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Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

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 …

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Washington Law Review

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.

Holistically, …

Hostile Restructurings, Diane L. Dick

Washington Law Review

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, …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

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 …

The Federal Option: Delaware As A De Facto Agency, Omari Scott Simmons

Washington Law Review

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 …

The Euclid Proviso, Ezra Rosser

Washington Law Review

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 …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

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 …

Health Care Fraud Means Never Having To Say You're Sorry, Jacob T. Elberg

Washington Law Review

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 …

Bully No More: Why Trademark Owners Engage In Trademark Overreach And How To Prevent It, Quynh La

Washington Law Review

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 …

Finding Better Words: Markets, Property, Rights, And Resources, Andrew P. Morriss, Roger Meiners, Bruce Yandle

Washington Journal of Environmental Law & Policy

To use or conserve environmental and natural resources effectively is complex. Many economists believe that institutional solutions built around markets and property rights can help improve results. This approach addresses what Peruvian economist Hernando de Soto termed the “missing lessons of U.S. history”— institutions whose designers may not have understood the outcomes that would occur, but the results were generally beneficial. However, technical economic analysis generally fails to persuade many at the policy level. Adding a focus on the practicality of solving issues by voluntary action will enrich the policy discussions. To do so requires economists to provide concrete examples …

Finding Better Words: Markets, Property, Rights, And Resources, Andrew P. Morriss, Roger E. Meiners, Bruce Yandle

Washington Journal of Environmental Law & Policy

To use or conserve environmental and natural resources effectively is complex. Many economists believe that institutional solutions built around markets and property rights can help improve results. This approach addresses what Peruvian economist Hernando de Soto termed the “missing lessons of U.S. history”— institutions whose designers may not have understood the outcomes that would occur, but the results were generally beneficial. However, technical economic analysis generally fails to persuade many at the policy level. Adding a focus on the practicality of solving issues by voluntary action will enrich the policy discussions. To do so requires economists to provide concrete examples …

Commercializing Cannabis: Confronting The Challenges And Uncertainty Of Trademark And Trade Secret Protection For Cannabis-Related Businesses, John Mixon

Washington Journal of Law, Technology & Arts

Over the last couple of decades, society has become more accepting of recreational cannabis and an ever-growing number of states have passed pro-cannabis legislation. With this change, the cannabis industry has, to some extent, exploded into a booming enterprise in states that have legalized marijuana. Nonetheless, cannabis' status as a Schedule I banned substance under the Controlled Substances Act of 1970 remains unchanged. As a result, businesses in the cannabis industry face the unique challenge of having to toe the line between "legally" operating under state law and violating federal law, which trumps state law. One particular situation in which …

Making The Minimum Wage Work: An Examination Of The Economic Impact Of The Minimum Wage, Steve P. Calandrillo, Taylor Halperin

Articles

With the passage of the Fair Labor Standards Act in 1938, Congress mandated a federal “living wage” in order to “maintain the minimum standard of living necessary for the health, efficiency, and general well-being of workers.” Advocates have long insisted that increases in the minimum wage result in a net gain to employees’ standard of living. Critics have countered that those gains come at the expense of higher prices and shrinking overall employment numbers, leaving a new class of potential workers out in the cold.

This Article synthesizes the empirical economic impact data from minimum wage increases over the past …

Coping With Uncertainty: Cost-Benefit Analysis, The Precautionary Principle, And Climate Change, Daniel A. Farber

Washington Law Review

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 …

Disclosure As Distribution, Jeremy N. Sheff

Washington Law Review

This brief response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors’ implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any …

Promoting Democracy In Prosecution, Russell M. Gold

Washington Law Review

Voters were meant to check prosecutors’ decisions, but that check has eroded because voters lack the information necessary to cast meaningful votes in prosecutor elections. Voters’ lack of an effective political check on prosecutors causes two related problems: (1) inefficient allocation of prosecutorial resources and (2) divestment of democratic sovereignty from the people. Prosecutors currently need not consider expenditures for incarceration or public defense because voters never see these costs and thus cannot hold their prosecutors accountable for them. Accordingly, these costs become an externality in the prosecutorial decision-making process, causing prosecutors to spend resources in socially inefficient ways. To …

Promoting Democracy In Prosecution, Russell M. Gold

Washington Law Review

Voters were meant to check prosecutors’ decisions, but that check has eroded because voters lack the information necessary to cast meaningful votes in prosecutor elections. Voters’ lack of an effective political check on prosecutors causes two related problems: (1) inefficient allocation of prosecutorial resources and (2) divestment of democratic sovereignty from the people. Prosecutors currently need not consider expenditures for incarceration or public defense because voters never see these costs and thus cannot hold their prosecutors accountable for them. Accordingly, these costs become an externality in the prosecutorial decision-making process, causing prosecutors to spend resources in socially inefficient ways. To …

Allocating The Costs Of The Climate Crisis: Efficiency Versus Justice, Amy Sinden

Washington Law Review

In the international negotiations aimed at reaching an agreement to reduce the greenhouse-gas emissions that are driving global warming, the developed and developing countries are talking past each other. The developed world is speaking the language of efficiency, while the developing world speaks the language of justice. Economic theory and the concept of efficiency are fine for answering the question of who should reduce, but that is not the contentious issue. When it comes to the hotly contested issue of who should pay, economic theory offers no guidance, and the developing world is right to insist that we look to …

Baseball's Moral Hazard: Law, Economics, And The Designated Hitter Rule, Dustin E. Buehler, Steve P. Calandrillo

Articles

No subject prompts greater disagreement among baseball fans than the designated hitter rule, which allows teams to designate a player to hit for the pitcher. The rule increases the number of hit batsmen, and some have suggested this effect is a result of "moral hazard," which recognizes that persons insured against risk are more likely to engage in dangerous behavior. Because American League pitchers do not bat, they allegedly are not deterred by the full cost of making risky, inside pitches—namely, retribution during their next at bat.

Using a law-and-economics approach, this Article concludes that the designated hitter rule creates …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law And Economics, Steve P. Calandrillo

Articles

The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution's Due Process Clause presumptively …

Time Well Spent: An Economic Analysis Of Daylight Saving Time Legislation, Steve P. Calandrillo, Dustin E. Buehler

Articles

Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last thirty years. While congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored.

This Article …

The Role Of Rights In Benefit Cost Methodology: The Example Of Salmon And Hydroelectric Dams, Richard O. Zerbe Jr., Linda J. Graham

Washington Law Review

Benefit cost analysis is a well-established technique for assessing the impacts of proposed actions. Accurate benefit cost analysis is essential to making informed decisions through an understanding of the trade-offs involved in alternative actions. This Article presents a methodology for improving current benefit cost techniques and hence the usefulness of benefit cost analysis to decisionmakers. The proposed methodology is based on recognition of the roles of legal rights and psychological expectations in benefit cost analysis. Proper consideration of these rights and expectations is critical to an accurate determination of how benefits and costs are measured and whose interests are included …

Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen

Washington Law Review

Professors Swygert and Yanes seek to bring efficiency and equity to bear explicitly on the economic analysis of law by merging Rawlsean social contract philosophy into law and economics' basic premise, the Coase Theorem. We are in complete agreement with Swygert and Yanes that good legal policy should be concerned with both efficiency and equity, and we welcome their attempt to merge the two as a useful step in an important debate. Ultimately, though, we are unconvinced by their argument as it currently stands for two reasons. First, by focusing only on the way in which their approach might affect …

Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.

Washington Law Review

Swygert and Yanes, in an article in this issue of the Washington Law Review, suggest a means to achieve this integration. In this Article, I first discuss the shortcomings of the approach suggested by Swygert and Yanes. Next, I suggest a more practical approach for integrating efficiency and equity that relies on benefit cost analysis. Finally, I consider some of the cases to which Swygert and Yanes apply their analysis. The fundamental shortcoming of the Swygert and Yanes approach is that it offers little for deciding practical cases. The authors combine two abstract and heuristic proposals and quite naturally …

Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes

Washington Law Review

An idea generally shared by both economists and philosophers is that a legal rule may either achieve distributive fairness or bring about an efficient outcome, but not both. In this Article, the authors argue that justice requires that legal rules consider both fairness and efficiency. The Article discusses the Coase Theorem, as a tool for determining the most efficient allocation of rights and duties, and the ideas of John Rawls for deriving a fair social contract. The authors then combine aspects of these two hypothetical consensus models into a unified theory of justice that considers the question of what agreements …

An Economic Analysis Of Intellectual Property Rights: Justifications And Problems Of Exclusive Rights, Incentives To Generate Information, And The Alternative Of A Government Run Reward System, Steve Calandrillo

Articles

This article examines and questions the traditional justifications for intellectual property (I.P.) rights in America (focusing on copyright and patent law), and explores incentives necessary to induce the creation of these works of information. I conclude that changes are needed to I.P. law in order to best foster society's dual goals of 1) promoting incentives to create I.P. works (such as currently patented drugs), while also 2) maximizing distribution of those products to all consumers who would stand to gain (and not merely those who can afford the monopoly price charged). Hence, I suggest the creation of a Government-Run Reward …