Law Commons^™

Constitutional Rights Of Artificial Intelligence, Mizuki Hashiguchi

Washington Journal of Law, Technology & Arts

On February 8, 2022, the Italian Parliament approved constitutional amendments to protect the environment. A member of Parliament stated that the environment is an element of Italy, and that safeguarding the environment means safeguarding humans. The need to protect the environment seems to have become a critical component of public conscience. Likewise, if society perceives that artificial intelligence is vitally important for humanity, does constitutional law allow constitutional rights for artificial intelligence to be created?

Extending constitutional rights to artificial intelligence may be consistent with the jurisprudential history of rights. Constitutional rights have undergone metamorphosis over time to protect new …

Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith

Washington Journal of Social & Environmental Justice

No abstract provided.

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

Salvaging Federal Domestic Violence Gun Regulations In Bruen’S Wake, Bonnie Carlson

Washington Law Review

Congress passed two life-saving laws in the mid-1990s: a protection order prohibition, which bars firearm possession for protection order respondents, and the Lautenberg Amendment, which bars firearm possession for those convicted of misdemeanor crimes of domestic violence. Both laws have been repeatedly upheld by federal courts nationwide in the nearly thirty years since their enactment. Both faced renewed constitutional challenges after the United States Supreme Court’s foundation-shifting decision in New York State Rifle & Pistol Ass’n v. Bruen on June 23, 2022. The Lautenberg Amendment has fared well; every court to consider it post-Bruen has upheld it. Courts have …

Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg

Washington Law Review

Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …

Taking The Long Road: The Excessive Fines Clause As A Tool For Protecting Washington's Unsheltered Population, Anna Ferron

Washington Law Review

Over the last decade, Washington State has seen a substantial increase in its unhoused population and an increase in laws that harm this group. Many of these laws subject unhoused and unsheltered people to fines, fees, and forfeitures that are exceedingly difficult for them to afford. The ExcessiveFinesClauses in the United States and Washington Constitutions protect citizens from fines deemed constitutionally excessive and could be used to shield unsheltered people from the burden of paying unjust fines they cannot afford. In City of Seattle v. Long, the Washington State Supreme Court analyzed the ability to pay of a person who …

Reasonable In Time, Unreasonable In Scope: Maximizing Fourth Amendment Protections Under Rodriguez V. United States, Thomas Heiden

Washington Law Review

In Rodriguez v. United States, the Supreme Court held that a law enforcement officer may not conduct a drug dog sniff after the completion of a routine traffic stop because doing so extends the stop without reasonable suspicion in violation of the Fourth Amendment’s prohibition on unreasonable seizures. Tracing the background of Rodriguez from the Supreme Court’s landmark decision in Terry v. Ohio, this Comment argues that Rodriguez is best understood as a reaction to the continued erosion of Fourth Amendment protections in the investigative stop context. Based on that understanding, this Comment argues for a strict reading of Rodriguez, …

Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar

Washington Law Review

Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

The Takings Clause Does Not Prevent The United States From Supporting A Patent Waiver At The Wto But Prevents Domestic Implementation Of The Waiver, Xiang Li

Washington Journal of Law, Technology & Arts

The Biden Administration announced its support for the initiative at the World Trade Organization (WTO) to suspend patent rights protections for COVID-19 vaccines, in the hope of providing equitable and affordable access to the vaccines to low-income countries. Since then, domestic pharmaceutical companies have been voicing vociferous opposition, claiming that “[e]liminating IP protections undermines our global response to the pandemic and compromises safety.”2 Passing a patent waiver at the WTO means eligible member countries can opt to free themselves from the obligations to enforce qualifying patents, and anyone within those countries can accordingly practice the patents without infringement liability. It …

Evaluating Congress's Constitutional Basis To Abolish Felony Disenfranchisement, James E. Lauerman

Washington Law Review

In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by …

Theseus In The Labyrinth: How State Constitutions Can Slay The Procedural Minotaur, Marcus A. Gadson

Washington Law Review

Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee “[t]hat all courts shall be open, and every person, for an injury done him in his person, property …

Individual Home-Work Assignments For State Taxes, Hayes R. Holderness

Washington Law Review

The surge in work-from-home arrangements brought on by the COVID-19 pandemic threatens serious disruptions to state tax systems. Billions of dollars are at stake at this pivotal moment as states grapple with where to assign income earned through these remote work arrangements for tax purposes: the worker’s home or the employer’s location? Some states—intent on modernizing their income tax laws—have assigned such income to the employer’s location, but have faced persistent challenges on both constitutional and policy grounds in response.

This Article provides a vigorous defense against such challenges. The Supreme Court has long interpreted the Constitution to be deferential …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

The Constitutional Imagination Of The Mujahidin: A History And Translation Of Two Constitutions Proposed By Afghan Islamist Militias In The 1990s, Shamshad Pasarlay, Clark Lombardi

Washington International Law Journal

No abstract provided.

Beware What You Google: Fourth Amendment Constitutionality Of Keyword Warrants, Chelsa Camille Edano

Washington Law Review

Many Americans have potentially had their privacy rights invaded through invisible, widespread police searches. In recent years, local and federal governments have compelled Google and other search engine companies to produce the personal information of users who have conducted a search query related to a crime. By using keyword warrants, the government can conduct a dragnet search for suspects, imposing suspicion on users and exposing their personal information. The keyword warrant is a symptom of the erosion of the Fourth Amendment protection against suspicionless searches. Not only is scholarship scarce on keyword warrants, but also instances of these warrants are …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

A Call To Abolish Determinate-Plus Sentencing In Washington, Rachel Stenberg

Washington Law Review

For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual has already served a standard sentence. A review of recent releasability determinations reveals sentences are often extended on arbitrary and inconsistent grounds—especially for individuals who face systemic challenges in prison due to their identity or condition. This Comment shows that the criteria to determine whether individuals are releasable is an incomplete picture of their actual experience in the carceral setting, using the distinct example of incarcerated individuals with mental illness. While …

Obstacles To Proving 24-Hour Lighting Is Cruel And Unusual Under Eighth Amendment Jurisprudence, Lauren Jaech

Washington Law Review

Twenty-four-hour lighting causes sleep deprivation, depression, and other serious disorders for incarcerated individuals, yet courts often do not consider it to be cruel and unusual. To decide if prison conditions violate the Eighth Amendment’s prohibition against cruel and unusual punishment, courts follow a two-part inquiry that requires examining the intent of prison officials (known as the subjective prong) as well as the degree of seriousness of the alleged cruel or unusual condition (the objective prong). Incarcerated individuals often file complaints challenging 24-hour lighting conditions. Whether they succeed on these claims may depend on the circuit in which they reside. Judges …

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

Off-Reservation Treaty Hunting Rights, The Restatement, And The Stevens Treaties, Ann E. Tweedy

Washington Law Review

The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to sections 83 and 6 of the Restatement, this Article explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this Article explores the potential usefulness of historical law in interpreting treaties, the need to tie treaty interpretation to the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the Indian canons, …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

Renewing The Vagueness Challenge To Crimes Involving Moral Turpitude, Melissa London

Washington Law Review

Noncitizens who have been convicted of a “crime involving moral turpitude” (CIMT) under the Immigration and Nationality Act (INA) can be deported. However, the INA fails to provide a definition for “moral turpitude” or a list of crimes that necessarily involve “moral turpitude.” As a result, judges are given wide discretion to decide when a crime is morally reprehensible enough to render a noncitizen deportable. This moral determination in the CIMT analysis has led to disparate results among the lower courts, which deprives noncitizens of meaningful notice of what conduct could render them deportable. In 1951, the Supreme Court held …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

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 …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

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 …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

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, …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

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 …