash. L. Rev. 1639 Julie Goldscheid Abstract: Calls for accountability for gender violence have permeated public discourse in the aftermath of the #MeToo movement. While much attention has focused on high profile individuals accused of harassment, less attention has been paid to sexual assaults of more vulnerable and marginalized people, including low wage workers, lesbian, gay, bisexual, transgender and gender non-conforming people, and immigrants. In addition, at the same time that calls for accountability have targeted Hollywood, employers, universities, and even the Catholic church, relatively little outcry has focused on the longstanding and under-recognized problem of sexual assaults by government actors. This Article focuses on sexual assault by federal officials and considers, in particular, sexual assault of immigrants, including people living in or traveling to the United States to seek asylum. |
Julie Goldscheid | 94 Wash. L. Rev. 1639 |
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Emergent Regulatory Systems and Their Challenges: The Case of Combination Medical Products Emergent Regulatory Systems and Their Challenges: The Case of Combination Medical Products December 20, 2019 | 94 Wash. L. Rev. 1697 George Horvath Abstract: Where regulatory systems overlap, courts and scholars often focus on the undesirable aspects of the overlap—the ways in which systems conflict. One such context involves the regulation of prescription drugs and medical devices by the FDA’s premarket evaluation processes and by state common-law tort and products liability actions. FDA regulation and state common law are often described as separate, conflicting regulatory systems. This Article challenges that description by proposing a model in which FDA premarket evaluation and state common law function as a single regulatory system. |
George Horvath | 94 Wash. L. Rev. 1697 |
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Regulating Bite Mark Evidence: Lesbian Vampires and Other Myths of Forensic Odontology Regulating Bite Mark Evidence: Lesbian Vampires and Other Myths of Forensic Odontology December 20, 2019 | 94 Wash. L. Rev. 1769 Jennifer D. Oliva & Valena E. Beety Abstract: This is the third piece in a trilogy that examines and evaluates the standards that American courts apply to admit forensic “science” evidence proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts. |
Jennifer D. Oliva & Valena E. Beety | 94 Wash. L. Rev. 1769 |
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The Promise and Peril of Using Disability Law as a Tool for School Reform The Promise and Peril of Using Disability Law as a Tool for School Reform December 20, 2019 | 94 Wash. L. Rev. 1831 Claire Raj Abstract: Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school remedies under federal law. |
Claire Raj | 94 Wash. L. Rev. 1831 |
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Addiction-Informed Immigration Reform Addiction-Informed Immigration Reform December 20, 2019 | 94 Wash. L. Rev. 1891 Rebecca Sharpless Abstract: Immigration law fails to align with the contemporary understanding of substance addiction as a medical condition. The Immigration and Nationality Act regards noncitizens who suffer from drug or alcohol substance use disorder as immoral and undesirable. Addiction is a ground of exclusion and deportation and can prevent the finding of “good moral character” needed for certain immigration applications. Substance use disorder can lead to criminal behavior that lands noncitizens, including lawful permanent residents, in removal proceedings with no defense. The time has come for immigration law to catch up to today’s understanding of addiction. The damage done by failing to contemporize the law extends beyond the harms of unwarranted family separation due to the deportation or exclusion of people who suffer from substance use disorder. Holding noncitizens to an archaic standard threatens our civic and political identity as a diverse and democratic country. The bigger the gap between contemporary mores and immigration law and policy, the harder it is for U.S. citizens to develop a civic and political identity that is free of ethnic and racial animus. Double standards for citizens and noncitizens create cognitive dissonance, leaving society vulnerable to discriminatory or stereotypical views to justify the differential treatment. This phenomenon not only harms noncitizens but thwarts the formation of a national civic and political identity free of ethnic and racial bias. This Article proposes and explains the legislative reforms necessary to remedy the current state of immigration law’s treatment of people with substance use disorders. View Article × |
Rebecca Sharpless | 94 Wash. L. Rev. 1891 |
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Piecing Together Precedent: Fragmented Decisions From the Washington State Supreme Court Piecing Together Precedent: Fragmented Decisions From the Washington State Supreme Court December 20, 2019 | 94 Wash. L. Rev. 1989 Rachael Clark Abstract: For decades, countless jurisdictions have grappled with the ambiguous precedential weight of court decisions that lack a majority opinion. In American jurisprudence, applying a “majority,” “lead,” “concurrence,” or “dissent” label to an appellate court opinion indicates agreement or disagreement with the judgment of the case. When a decision is fragmented (that is, there is no majority opinion), courts often express the judgment of the court with one opinion labeled as the “plurality” or “lead” opinion. Traditionally, labeling an opinion as a “lead opinion” indicates that the reasoning expressed within the opinion has more support than the other opinions written for the court. In some jurisdictions, a lead opinion may also carry greater precedential value than its accompanying opinions. |
Rachael Clark | 94 Wash. L. Rev. 1989 |
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A Proposal to Improve Washington's Rules on Ex Parte Contact A Proposal to Improve Washington's Rules on Ex Parte Contact December 20, 2019 | 94 Wash. L. Rev. 2057 Connor Rowinski Abstract: Privilege doctrines play an important role in allowing clients to confide in their trusted attorneys and doctors. The intersection of two privilege doctrines in medical malpractice litigation—physician-patient privilege and attorney-client privilege—places physicians working at corporate hospitals in a catch-22 of allegiances. On one hand, physicians cannot disclose patient information, whereas on the other, they must assist their employer in defending the case. These concerns are heightened when attorneys seek to communicate with non-party physicians ex parte—that is, unsupervised. In Youngs v. Peacehealth, the Washington State Supreme Court allowed corporate defendants to communicate ex parte with the plaintiff’s treating physician under the veil of attorney-client privilege. The Youngs standard is relatively ambiguous on the scope of acceptable communication, however. This leaves patients at risk of having their privileged information inadvertently disclosed and physicians at risk for accidentally doing so. It also potentially provides unfair litigation advantages to corporate defendants. To help solve these issues, this Comment offers modifications to the Washington State Civil Rules that (1) require parties to conduct a Rule 26(f) discovery conference before engaging in ex parte communications with non-party treating physicians; and (2) require defendants to submit a motion to the Superior Court explaining why the ex parte communications are necessary to their discovery process. View Article × |
Connor Rowinski | 94 Wash. L. Rev. 2057 |
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Between You, Me, and Alexa: On the Legality of Virtual Assistant Devices in Two-Party Consent States Between You, Me, and Alexa: On the Legality of Virtual Assistant Devices in Two-Party Consent States December 20, 2019 | 94 Wash. L. Rev. 2029 Ria Kuruvilla Abstract: When an Amazon Echo is activated, the device is constantly recording and sending those recordings to Amazon’s cloud. For an always recording device such as the Echo, getting consent from every person subject to a recording proves difficult. An Echo-owner consents to the recordings when they purchase and register the device, but when does a guest in an Echo-owner’s home consent to being recorded? |
Ria Kuruvilla | 94 Wash. L. Rev. 2029 |
The Failings of Title IX for Survivors of Sexual Violence: Utilizing Restorative Justice on College Campuses
The Failings of Title IX for Survivors of Sexual Violence: Utilizing Restorative Justice on College CampusesDecember 20, 2019 | 94 Wash. L. Rev. 2085 Katie Vail Abstract: Universities should adopt restorative justice practices to serve the legal and personal needs of student survivors of sexual violence. Title IX prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Since 1997, the Department of Education’s Office for Civil Rights has issued “Dear Colleague Letters” to federally funded institutions to assist with Title IX compliance and implement procedures for complaints of sexual violence. In 2011, Assistant Secretary for Civil Rights Russlyn Ali under the Obama administration issued a Dear Colleague Letter, which expanded protections for survivors. However, it prohibited the use of mediation to resolve claims of sexual violence and raised concerns regarding the rights of students accused of committing sexual violence. |
Katie Vail | 94 Wash. L. Rev. 2085 |
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Platform Pleading: Analyzing Employment Disputes in the Technology Sector Platform Pleading: Analyzing Employment Disputes in the Technology Sector December 20, 2019 | 94 Wash. L. Rev. 1947 Joseph A. Seiner Abstract: The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses. |
Joseph A. Seiner | 94 Wash. L. Rev. 1947 |
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The Marital Wealth Gap The Marital Wealth Gap March 27, 2018 | 93 Wash. L. Rev. 1 Erez Aloni 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. |
Erez Aloni | 93 Wash. L. Rev. 1 |
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Snake Oil Speech Snake Oil Speech March 27, 2018 | 93 Wash. L. Rev. 73 Jane R. Bambauer Abstract: Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech. View Article × |
Jane R. Bambauer | 93 Wash. L. Rev. 73 |
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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 Hannah Bloch-Wehba 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. |
Hannah Bloch-Wehba | 93 Wash. L. Rev. 145 |
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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 Amy Gajda Abstract: When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value of older truthful information and decide at times that privacy should win out. In other words, they recognize that an individual whose embarrassing past has been revealed by another can sue for invasion of privacy in the United States, even when the historic information was once public. This Article explores Right to Be Forgotten-sensibilities in United States jurisprudence and suggests that such a Right has a foundation in historical case law and present-day statutes. It argues that the legal conception of privacy in one’s past may have some limited practical and important purposes but warns that any Right to Be Forgotten must be cabined effectively by presuming newsworthiness—a word defined similarly in law and journalism—in order to protect significant and competing First Amendment interests at a time when people in high places have vowed to curb press freedoms. View Article × |
Amy Gajda | 93 Wash. L. Rev. 201 |
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Forum-Selection Provisions in Corporate “Contracts” Forum-Selection Provisions in Corporate “Contracts” March 27, 2018 | 93 Wash. L. Rev. 265 Helen Hershkoff & Marcel Kahan 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. |
Helen Hershkoff & Marcel Kahan | 93 Wash. L. Rev. 265 |
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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 Jonathan Rosenbloom Abstract: Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel “gray infrastructure.” Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control, remove, and manipulate ecosystems. Left untouched, these ecosystems often provide critical services that strengthen a community’s resilience to disasters and slow changes. This Article describes the current state of land use laws and their focus on human-engineered, gray infrastructure developed as part of private projects. It explores how that infrastructure is reducing community resilience to change. By creatively combining human-engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure erected by private parties, this Article describes how land use laws can enhance community resilience. The Article concludes with several examples where land use laws are relied upon to help build costeffective, adaptive infrastructure to create more resilient communities. View Article × |
Jonathan Rosenbloom | 93 Wash. L. Rev. 317 |
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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 Brent Droze Abstract: In Flytenow, Inc. v. FAA, the D.C. Circuit encountered an important, yet unresolved, question: how much deference should a court give an agency for its interpretation of a common-law term used in a statute or regulation? Traditionally, the Chevron and Auer deference doctrines provide agencies significant freedom in clarifying and interpreting statutes and regulations. The use of these doctrines, though, becomes problematic when applied to fact patterns where agencies interpret the meaning of common-law terms. This Comment argues that courts should not apply either Chevron or Auer deference doctrines in cases where an agency interprets a term that already has a well-settled meaning in common law. Chevron deference is inappropriate in this scenario because Chevron is only applicable when a statute is ambiguous. By choosing to use a common-law term in a statute, Congress removed any possible ambiguity as to the meaning of the term. Congress intends for common-law terms in statutes to align with their common-law definitions. Auer deference is also inappropriate in this scenario. An agency cannot use a common-law term in a regulation, subsequently interpret that term to mean something other than its well-established definition in the common law, and then receive judicial deference for that interpretation. Courts, not agencies, are the appropriate arbiters of the meaning of a common-law term. This Comment argues that Skidmore deference is the most appropriate standard of review for agency interpretations of common-law terms. Skidmore appropriately balances an agency’s right to interpret statutes and regulations and the judiciary’s responsibility to create, maintain, and uphold the common law. View Article × |
Brent Droze | 93 Wash. L. Rev. 385 |
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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 Anne Pfeifle Abstract: Alexa, Amazon’s digital voice assistant, and devices like it, are increasingly common. With this trend comes growing problems, as illustrated by a murder investigation in Bentonville, Arkansas. Police wanted Amazon to turn over data associated with the suspect’s Echo device, hoping it had overheard something on the night of the murder. The case sparked wide-spread interest in the privacy implications of in-home devices that record audio of users. But the biggest threat to user privacy is not that Alexa may overhear a crime—it is that law enforcement will use such devices in new ways that users are not prepared for during investigations. Thus, a solution is needed for users to have the confidence and certainty that bringing these devices into their homes will not erode their privacy. This Comment proposes that companies should ensure privacy protections are engineered into their devices, and that legislatures should adopt forward-looking statutes to ensure protections for users. View Article × |
Anne Pfeifle | 93 Wash. L. Rev. 421 |
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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 Katherine Shattuck 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. |
Katherine Shattuck | 93 Wash. L. Rev. 459 |
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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 Markus Surratt 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? |
Markus Surratt | 93 Wash. L. Rev. 523 |
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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 Amanda Levendowski 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. |
Amanda Levendowski | 93 Wash. L. Rev. 579 |
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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 Jonathan C. Lipson 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. |
Jonathan C. Lipson | 93 Wash. L. Rev. 631 |
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Retaliation Backlash Retaliation Backlash January 01, 2018 | 93 Wash. L. Rev. 715 Alex B. Long 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. View Article × |
Alex B. Long | 93 Wash. L. Rev. 715 |
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Visual Metaphor and Trademark Distinctiveness Visual Metaphor and Trademark Distinctiveness January 01, 2018 | 93 Wash. L. Rev. 767 Dustin Marlan 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. |
Dustin Marlan | 93 Wash. L. Rev. 767 |
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Confidentiality in Patent Dispute Resolution: Antitrust Implications Confidentiality in Patent Dispute Resolution: Antitrust Implications January 01, 2018 | 93 Wash. L. Rev. 827 Mark R. Patterson 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. |
Mark R. Patterson | 93 Wash. L. Rev. 827 |
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Choosing Medical Malpractice Choosing Medical Malpractice January 01, 2018 | 93 Wash. L. Rev. 891 Nadia N. Sawicki 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. View Article × |
Nadia N. Sawicki | 93 Wash. L. Rev. 891 |
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Dangerous Warrants Dangerous Warrants January 01, 2018 | 93 Wash. L. Rev. 967 Nirej Sekhon 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. |
Nirej Sekhon | 93 Wash. L. Rev. 967 |
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Privacy in the Cloud: The Fourth Amendment Fog Privacy in the Cloud: The Fourth Amendment Fog January 01, 2018 | 93 Wash. L. Rev. 1019 Sarah Aitchison 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. View Article × |
Sarah Aitchison | 93 Wash. L. Rev. 1019 |
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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 Tevon Edwards 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. |
Tevon Edwards | 93 Wash. L. Rev. 1057 |
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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 Gavin Keene Abstract: The Violence Against Women Act (VAWA) requires participating states and the District of Columbia to pay for medical forensic exams for victims of rape and sexual assault, including the collection of evidence using “rape kits,” whether or not the victim chooses to pursue criminal charges. The chief statutory purpose of the requirement is to preserve evidence in the interest of justice without pressuring a traumatized victim to decide on the spot whether to activate a criminal investigation. Rape kits collected without an accompanying police report are called “anonymous rape kits,” “unreported rape kits,” or “Jane Doe rape kits.” This is because they are typically assigned an anonymous tracking number rather than the victim’s name for privacy reasons, before being sealed and stored for evidentiary integrity. Beyond requiring their subsidization, VAWA is silent on anonymous rape kit preservation, leaving methods of storage to the discretion of each state, many of which defer to local jurisdictions. In states that defer, inconsistent storage practices can lead to the loss or destruction of the kits. These outcomes undercut the statutory purpose of VAWA’s “nonreport” option and waste public funds. Using Washington State as a prototype, this Comment argues that states that do not regulate anonymous rape kit storage should remedy this problem legislatively. State legislatures should pass comprehensive statutes that assign maintenance responsibility to a relevant state agency, provide funding for costs associated with evidence collection and storage, ensure the preservation of evidence through the relevant statute of limitations, and require that victims be kept informed of their rights. Thoughtful regulation will ensure the proper preservation of critical evidence and facilitate the empowerment of sexual assault victims, and in those respects reinforce VAWA’s nonreport option. View Article × |
Gavin Keene | 93 Wash. L. Rev. 1089 |
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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 John Aloysius Cogan Jr. Abstract: The small group health insurance market is failing. Today, fewer than one-third |
John Aloysius Cogan Jr. | 93 Wash. L. Rev. 1121 |
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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 Josh Eagle Abstract: Over the past few decades, landowners have tried to use the First, Fourth, and |
Josh Eagle | 93 Wash. L. Rev. 1181 |
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Emojis and the Law Emojis and the Law October 01, 2018 | 93 Wash. L. Rev. 1227 Eric Goldman Abstract: Emojis are an increasingly important way we express ourselves. Though emojis |
Eric Goldman | 93 Wash. L. Rev. 1227 |
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The Legal Monopoly The Legal Monopoly October 01, 2018 | 93 Wash. L. Rev. 1293 Renee Newman Knake Abstract: Lawyers enjoy an exclusive monopoly over their craft, one unlike any other |
Renee Newman Knake | 93 Wash. L. Rev. 1293 |
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Contesting Police Credibility Contesting Police Credibility October 01, 2018 | 93 Wash. L. Rev. 1339 Rachel Moran Abstract: Criminal cases often amount to credibility contests between two actors: the |
Rachel Moran | 93 Wash. L. Rev. 1339 |
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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 David Niven & Aliza Plener Cover Abstract: Within Eighth Amendment doctrine, legislators are arbiters of contemporary |
David Niven & Aliza Plener Cover | 93 Wash. L. Rev. 1397 |
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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 Seth W. R. Brickey Abstract: In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint |
Seth W. R. Brickey | 93 Wash. L. Rev. 1449 |
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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 Nicholas Cody Abstract: Small, unmanned aircraft referred to as “drones” are becoming increasingly |
Nicholas Cody | 93 Wash. L. Rev. 1495 |
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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 Ben Moore Abstract: In 1973, the Washington State Legislature enacted the Washington Industrial |
Ben Moore | 92 Wash. L. Rev. 1605 |
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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 Sarah E. Smith Abstract: This Comment examines the constitutionality of Washington’s cyberstalking |
Sarah E. Smith | 93 Wash. L. Rev. 1563 |
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Reversing the Reliance Revolution in Contract Reversing the Reliance Revolution in Contract December 01, 2018 | 93 Wash. L. Rev. 1609 Eric Alden Abstract: During the past century, leading American academics have attempted to rewrite in radically altered form the theoretical foundation of liability in contract. In derogation of the historical bases for contractual liability in Anglo-American law, namely voluntary mutual exchange and “formal” contract, these intellectual revolutionaries desire to impose strict liability in contract on the basis of unilateral, unbargained-for reliance. |
Eric Alden | 93 Wash. L. Rev. 1609 |
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Stop and Frisk in a Concealed Carry World Stop and Frisk in a Concealed Carry World December 01, 2018 | 93 Wash. L. Rev. 1675 Shawn E. Fields Abstract: This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that “public gun possession” equals “criminal activity.” |
Shawn E. Fields | 93 Wash. L. Rev. 1675 |
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Danger Ahead: Risk Assessment and the Future of Bail Reform Danger Ahead: Risk Assessment and the Future of Bail Reform December 01, 2018 | 93 Wash. L. Rev. 1725 John Logan Koepke & David G. Robinson Abstract: In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people—particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests. |
John Logan Koepke & David G. Robinson | 93 Wash. L. Rev. 1725 |
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Finality, Appealability, and the Scope of Interlocutory Review Finality, Appealability, and the Scope of Interlocutory Review December 01, 2018 | 93 Wash. L. Rev. 1809 Bryan Lammon Abstract: Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be “final.” Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.” |
Bryan Lammon | 93 Wash. L. Rev. 1809 |
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Market Segmentation vs. Subsidization: Clean Energy Credits and the Commerce Clause's Economic Wisdom Market Segmentation vs. Subsidization: Clean Energy Credits and the Commerce Clause's Economic Wisdom December 01, 2018 | 93 Wash. L. Rev. 1853 Felix Mormann Abstract: The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for better differentiation between constitutionally questionable market segmentation and constitutionally sound subsidization policies—in clean energy policy and beyond. |
Felix Mormann | 93 Wash. L. Rev. 1853 |
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The Multiple Justifications of Occupational Licensing The Multiple Justifications of Occupational Licensing December 01, 2018 | 93 Wash. L. Rev. 1903 Nick Robinson Abstract: Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational licensing to significantly limit when and how licensing can be used through their interpretation of antitrust law and the First and Fourteenth Amendments of the Constitution. |
Nick Robinson | 93 Wash. L. Rev. 1903 |
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Privacy Localism Privacy Localism December 01, 2018 | 93 Wash. L. Rev. 1961 Ira S. Rubinstein Abstract: Privacy law scholarship often focuses on domain-specific federal privacy laws and state efforts to broaden them. This Article provides the first comprehensive analysis of privacy regulation at the local level (which it dubs “privacy localism”), using recently enacted privacy laws in Seattle and New York City as principal examples. Further, this Article attributes the rise of privacy localism to a combination of federal and state legislative failures and three emerging urban trends: the role of local police in federal counterterrorism efforts; smart city and open data initiatives; and demands for local police reform in the wake of widely reported abusive police practices. |
Ira S. Rubinstein | 93 Wash. L. Rev. 1961 |
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Privacy's Double Standards Privacy's Double Standards December 01, 2018 | 93 Wash. L. Rev. 2051 Scott Skinner-Thompson Abstract: Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. |
Scott Skinner-Thompson | 93 Wash. L. Rev. 2051 |
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To Withdraw or Not to Withdraw: Reviewability of an Agency’s Withdrawn Proposed Rule To Withdraw or Not to Withdraw: Reviewability of an Agency’s Withdrawn Proposed Rule December 01, 2018 | 93 Wash. L. Rev. 2107 Jane E. Carmody Abstract: Federal agencies propose thousands of regulations in any given year. The Administrative Procedure Act requires such agencies to follow certain procedures when enacting rules and regulations. However, when an agency proposes a new rule that is purely discretionary—not mandated by Congress—it may withdraw the proposed rule at any point before the rule is finalized. In October 2017, the Centers of Medicare and Medicaid (CMS) withdrew a proposed rule that, if enacted, would have required long-term care facilities to recognize out of state same-sex marriages as a condition of Medicare and Medicaid participation. In its formal withdrawal published in the Federal Register, CMS reasoned that the proposed rule was no longer necessary due to the U.S. Supreme Court decision in Obergefell v. Hodges. |
Jane E. Carmody | 93 Wash. L. Rev. 2107 |
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Remaining Silent in Indian Country: Self-Incrimination and Grants of Immunity for Tribal Court Defendants Remaining Silent in Indian Country: Self-Incrimination and Grants of Immunity for Tribal Court Defendants December 01, 2018 | 93 Wash. L. Rev. 2139 Philipp C. Kunze Abstract: A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes within the boundaries of the United States. In response, Congress exercised its plenary power and passed the Indian Civil Rights Act (ICRA). Under federal law, ICRA extended many, but not all, protections afforded under the Bill of Rights to tribal defendants without any required action from the tribes; many of the provisions are verbatim from the Constitution’s amendments. However, the complicated distribution of jurisdiction amongst sovereigns, as well as the tribal authority to create and implement unique constitutions and systems of justice, calls into question the standard by which to evaluate violations of the privilege against self-incrimination in tribal court. Furthermore, rare examples exist in which a court of any jurisdiction has considered or extended the mutually binding nature of grants of immunity and the use of testimony compelled by a separate jurisdiction to include tribal courts. This Comment suggests that violations of ICRA’s protections against self-incrimination be evaluated under a Fifth Amendment standard, utilizing U.S. Supreme Court precedent. This approach ensures a predictable analysis that is consistent with the legislative intent of ICRA and minimizes potential complications upon federal habeas review. This Comment further suggests that the universal application of Fifth Amendment precedent is a prerequisite for mutual and binding recognition of tribal, state, and federal grants of immunity. Mutual recognition places tribal courts on equal footing with state and federal courts. Further, a defendant facing prosecution in two or more courts exercising concurrent jurisdiction benefits when courts extend and recognize binding grants of immunity. Lastly, when grants of immunity apply in each jurisdiction, tribal courts and communities are empowered to pursue avenues of justice unique to tribal traditions and cultures. View Article × |
Philipp C. Kunze | 93 Wash. L. Rev. 2139 |
Unrealistic Expectations: The Federal Government’s Unachievable Mandate for State Cannabis Regulation
Unrealistic Expectations: The Federal Government’s Unachievable Mandate for State Cannabis RegulationDecember 01, 2018 | 93 Wash. L. Rev. 2175 Rebecca Sweeney Abstract: The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act’s classification of cannabis as a Schedule I substance. In 2015, Nebraska and Oklahoma unsuccessfully petitioned the U.S. Supreme Court for permission to sue Colorado because its cannabis was leaking outside the state’s borders. Nebraska and Oklahoma insisted that Colorado’s legalization scheme compromises the drug policies of Nebraska, Oklahoma, and other neighboring states. Because the U.S. Department of Justice rescinded its previous guidance and Congress continues to stay silent regarding the tension between state laws, the judicial branch has a new opportunity to validate the concerns of Nebraska and Oklahoma. Therefore, it is even more important for states that legalize cannabis to prevent cannabis from leaking outside their borders. To prevent diversion of cannabis outside its state’s borders, the Washington State Legislature has created a regulatory licensing system. But despite Washington’s tightly regulated system, the federal government remains concerned about the legalized cannabis industry. Neither Washington nor Colorado has successfully prevented all cannabis diversion. The Cole Memorandum articulated an unrealistic standard for states’ reduction in diversion: total elimination. At the very least, Washington and Colorado’s regulatory procedures should be compared to those of other states without legalization. Ultimately, the federal government should conclusively determine whether states are able to legalize cannabis without the overhanging threat of federal intervention on the basis of diversion. The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act’s classification of cannabis as a Schedule I substance. In 2015, Nebraska and Oklahoma unsuccessfully petitioned the U.S. Supreme Court for permission to sue Colorado because its cannabis was leaking outside the state’s borders. Nebraska and Oklahoma insisted that Colorado’s legalization scheme compromises the drug policies of Nebraska, Oklahoma, and other neighboring states. Because the U.S. Department of Justice rescinded its previous guidance and Congress continues to stay silent regarding the tension between state laws, the judicial branch has a new opportunity to validate the concerns of Nebraska and Oklahoma. Therefore, it is even more important for states that legalize cannabis to prevent cannabis from leaking outside their borders. To prevent diversion of cannabis outside its state’s borders, the Washington State Legislature has created a regulatory licensing system. But despite Washington’s tightly regulated system, the federal government remains concerned about the legalized cannabis industry. |
Rebecca Sweeney | 93 Wash. L. Rev. 2175 |
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Head in the Clouds, Head in the Sand: Federal Failure to Update Guidance on Computer Transactions in an International Context Head in the Clouds, Head in the Sand: Federal Failure to Update Guidance on Computer Transactions in an International Context December 01, 2018 | 93 Wash. L. Rev. 2213 Logan S. Weaver Abstract: The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or entity avoids activities that constitute a trade or business within the United States under the Internal Revenue Code, precluding taxable effectively connected income, even significant revenue streams may escape taxation by the United States. With the rise of new models of digital transactions, companies may structure their business operations to limit or avoid U.S. taxation. Twenty years ago, the Department of the Treasury developed regulations governing computer transactions. Since then, new mechanisms for digital deliveries have developed, including the cloud computing products. These products—software-as-a-service (SaaS), platform-as-a-service (PaaS), and infrastructure-as-a-service (IaaS)—have sprouted, rooted, and blossomed into an expansive and profitable industry. This Comment summarizes the landscape of cloud taxation, reviews different ways to frame cloud transactions under current law, and advocates for new federal action to ensure income does not escape taxation by virtue of the underlying transaction’s technological form. |
Logan S. Weaver | 93 Wash. L. Rev. 2213 |
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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 Michael C. Blumm 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. View Article × |
Michael C. Blumm | 92 Wash. L. Rev. 1 |
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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 Roger Colinvaux 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. View Article × |
Roger Colinvaux | 92 Wash. L. Rev. 39 |
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“Clientless” Lawyers “Clientless” Lawyers March 21, 2017 | 92 Wash. L. Rev. 87 Russell M. Gold 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. View Article × |
Russell M. Gold | 92 Wash. L. Rev. 87 |
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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 Ryan T. Holte & Christopher B. Seaman 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. View Article × |
Ryan T. Holte & Christopher B. Seaman | 92 Wash. L. Rev. 145 |
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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 Steven J. Mulroy 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. View Article × |
Steven J. Mulroy | 92 Wash. L. Rev. 213 |
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Artistic Control After Death Artistic Control After Death March 21, 2017 | 92 Wash. L. Rev. 253 Eva E. Subotnik 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. View Article × |
Eva E. Subotnik | 92 Wash. L. Rev. 253 |
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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 Urska Velikonja 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. View Article × |
Urska Velikonja | 92 Wash. L. Rev. 315 |
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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 Asti Gallina 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. View Article × |
Asti Gallina | 92 Wash. L. Rev. 371 |
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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 Desiree Phair 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. View Article × |
Desiree Phair | 92 Wash. L. Rev. 425 |
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“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 Kaleigh Powell 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. View Article × |
Kaleigh Powell | 92 Wash. L. Rev. 481 |
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W(h)ither the Tax Gap? W(h)ither the Tax Gap? June 19, 2017 | 92 Wash. L. Rev. 521 James Alm & Jay A. Soled 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. View Article × |
James Alm & Jay A. Soled | 92 Wash. L. Rev. 521 |
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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 Carlos Berdejó 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. View Article × |
Carlos Berdejó | 92 Wash. L. Rev. 567 |
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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 John F. Coyle 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. View Article × |
John F. Coyle | 92 Wash. L. Rev. 631 |
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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 Katherine Florey 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. View Article × |
Katherine Florey | 92 Wash. L. Rev. 713 |
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Class Conflicts Class Conflicts June 19, 2017 | 92 Wash. L. Rev. 785 Morris A. Ratner 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. View Article × |
Morris A. Ratner | 92 Wash. L. Rev. 785 |
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Parental Abduction and the State Intervention Paradox Parental Abduction and the State Intervention Paradox June 19, 2017 | 92 Wash. L. Rev. 861 Jane K. Stoever 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. View Article × |
Jane K. Stoever | 92 Wash. L. Rev. 861 |
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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 Sophia E. Amberson 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. View Article × |
Sophia E. Amberson | 92 Wash. L. Rev. 937 |
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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 Eric A. Franz 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. View Article × |
Eric A. Franz | 92 Wash. L. Rev. 983 |
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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 Harlan Thomas Mechling 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. View Article × |
Harlan Thomas Mechling | 92 Wash. L. Rev. 1029 |
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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 Jane Pryjmak 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. View Article × |
Jane Pryjmak | 92 Wash. L. Rev. 1071 |
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Dignity, Inequality, and Stereotypes Dignity, Inequality, and Stereotypes October 03, 2017 | 92 Wash. L. Rev. 1119 Luke A. Boso 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. View Article × |
Luke A. Boso | 92 Wash. L. Rev. 1119 |
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Adjudicating Religious Sincerity Adjudicating Religious Sincerity October 03, 2017 | 92 Wash. L. Rev. 1185 Nathan S. Chapman 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. View Article × |
Nathan S. Chapman | 92 Wash. L. Rev. 1185 |
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Nudging Patient Decision-Making Nudging Patient Decision-Making October 03, 2017 | 92 Wash. L. Rev. 1255 Wendy Netter Epstein 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. View Article × |
Wendy Netter Epstein | 92 Wash. L. Rev. 1255 |
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Pre-Enforcement Litigation Needed for Taxing Procedures Pre-Enforcement Litigation Needed for Taxing Procedures October 03, 2017 | 92 Wash. L. Rev. 1317 Stephanie Hunter McMahon 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. View Article × |
Stephanie Hunter McMahon | 92 Wash. L. Rev. 1317 |
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What’s (Still) Wrong with Credit Ratings? What’s (Still) Wrong with Credit Ratings? October 03, 2017 | 92 Wash. L. Rev. 1407 Frank Partnoy 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. View Article × |
Frank Partnoy | 92 Wash. L. Rev. 1407 |
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Breaking Down Bias: Legal Mandates vs. Corporate Interests Breaking Down Bias: Legal Mandates vs. Corporate Interests October 03, 2017 | 92 Wash. L. Rev. 1473 Jamillah Bowman Williams 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. View Article × |
Jamillah Bowman Williams | 92 Wash. L. Rev. 1473 |
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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 Eric T. Kohan 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. View Article × |
Eric T. Kohan | 92 Wash. L. Rev. 1515 |
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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 Maricarmen Perez-Vargas 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. View Article × |
Maricarmen Perez-Vargas | 92 Wash. L. Rev. 1571 |
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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 Samantha Pitsch 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. View Article × |
Samantha Pitsch | 92 Wash. L. Rev. 1605 |
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Customary International Law in United States Courts Customary International Law in United States Courts December 20, 2017 | 92 Wash. L. Rev. 1641 Gary Born Abstract: Over the past two decades, the status of customary international law in U.S. courts has been the subject of vigorous debate. On the one hand, proponents of the “modernist” position contend that rules of customary international law are presumptively rules of federal law, which apply directly in U.S. courts and preempt inconsistent state law even in the absence of federal legislative or executive authorization. On the other hand, the “revisionists” argue that, in the absence of congressional legislation or a U.S. treaty, rules of customary international law are generally not matters of federal law, and will therefore generally be governed by state law. This Article argues for an approach that rejects central elements of both the modernist and revisionist positions, while also adopting other aspects of both positions. The Article contends that the text, structure, and objectives of the Constitution, and the weight of judicial authority, require treating all rules of customary international law as rules of federal law, but that such rules will be directly applicable in U.S. courts only when the federal political branches have expressly or impliedly provided for judicial application of a particular rule. |
Gary Born | 92 Wash. L. Rev. 1641 |
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Welfare and Federalism’s Peril Welfare and Federalism’s Peril December 20, 2017 | 92 Wash. L. Rev. 1721 Andrew Hammond Abstract: Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF)—the TANF block grant—guaranteed the program’s deterioration. The Article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved programs. The Article then explores two potential paths forward for TANF as either a devolutionary outlier in social policy or as a harbinger of what is to come from recent Congressional proposals to block grant Medicaid and SNAP (food stamps). Public interest lawyers rightly fear that TANF could be the cutting edge of a newly devolved American safety net. The Article concludes by considering what the cautionary tale of TANF means for scholars of federalism and anti-poverty advocates. View Article × |
Andrew Hammond | 92 Wash. L. Rev. 1721 |
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The New Sister-State Sovereign Immunity The New Sister-State Sovereign Immunity December 20, 2017 | 92 Wash. L. Rev. 1771 Michael H. Hoffheimer Abstract: The Article reviews the constitutional status of sister-state sovereign immunity. It argues that the parity requirement announced in Franchise Tax Board v. Hyatt (2016) is a temporary compromise that is supported by neither the purposes of the Full Faith and Credit Clause nor by cases cited by the Court. It further argues that parity is bad policy because parity overprotects states for acts they commit beyond their borders and under protects the interests of forum states in regulating conduct within their territorial jurisdiction. |
Michael H. Hoffheimer | 92 Wash. L. Rev. 1771 |
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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 Margaret Hu Abstract: This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. |
Margaret Hu | 92 Wash. L. Rev. 1819 |
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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 John Delaney Abstract: Lawmakers constantly balance competing interests. They decide where to draw lines so that societal goals are accomplished without ignoring the needs of those who will be affected by their choices. The Washington State Legislature is now in the process of addressing the line between government transparency and the protection of private companies’ trade secrets. Companies who provide technology to the federal government are susceptible to losing their trade secrets through a public records request. The Washington State Legislature is currently reviewing the trade secret exception to the Public Records Act to ensure it is continuing to protect companies from losing their trade secrets. This Comment will both address the dangers companies face and evaluate the current proposals to change the law. View Article × |
John Delaney | 92 Wash. L. Rev. 1905 |
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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 Gabrielle J. Hanna Abstract: The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions are subject to myriad stringent procedural rules that help protect class members, members who “opt out,” and even defendants who find themselves liable for often sky-high damages. On the other hand, parens patriae suits are largely unregulated and free from requirements that plaintiffs seeking class certification must meet. Part of this distinction seems to stem from an assumption that attorneys general are adequate representatives of their citizens’ interests. The relative ease of bringing a parens patriae suit, compared to the increasingly onerous requirements of private class actions, has led state attorneys general to bring claims under parens patriae standing more frequently in the twenty-first century. But the lack of procedural protections in parens patriae suits means that state citizens affected by a parens patriae suit may potentially be precluded via res judicata from bringing valid, individual or class claims that have already been brought by the state on their behalf. Furthermore, it is not clear that parens patriae suits are an adequate, let alone superior, method of litigating citizens’ claims. Settlements reached between states and defendants pose additional adequacy problems due to being unregulated and determined by a political representative, who may have interests distinct and separate from the interests of individual citizens. |
Gabrielle J. Hanna | 92 Wash. L. Rev. 1955 |
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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 Alexander S. Arkfeld Abstract: As climate change’s momentum becomes increasingly more difficult to quell, environmentalists are litigating to stop oil pipeline expansion. Litigation over two recently completed oil pipelines—the Flanagan South and the Gulf Coast—illustrates the legal battle environmentalists face. Given the outcome of those cases, it may seem that environmentalists face insurmountable judicial precedent. But they are not out of options quite yet. |
Alexander S. Arkfeld | 92 Wash. L. Rev. 1991 |
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Hospital Mergers and Economic Efficiency Hospital Mergers and Economic Efficiency March 21, 2016 | 91 Wash. L. Rev. 1 Roger D. Blair, Christine Piette Durrance & D. Daniel Sokol 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 System, Ltd. (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. View Article × |
Roger D. Blair, Christine Piette Durrance & D. Daniel Sokol | 91 Wash. L. Rev. 1 |
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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 June Carbone & Jody Lyneé Madeira 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. View Article × |
June Carbone & Jody Lyneé Madeira | 91 Wash. L. Rev. 71 |
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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 Michael A. Carrier View Article × |
Michael A. Carrier | 91 Wash. L. Rev. 109 |
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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 William S. Comanor & Jack Needleman 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. View Article × |
William S. Comanor & Jack Needleman | 91 Wash. L. Rev. 119 |
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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 Andrew I. Gavil & Tara Isa Koslov 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. View Article × |
Andrew I. Gavil & Tara Isa Koslov | 91 Wash. L. Rev. 147 |
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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 Thomas L. Greaney & Douglas Ross 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. View Article × |
Thomas L. Greaney & Douglas Ross | 91 Wash. L. Rev. 199 |
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Buyer Power and Heathcare Prices Buyer Power and Heathcare Prices March 21, 2016 | 91 Wash. L. Rev. 253 John B. Kirkwood 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. View Article × |
John B. Kirkwood | 91 Wash. L. Rev. 253 |
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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 William E. Kovacic & David A. Hyman 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. View Article × |
William E. Kovacic & David A. Hyman | 91 Wash. L. Rev. 295 |
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“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 Michael J. Jeter 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. View Article × |
Michael J. Jeter | 91 Wash. L. Rev. 325 |
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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 Weston R. LeMay 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. View Article × |
Weston R. LeMay | 91 Wash. L. Rev. 361 |
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Judicial Lobbying Judicial Lobbying June 21, 2016 | 91 Wash. L. Rev. 401 J. Jonas Anderson 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. View Article × |
J. Jonas Anderson | 91 Wash. L. Rev. 401 |
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Constitutional Retroactivity in Criminal Procedure Constitutional Retroactivity in Criminal Procedure June 21, 2016 | 91 Wash. L. Rev. 463 Dov Fox & Alex Stein 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. View Article × |
Dov Fox & Alex Stein | 91 Wash. L. Rev. 463 |
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Taxes and Ability to Pay in Municipal Bankruptcy Taxes and Ability to Pay in Municipal Bankruptcy June 21, 2016 | 91 Wash. L. Rev. 515 John Patrick Hunt 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. View Article × |
John Patrick Hunt | 91 Wash. L. Rev. 515 |
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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 Nina A. Kohn & Catheryn Koss 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. View Article × |
Nina A. Kohn & Catheryn Koss | 91 Wash. L. Rev. 581 |
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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 Shannon M. Roesler 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. View Article × |
Shannon M. Roesler | 91 Wash. L. Rev. 637 |
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Anonymization and Risk Anonymization and Risk June 21, 2016 | 91 Wash. L. Rev. 703 Ira S. Rubinstein & Woodrow Hartzog 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. View Article × |
Ira S. Rubinstein & Woodrow Hartzog | 91 Wash. L. Rev. 703 |
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Revisiting the Taxation of Fringe Benefits Revisiting the Taxation of Fringe Benefits June 21, 2016 | 91 Wash. L. Rev. 761 Jay A. Soled & Kathleen DeLaney Thomas 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. View Article × |
Jay A. Soled & Kathleen DeLaney Thomas | 91 Wash. L. Rev. 761 |
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The Right to Be Virtually Clothed The Right to Be Virtually Clothed June 21, 2016 | 91 Wash. L. Rev. 817 Peter W. Cooper 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. View Article × |
Peter W. Cooper | 91 Wash. L. Rev. 817 |
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State Equity Crowdfunding and Investor Protection State Equity Crowdfunding and Investor Protection June 21, 2016 | 91 Wash. L. Rev. 847 Christopher H. Pierce-Wright 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. View Article × |
Christopher H. Pierce-Wright | 91 Wash. L. Rev. 847 |
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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 Ashleigh B. Rhodes 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. View Article × |
Ashleigh B. Rhodes | 91 Wash. L. Rev. 887 |
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Gross Error Gross Error October 22, 2015 | 91 Wash. L. Rev. 929 Eric Berger 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. View Article × |
Eric Berger | 91 Wash. L. Rev. 929 |
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One Percent Procedure One Percent Procedure October 22, 2015 | 91 Wash. L. Rev. 1005 Brooke D. Coleman 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. View Article × |
Brooke D. Coleman | 91 Wash. L. Rev. 1005 |
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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 Mitchell L. Engler & Edward D. Stein 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. |
Mitchell L. Engler & Edward D. Stein | 91 Wash. L. Rev. 1073 |
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Taking Bankruptcy Rights Seriously Taking Bankruptcy Rights Seriously October 22, 2015 | 91 Wash. L. Rev. 1115 Rafael I. Pardo 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. View Article × |
Rafael I. Pardo | 91 Wash. L. Rev. 1115 |
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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 Roy Shapira 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. View Article × |
Roy Shapira | 91 Wash. L. Rev. 1193 |
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The House Edge: On Gambling and Professional Discipline The House Edge: On Gambling and Professional Discipline October 22, 2015 | 91 Wash. L. Rev. 1253 Stacey A. Tovino 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. View Article × |
Stacey A. Tovino | 91 Wash. L. Rev. 1253 |
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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 James Carr 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. View Article × |
James Carr | 91 Wash. L. Rev. 1313 |
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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 Ada Danelo 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. View Article × |
Ada Danelo | 91 Wash. L. Rev. 1355 |
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Pluralizing the “Sharing” Economy Pluralizing the “Sharing” Economy December 21, 2016 | 91 Wash. L. Rev. 1397 Erez Aloni 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.” View Article × |
Erez Aloni | 91 Wash. L. Rev. 1397 |
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The Class Action as Trust The Class Action as Trust December 21, 2016 | 91 Wash. L. Rev. 1461 Sergio J. Campos 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. View Article × |
Sergio J. Campos | 91 Wash. L. Rev. 1461 |
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The Learned Hand Unformula for Short-Swing Liability The Learned Hand Unformula for Short-Swing Liability December 21, 2016 | 91 Wash. L. Rev. 1523 Andrew Chin 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. View Article × |
Andrew Chin | 91 Wash. L. Rev. 1523 |
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Surveillance Policy Making by Procurement Surveillance Policy Making by Procurement December 21, 2016 | 91 Wash. L. Rev. 1595 Catherine Crump 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. View Article × |
Catherine Crump | 91 Wash. L. Rev. 1595 |
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An “App” for Third Party Beneficiaries An “App” for Third Party Beneficiaries December 21, 2016 | 91 Wash. L. Rev. 1663 David G. Epstein, Alexandra W. Cook, J. Kyle Lowder, & Michelle Sonntag 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. View Article × |
David G. Epstein, Alexandra W. Cook, J. Kyle Lowder, & Michelle Sonntag | 91 Wash. L. Rev. 1663 |
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The Antidemocratic Sixth Amendment The Antidemocratic Sixth Amendment December 21, 2016 | 91 Wash. L. Rev. 1705 Janet Moore 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. View Article × |
Janet Moore | 91 Wash. L. Rev. 1705 |
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Regulating Secrecy Regulating Secrecy December 21, 2016 | 91 Wash. L. Rev. 1769 W. Nicholson Price II 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. View Article × |
W. Nicholson Price II | 91 Wash. L. Rev. 1769 |
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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 Tiffany Curtiss 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. View Article × |
Tiffany Curtiss | 91 Wash. L. Rev. 1813 |
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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 Kaitlyn C. Kelly 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. View Article × |
Kaitlyn C. Kelly | 91 Wash. L. Rev. 1851 |
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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 Valerie Walker 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. View Article × |
Valerie Walker | 91 Wash. L. Rev. 1895 |
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Home-Country Effects of Corporate Inversions Home-Country Effects of Corporate Inversions March 30, 2015 | 90 Wash. L. Rev. 1 Omri Marian 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. View Article × |
Omri Marian | 90 Wash. L. Rev. 1 |
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Revisiting Claim and Issue Preclusion in Washington Revisiting Claim and Issue Preclusion in Washington March 30, 2015 | 90 Wash. L. Rev. 75 Kathleen M. McGinnis 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. View Article × |
Kathleen M. McGinnis | 90 Wash. L. Rev. 75 |
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Experimental Execution Experimental Execution March 30, 2015 | 90 Wash. L. Rev. 147 Seema K. Shah 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. View Article × |
Seema K. Shah | 90 Wash. L. Rev. 147 |
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Administrating Patent Litigation Administrating Patent Litigation March 30, 2015 | 90 Wash. L. Rev. 205 Jacob S. Sherkow 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. View Article × |
Jacob S. Sherkow | 90 Wash. L. Rev. 205 |
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Rethinking Virtual Currency Regulation in the Bitcoin Age Rethinking Virtual Currency Regulation in the Bitcoin Age March 30, 2015 | 90 Wash. L. Rev. 271 Kevin V. Tu & Michael W. Meredith 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. View Article × |
Kevin V. Tu & Michael W. Meredith | 90 Wash. L. Rev. 271 |
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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 Devra R. Cohen 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. View Article × |
Devra R. Cohen | 90 Wash. L. Rev. 349 |
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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 Michael Ellis 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. View Article × |
Michael Ellis | 90 Wash. L. Rev. 405 |
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Removal Jurisdiction over Mass Actions Removal Jurisdiction over Mass Actions March 30, 2015 | 90 Wash. L. Rev. 453 Mallory A. Gitt 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. View Article × |
Mallory A. Gitt | 90 Wash. L. Rev. 453 |
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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 Darin Jones 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. View Article × |
Darin Jones | 90 Wash. L. Rev. 505 |
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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 Philip Paine 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. View Article × |
Philip Paine | 90 Wash. L. Rev. 545 |
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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 Zahr K. Said 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. View Article × |
Zahr K. Said | 90 Wash. L. Rev. 579 |
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Campbell as Fair Use Blueprint? Campbell as Fair Use Blueprint? June 30, 2015 | 90 Wash. L. Rev. 597 Pierre N. Leval 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. View Article × |
Pierre N. Leval | 90 Wash. L. Rev. 597 |
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Market Effects Bearing on Fair Use Market Effects Bearing on Fair Use June 30, 2015 | 90 Wash. L. Rev. 615 Jeanne C. Fromer 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. View Article × |
Jeanne C. Fromer | 90 Wash. L. Rev. 615 |
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Campbell at 21/Sony at 31 Campbell at 21/Sony at 31 June 30, 2015 | 90 Wash. L. Rev. 651 Jessica Litman 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. View Article × |
Jessica Litman | 90 Wash. L. Rev. 651 |
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Fair Use: An Affirmative Defense? Fair Use: An Affirmative Defense? June 30, 2015 | 90 Wash. L. Rev. 685 Lydia Pallas Loren
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. View Article × |
Lydia Pallas Loren | 90 Wash. L. Rev. 685 |
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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 William McGeveran 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. View Article × |
William McGeveran | 90 Wash. L. Rev. 713 |
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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 R. Anthony Reese 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. View Article × |
R. Anthony Reese | 90 Wash. L. Rev. 755 |
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Possible Futures of Fair Use Possible Futures of Fair Use June 30, 2015 | 90 Wash. L. Rev. 815 Pamela Samuelson 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. View Article × |
Pamela Samuelson | 90 Wash. L. Rev. 815 |
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Content, Purpose, or Both? Content, Purpose, or Both? June 30, 2015 | 90 Wash. L. Rev. 869 Rebecca Tushnet 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. View Article × |
Rebecca Tushnet | 90 Wash. L. Rev. 869 |
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"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 Jessica Knowles 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. View Article × |
Jessica Knowles | 90 Wash. L. Rev. 893 |
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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 Cecily C. Shiel 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. View Article × |
Cecily C. Shiel | 90 Wash. L. Rev. 943 |
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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 Ross Tanaka 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. View Article × |
Ross Tanaka | 90 Wash. L. Rev. 993 |
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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 Ann C. Hodges 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. View Article × |
Ann C. Hodges | 90 Wash. L. Rev. 1039 |
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Regulating Real-World Surveillance Regulating Real-World Surveillance October 30, 2015 | 90 Wash. L. Rev. 1113 Margot E. Kaminski 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. View Article × |
Margot E. Kaminski | 90 Wash. L. Rev. 1113 |
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The Law of Intimate Work The Law of Intimate Work October 30, 2015 | 90 Wash. L. Rev. 1167 Naomi Schoenbaum 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. View Article × |
Naomi Schoenbaum | 90 Wash. L. Rev. 1167 |
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Divorce Equality Divorce Equality October 30, 2015 | 90 Wash. L. Rev. 1245 Allison Anna Tait 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. View Article × |
Allison Anna Tait | 90 Wash. L. Rev. 1245 |
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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 James C. Feldman 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. View Article × |
James C. Feldman | 90 Wash. L. Rev. 1313 |
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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 Devon King 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. View Article × |
Devon King | 90 Wash. L. Rev. 1349 |
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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 Jordan McCrite 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. View Article × |
Jordan McCrite | 90 Wash. L. Rev. 1395 |
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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 Henry Ross 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. View Article × |
Henry Ross | 90 Wash. L. Rev. 1431 |
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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 Margaret Sholian 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. View Article × |
Margaret Sholian | 90 Wash. L. Rev. 1471 |
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Energy-Environment Policy Alignments Energy-Environment Policy Alignments December 21, 2015 | 90 Wash. L. Rev. 1517 Todd S. Aagaard 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. View Article × |
Todd S. Aagaard | 90 Wash. L. Rev. 1517 |
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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 Robin Kundis Craig 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. View Article × |
Robin Kundis Craig | 90 Wash. L. Rev. 1583 |
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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 Daniel A. Farber 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. View Article × |
Daniel A. Farber | 90 Wash. L. Rev. 1659 |
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“Underdog” Arbitration: A Plan for Transparency “Underdog” Arbitration: A Plan for Transparency December 21, 2015 | 90 Wash. L. Rev. 1727 Ramona L. Lampley 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. View Article × |
Ramona L. Lampley | 90 Wash. L. Rev. 1727 |
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The Unwilling Donor |