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Articles 1 - 30 of 51
Full-Text Articles in Law
Surveillance Policy Making By Procurement, Catherine Crump
Surveillance Policy Making By Procurement, Catherine Crump
Washington Law Review
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 …
The Antidemocratic Sixth Amendment, Janet Moore
The Antidemocratic Sixth Amendment, Janet Moore
Washington Law Review
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 …
Regulating Secrecy, W. Nicholson Price Ii
Regulating Secrecy, W. Nicholson Price Ii
Washington Law Review
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 …
Pluralizing The "Sharing" Economy, Erez Aloni
Pluralizing The "Sharing" Economy, Erez Aloni
Washington Law Review
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 …
The Class Action As Trust, Sergio J. Campos
The Class Action As Trust, Sergio J. Campos
Washington Law Review
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. …
An "App" For Third Party Beneficiaries, David G. Epstein, Alexandra W. Cook, J. Kyle Lowder, Michelle Sonntag
An "App" For Third Party Beneficiaries, David G. Epstein, Alexandra W. Cook, J. Kyle Lowder, Michelle Sonntag
Washington Law Review
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, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision-making …
The Learned Hand Unformula For Short-Swing Liability, Andrew Chin
The Learned Hand Unformula For Short-Swing Liability, Andrew Chin
Washington Law Review
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 …
Pluralizing The "Sharing" Economy, Erez Aloni
Pluralizing The "Sharing" Economy, Erez Aloni
Washington Law Review
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 …
The Class Action As Trust, Sergio J. Campos
The Class Action As Trust, Sergio J. Campos
Washington Law Review
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. …
The Learned Hand Unformula For Short-Swing Liability, Andrew Chin
The Learned Hand Unformula For Short-Swing Liability, Andrew Chin
Washington Law Review
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 …
Computer Fraud And Abuse Act Enforcement: Cruel, Unusual, And Due For Reform, Tiffany Curtiss
Computer Fraud And Abuse Act Enforcement: Cruel, Unusual, And Due For Reform, Tiffany Curtiss
Washington Law Review
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. …
Put Privity In The Past: A Modern Approach To Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice, Kaitlyn C. Kelly
Put Privity In The Past: A Modern Approach To Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice, Kaitlyn C. Kelly
Washington Law Review
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 …
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, Valerie Walker
Washington Law Review
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, …
Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein
Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein
Washington Law Review
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 …
Taking Bankruptcy Rights Seriously, Rafael I. Pardo
Taking Bankruptcy Rights Seriously, Rafael I. Pardo
Washington Law Review
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 …
The House Edge: On Gambling And Professional Discipline, Stacey A. Tovino
The House Edge: On Gambling And Professional Discipline, Stacey A. Tovino
Washington Law Review
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 …
Gross Error, Eric Berger
Gross Error, Eric Berger
Washington Law Review
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 …
One Percent Procedure, Brooke D. Coleman
One Percent Procedure, Brooke D. Coleman
Washington Law Review
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 …
Gross Error, Eric Berger
Gross Error, Eric Berger
Washington Law Review
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 …
One Percent Procedure, Brooke D. Coleman
One Percent Procedure, Brooke D. Coleman
Washington Law Review
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 …
Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein
Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein
Washington Law Review
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 …
Reputation Through Litigation: How The Legal System Shapes Behavior By Producing Information, Roy Shapira
Reputation Through Litigation: How The Legal System Shapes Behavior By Producing Information, Roy Shapira
Washington Law Review
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 …
Kill The Snitch: How Henriquez-Rivas Affects Asylum Eligibility For People Who Report Serious Gang Crimes To Law Enforcement, James Carr
Washington Law Review
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 …
Legislative Solutions To Stingray Use: Regulating Cell Site Simulator Technology Post-Riley, Ada Danelo
Legislative Solutions To Stingray Use: Regulating Cell Site Simulator Technology Post-Riley, Ada Danelo
Washington Law Review
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 …
State Standing To Challenge Federal Authority In The Modern Administrative State, Shannon M. Roesler
State Standing To Challenge Federal Authority In The Modern Administrative State, Shannon M. Roesler
Washington Law Review
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 …
Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt
Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt
Washington Law Review
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 …
Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt
Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt
Washington Law Review
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 …
Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein
Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein
Washington Law Review
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 …
Judicial Lobbying, J. Jonas Anderson
Judicial Lobbying, J. Jonas Anderson
Washington Law Review
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 …
Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein
Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein
Washington Law Review
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 …