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Washington Law Review

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Reflections On The Restatement Of The Law Of American Indians, Matthew L.M. Fletcher Oct 2022

Reflections On The Restatement Of The Law Of American Indians, Matthew L.M. Fletcher

Washington Law Review

No abstract provided.


Protection For Indian Sacred Sites, William A. Fletcher Oct 2022

Protection For Indian Sacred Sites, William A. Fletcher

Washington Law Review

No abstract provided.


Why Our Stories Matter: A Perspective On The Restatement From The State Bench, Raquel Montoya-Lewis Oct 2022

Why Our Stories Matter: A Perspective On The Restatement From The State Bench, Raquel Montoya-Lewis

Washington Law Review

No abstract provided.


Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson Oct 2022

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 Oct 2022

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 Oct 2022

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, …


Renewing The Vagueness Challenge To Crimes Involving Moral Turpitude, Melissa London Jun 2022

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 …


Copyright Protection For Works In The Language Of Life, Nina Srejovic Jun 2022

Copyright Protection For Works In The Language Of Life, Nina Srejovic

Washington Law Review

In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their DNA. At the time, a Copyright Office spokesperson pointed out that a person’s DNA “is not an original work of authorship.” That statement is no longer self-evident. A scientist claims to have used CRISPR technology to create a pair of twin girls with human-altered DNA that may provide immunity to HIV infection and improved cognitive function. Through gene therapy, doctors can “author” changes to patients’ DNA to cure disease. Scientists “edit” …


Textualism As Fair Notice?, Benjamin Minhao Chen Jun 2022

Textualism As Fair Notice?, Benjamin Minhao Chen

Washington Law Review

The opportunity to know the law is one of the bedrocks of legality. It is also a powerful and attractive reason for giving statutory language the meaning it has in everyday discourse. To do otherwise would be to hide the law from those it governs.

Or so the argument goes. Despite its intuitive force, the fair notice argument for textualism is vulnerable to two challenges. The first challenge is to the notion that fair notice requires congruence between ordinary and legal meaning. There is no normative gauge for determining the time and expense people ought to spend learning their legal …


Procedural Environmental Justice, Jonathan Skinner-Thompson Jun 2022

Procedural Environmental Justice, Jonathan Skinner-Thompson

Washington Law Review

Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called meaningful involvement in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision- making. Especially in the environmental arena, regulatory decisions are often …


Victims As Instruments, Rachel J. Wechsler Jun 2022

Victims As Instruments, Rachel J. Wechsler

Washington Law Review

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court’s 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims’ participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims …


The Chorus Doctrine: Promoting Sub-National Diplomacy In Regional Growth Management, Conor J. Mannix Jun 2022

The Chorus Doctrine: Promoting Sub-National Diplomacy In Regional Growth Management, Conor J. Mannix

Washington Law Review

Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province of foreign policy scholarship, paradiplomacy touches on several legal issues, particularly where sovereignty and legal frameworks collide. In the United States, the federal system established by the Constitution gives individual states plenary power but reserves international relations to the federal government through the Supremacy Clause. However, the lines between federal power and state power with regards to international relations remain fuzzy.

Sub-national actors are taking advantage of this lack of sharply …


Advising 101 For The Growing Field Of Social Media Influencers, Stasia Skalbania Jun 2022

Advising 101 For The Growing Field Of Social Media Influencers, Stasia Skalbania

Washington Law Review

The Federal Trade Commission (FTC) protects consumers from unfair and deceptive business practices. In 2019, the FTC released the “Disclosures 101 for Social Media Influencers Guide” (herein referred to as the “2019 Influencer Guide”). The 2019 Influencer Guide outlines advertisers’ and endorsers’ specific responsibilities relating to the advertising and marketing of products on social media platforms. Despite the extensive information provided within the 2019 Influencer Guide, there is still great confusion regarding endorsement disclosure requirements, and many brands and influencers are not in compliance with FTC recommendations. This Comment provides guidance to brands and social media influencers on how to …


Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper Mar 2022

Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper

Washington Law Review

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).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when …


How Should Inheritance Law Remediate Inequality?, Felix B. Chang Mar 2022

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, …


The Dignitary Confrontation Clause, Erin Sheley Mar 2022

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 …


Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0 Mar 2022

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 …


The New Bailments, Danielle D’Onfro Mar 2022

The New Bailments, Danielle D’Onfro

Washington Law Review

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 …


Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater Mar 2022

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Washington Law Review

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.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …


Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord Mar 2022

Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord

Washington Law Review

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 …


You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue Dec 2021

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 …


Hostile Restructurings, Diane L. Dick Dec 2021

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, …


Autonomous Corporate Personhood, Carla L. Reyes Dec 2021

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 Dec 2021

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 Dec 2021

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 …


Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone Dec 2021

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

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 …


Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman Dec 2021

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

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 …


The Federal Option: Delaware As A De Facto Agency, Omari Scott Simmons Oct 2021

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 Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi Oct 2021

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

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 …


Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson Oct 2021

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 …