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Washington Law Review

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Full-Text Articles in Law

Taxing Selling Partners, Emily Cauble Mar 2019

Taxing Selling Partners, Emily Cauble

Washington Law Review

When a partner sells a partnership interest, the resulting gain or loss is treated as capital gain or loss, except to the extent that the partnership holds certain items whose sale would result in gain or loss that was not capital. Seemingly, the purpose of this regime is to prevent taxpayers from obtaining more favorable treatment by selling an interest in a partnership than what would result if the partnership were to sell its underlying assets. But given this legislative aim, the existing tax provisions produce results for taxpayers that are both unduly favorable (in that sale of a partnership ...


An Empirical Study Of Fast-Food Franchsing Contracts: Towards A New "Intermediary" Theory Of Joint Employment, Kati L. Griffith Mar 2019

An Empirical Study Of Fast-Food Franchsing Contracts: Towards A New "Intermediary" Theory Of Joint Employment, Kati L. Griffith

Washington Law Review

The “Fight for Fifteen and a Union” movement among fast-food workers and their allies has raised awareness about wage inequality in the United States. Rather than negotiating for better wages and working conditions with economically weak restaurant-level franchisees, the movement aims to affect the practices of what they view as the all-powerful brands—the franchisors. Few would dispute the notion that the franchisor brands, not their franchisees, set industry-wide standards and, thus, have the ability to offset rising wage inequality and improve working conditions. And yet, the movement has raised controversial law and policy questions about the legal responsibilities of ...


Veil Piercing And The Untapped Power Of State Courts, Catherine A. Hardee Mar 2019

Veil Piercing And The Untapped Power Of State Courts, Catherine A. Hardee

Washington Law Review

The U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court’s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has ...


Who Decides Fair Use–Judge Or Jury?, Ned Snow Mar 2019

Who Decides Fair Use–Judge Or Jury?, Ned Snow

Washington Law Review

For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent. Oracle raises a fundamental question in jurisprudence: Who should decide an ...


Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever Mar 2019

Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever

Washington Law Review

Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve ...


What Do You Know? Discovering Document Compilations In 39(B)(6) Depositions, Sara Leonetti Mar 2019

What Do You Know? Discovering Document Compilations In 39(B)(6) Depositions, Sara Leonetti

Washington Law Review

The work product doctrine emerged as a judicially created, practical solution to resolve problems inherent in the Federal Rules of Civil Procedure (FRCP). While the FRCP famously sought to broaden discovery and increase parties’ access to information, the rules infamously failed to prevent attorneys from discovering each other’s work product. For policy reasons—primarily to keep some semblance of the adversarial system—the U.S. Supreme Court created work product qualified immunity to prevent attorneys from discovering their opponents’ work, mental impressions, and legal strategies. At the end of the twentieth century, courts significantly extended the work product doctrine ...


Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz Mar 2019

Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz

Washington Law Review

Football is a staple in many American households: each week, millions watch the game. Every year, National Football League athletes benefit by taking advantage of this passion, not only by earning millions of dollars in salary, but also by signing lucrative endorsement deals. While success on the field is a starting point, an athlete with a captivating personality stands to gain even more financially. A unique end zone celebration that captures fans’ hearts contributes to that personality and makes the player more marketable. In 2017, after announcing plans to relax the rules against end zone celebrations, the National Football League ...


Striking A Balance: Privacy And National Security In Section 702 U.S. Person Queries, Brittany Adams Mar 2019

Striking A Balance: Privacy And National Security In Section 702 U.S. Person Queries, Brittany Adams

Washington Law Review

The transformation of U.S. foreign intelligence in recent years has led to increasing privacy concerns. The Foreign Intelligence Surveillance Act of 1978 (FISA) traditionally regulated foreign intelligence surveillance by authorizing warrant-based searches of U.S. and non-U.S. persons. Individualized court orders under traditional FISA were intended to protect U.S. persons and limit the scope of intelligence collection. In a post-9/11 world, however, the intelligence community cited concerns regarding the speed and efficiency of collection under traditional methods. The intelligence and law enforcement communities recognized the “wall” preventing information sharing between the communities as a central failure ...


Patent Law And The Emigration Of Innovation, Gregory Day, Steven Udick Mar 2019

Patent Law And The Emigration Of Innovation, Gregory Day, Steven Udick

Washington Law Review

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. Because, however, patent law is bound by strict territorial limitations, one cannot strengthen patent protection by innovating abroad; as a result, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent. In essence, then, there is a debate pitting industry leaders against scholarship about whether firms can use offshore innovation to secure stronger patent rights, influencing the rate of innovation. To resolve this puzzle, we offer a novel theory of patent rights—which ...


Crashworthy Code, Bryan H. Choi Mar 2019

Crashworthy Code, Bryan H. Choi

Washington Law Review

Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb. Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the ...


Privacy's Double Standards, Scott Skinner-Thompson Dec 2018

Privacy's Double Standards, Scott Skinner-Thompson

Washington Law Review

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. This Article unearths disparate outcomes in public disclosure tort ...


Stop And Frisk In A Concealed Carry World, Shawn E. Fields Dec 2018

Stop And Frisk In A Concealed Carry World, Shawn E. Fields

Washington Law Review

This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts ...


Reversing The Reliance Revolution In Contract, Eric Alden Dec 2018

Reversing The Reliance Revolution In Contract, Eric Alden

Washington Law Review

During the past century, leading American academics have attempted to rewrite in radically altered form the theoretical foundation of liability in contract. In derogation of the historical bases for contractual liability in Anglo-American law, namely voluntary mutual exchange and “formal” contract, these intellectual revolutionaries desire to impose strict liability in contract on the basis of unilateral, unbargained-for reliance. The centerpiece of this revisionist effort has been the novel and artificial doctrine of “promissory estoppel,” first advanced by Williston and Corbin in the Restatement of the Law of Contracts published in 1932. The invention of this doctrine has been accompanied by ...


Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon Dec 2018

Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon

Washington Law Review

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of ...


The Multiple Justifications Of Occupational Licensing, Nick Robinson Dec 2018

The Multiple Justifications Of Occupational Licensing, Nick Robinson

Washington Law Review

Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational ...


Privacy Localism, Ira S. Rubinstein Dec 2018

Privacy Localism, Ira S. Rubinstein

Washington Law Review

Privacy law scholarship often focuses on domain-specific federal privacy laws and state efforts to broaden them. This Article provides the first comprehensive analysis of privacy regulation at the local level (which it dubs “privacy localism”), using recently enacted privacy laws in Seattle and New York City as principal examples. Further, this Article attributes the rise of privacy localism to a combination of federal and state legislative failures and three emerging urban trends: the role of local police in federal counterterrorism efforts; smart city and open data initiatives; and demands for local police reform in the wake of widely reported abusive ...


Unrealistic Expectations: The Federal Government's Unachievable Mandate For State Cannabis Regulation, Rebecca Sweeney Dec 2018

Unrealistic Expectations: The Federal Government's Unachievable Mandate For State Cannabis Regulation, Rebecca Sweeney

Washington Law Review

The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act ...


To Withdraw Or Not To Withdraw: Reviewability Of An Agency's Withdrawn Proposed Rule, Jane E. Carmody Dec 2018

To Withdraw Or Not To Withdraw: Reviewability Of An Agency's Withdrawn Proposed Rule, Jane E. Carmody

Washington Law Review

Federal agencies propose thousands of regulations in any given year. The Administrative Procedure Act requires such agencies to follow certain procedures when enacting rules and regulations. However, when an agency proposes a new rule that is purely discretionary—not mandated by Congress—it may withdraw the proposed rule at any point before the rule is finalized. In October 2017, the Centers of Medicare and Medicaid (CMS) withdrew a proposed rule that, if enacted, would have required long-term care facilities to recognize out of state same-sex marriages as a condition of Medicare and Medicaid participation. In its formal withdrawal published in ...


Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze Dec 2018

Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze

Washington Law Review

A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes within ...


Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver Dec 2018

Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver

Washington Law Review

The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or ...


Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann Dec 2018

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Washington Law Review

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the ...


Danger Ahead: Risk Assessment And The Future Of Bail Reform, John Logan Koepke, David G. Robinson Dec 2018

Danger Ahead: Risk Assessment And The Future Of Bail Reform, John Logan Koepke, David G. Robinson

Washington Law Review

In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people—particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate ...


Are Beach Bondaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle Oct 2018

Are Beach Bondaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle

Washington Law Review

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would have a significant impact on public access. This Article explores the possibility that courts and the public can put an end to the beach privatization movement simply by pointing to the common law of waterfront ...


Emojis And The Law, Eric Goldman Oct 2018

Emojis And The Law, Eric Goldman

Washington Law Review

Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail. Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them. One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally ...


Does Small Group Health Insurance Deliver Group Benefits? An Argument In Favor Of Allowing The Small Group Market To Die, John Aloysius Cogan Jr. Oct 2018

Does Small Group Health Insurance Deliver Group Benefits? An Argument In Favor Of Allowing The Small Group Market To Die, John Aloysius Cogan Jr.

Washington Law Review

The small group health insurance market is failing. Today, fewer than one-third of small firms now offer health insurance and the number of people covered by small group insurance continues to drop. These problems invite the obvious question: What should be done about the small group market? Past scholarship on the small group market has largely focused on documenting the market’s problems, evaluating the effectiveness of prior reform efforts, and proposing regulatory changes to stabilize the market. This Article takes a different approach to the small group problem by asking a previously unasked question: Does the small group market ...


The Legal Monopoly, Renee Newman Knake Oct 2018

The Legal Monopoly, Renee Newman Knake

Washington Law Review

Lawyers enjoy an exclusive monopoly over their craft, one unlike any other profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed. Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition ...


Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey Oct 2018

Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey

Washington Law Review

In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an ...


A Stute Observation: Re-Examining Washington's Enforcement Of Workplace Safety Regulations, Ben Moore Oct 2018

A Stute Observation: Re-Examining Washington's Enforcement Of Workplace Safety Regulations, Ben Moore

Washington Law Review

In 1973, the Washington State Legislature enacted the Washington Industrial Safety and Health Act. The stated purpose of the Act was to ensure safe working conditions for the working men and women of Washington. Seventeen years later, the Washington State Supreme Court held that general contractors are per se liable for the WISHA violations of their subcontractors. However, the Washington Department of Labor and Industries has adopted a policy of citing general contractors for subcontractor violations only in limited circumstances. This Comment first outlines the development of worker safety laws in Washington, then examines the effects of the Department’s ...


Threading The First Amendment Needle: Anonymous Speech, Online Harassment, And Washington's Cyberstalking Statute, Sarah E. Smith Oct 2018

Threading The First Amendment Needle: Anonymous Speech, Online Harassment, And Washington's Cyberstalking Statute, Sarah E. Smith

Washington Law Review

This Comment examines the constitutionality of Washington’s cyberstalking statute, RCW 9.61.260, and its treatment of anonymous online speech. While the statute was drafted to ensure that women are free from domestic and gender-based violence, the statute as currently written and enforced infringes on the constitutionally protected right to free speech. There has only been one action, Moriwaki v. Rynearson, enforcing the provision of the statute related to anonymous speech. The court ultimately overturned the stalking protection order, which the plaintiff brought to halt political speech, on First Amendment grounds. While the Moriwaki court concluded that the stalking ...


Flight And Federalism: Federal Preemption Of State And Local Drone Laws, Nicholas Cody Oct 2018

Flight And Federalism: Federal Preemption Of State And Local Drone Laws, Nicholas Cody

Washington Law Review

Small, unmanned aircraft referred to as “drones” are becoming increasingly common in the skies above the United States. Their increasing ubiquity has been driven by the wide variety of industries and tasks to which they can be applied, but it has also drawn the attention of government. Where Amazon.com sees the potential for packages delivered in thirty minutes or less, governments see crowded skies and clumsy pilots, to name only two potential risks associated with the widespread integration of drones into the national airspace. To that end, just as Amazon.com has ambitiously made use of the technology, state ...