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University of Washington School of Law

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Full-Text Articles in Law

Transitioning From Gilti To Fdii? Foreign Branch Income Issues, Jeffery M. Kadet, David L. Koontz Jan 2019

Transitioning From Gilti To Fdii? Foreign Branch Income Issues, Jeffery M. Kadet, David L. Koontz

Articles

In this article, Kadet and Koontz explain the risks and benefits multinationals must consider in deciding whether to transition some operations conducted within a controlled foreign corporation (along with the associated income) into a domestic group member to achieve a structure that qualifies for foreign-derived intangible income.


Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said Jan 2019

Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said

Articles

This qualitative empirical research project studies Seattle’s craft brewing industry as a thriving entrepreneurial ecosystem that displays widespread collaboration and innovation. Drawing on data collected in 22 face-to-face formal interviews conducted with industry participants, the Article explores the community’s attitudes, practices, and norms with respect to collaboration and intellectual property (IP). It joins a growing body of qualitative empirical IP scholarship that maps misalignments between law and practice “on the ground,” seeking to offer a more accurate and pluralistic account of an innovative industry. The craft brewing community in Seattle cooperates extensively while continuing to compete actively for ...


Privacy Law's Indeterminacy, Ryan Calo Jan 2019

Privacy Law's Indeterminacy, Ryan Calo

Articles

American legal realism numbers among the most important theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis—a key concept of American legal realism—and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself


Peace And Subjectivity, Louis E. Wolcher Jan 2019

Peace And Subjectivity, Louis E. Wolcher

Articles

So long as there is law there can be no universal human right to peace. This is because legalized violence, whether in threat or in deed, constitutes the very antithesis of peaceful relations from the point of view of those whom law represses. Law cannot define peace as the absence of all violence—and still less as the absence of all legalized suffering—without gainsaying justice, for as Pascal says, “Justice without might is helpless; might without justice is tyrannical.” Although legal outcomes, like falling boulders and pouncing lions, can always be imputed to historical causes, experience teaches that legal ...


The Surprising Reach Of Fda Regulation Of Cannabis Even After Rescheduling, Sean M. O'Connor, Erika Lietzan Jan 2019

The Surprising Reach Of Fda Regulation Of Cannabis Even After Rescheduling, Sean M. O'Connor, Erika Lietzan

Articles

As more states legalize cannabis, the push to “deschedule” it from the Controlled Substances Act is gaining momentum. At the same time, the Food and Drug Administration (FDA) recently approved the first conventional drug containing a cannabinoid derived from cannabis—cannabidiol (CBD) for two rare seizure disorders. This would all seem to bode well for proponents of full federal legalization of medical cannabis. But some traditional providers are wary of drug companies pulling medical cannabis into the regular small molecule drug development system. The FDA’s focus on precise analytical characterization and on individual active and inactive ingredients may be ...


Bringing The Court Into The Classroom: Suggestions For How To Craft Exercises For Upper-Level Courses Using Real Practitioners' Briefs, Benjamin Halasz Jan 2019

Bringing The Court Into The Classroom: Suggestions For How To Craft Exercises For Upper-Level Courses Using Real Practitioners' Briefs, Benjamin Halasz

Articles

When I came to teach after practicing for over a decade, I wanted my students to learn to write by using materials from real clients and cases. I quickly found that’s easier said than done. But through experimentation and discussions with experienced colleagues, I found several successful ways to put students into the role of writing parts of a “real” brief—one that uses a real case and real facts—for short, in-class exercises in upper-level courses.

Several articles tout the benefits of using briefs as examples, an enthusiasm I join. But this article focuses on using cases, and ...


Commuting To Mars: A Response To Professors Abraham And Rabin, Ryan Calo Jan 2019

Commuting To Mars: A Response To Professors Abraham And Rabin, Ryan Calo

Articles

The remarks that follow are less about the particular wisdom of manufacturer enterprise responsibility (MER) for driverless cars, and more about the limits of legal scholarship in grappling with unfolding technologic change. The contingency of technology and its social impacts caution against sweeping interventions. And the role of law and technology scholarship—as opposed to legal scholarship that touches upon technology—is arguably to recognize the unique challenges that arise at this intersection.


Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan Jan 2019

Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan

Articles

Eight percent—that is the percentage of women who serve on the boards of directors of private high technology companies. Private companies, particularly high technology companies, have transformed citizens’ daily lives, while the unprecedented availability of private capital has allowed those companies to remain private longer. This rise, however, has also obscured some of the weaknesses of private companies, which are not subject to public disclosure and regulatory oversight: rampant sexual harassment, the lack of women leaders in technology companies, the relative absence of female venture capitalists, and the dearth of female board members, to name a few. Yet thus ...


Letter From Jeffery M. Kadet And David L. Koontz To Internal Revenue Serv. (Aug. 20, 2019) On Notice Of Proposed Rulemaking: Classification Of Cloud Transactions And Transactions Involving Digital Content, Jeffery M. Kadet, David L. Koontz Jan 2019

Letter From Jeffery M. Kadet And David L. Koontz To Internal Revenue Serv. (Aug. 20, 2019) On Notice Of Proposed Rulemaking: Classification Of Cloud Transactions And Transactions Involving Digital Content, Jeffery M. Kadet, David L. Koontz

Articles

No abstract provided.


International Lobbying Law, Melissa J. Durkee Jan 2018

International Lobbying Law, Melissa J. Durkee

Articles

An idiosyncratic array of international rules allows “consultants” to gain special access to international officials and lawmakers. Historically, many of these consultants were public-interest associations like Amnesty International. For this reason, the access rules have been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But a focus on the classic public-law virtues of democracy and legitimacy produces a theory at odds with the facts: Many of these international consultants are now industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their corporate clients ...


The Flipside Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen Jan 2018

The Flipside Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen

Articles

This Article explores the flipside of Michigan--where the Court's logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and--like cost--deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate.

In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget. In support of that thesis, this ...


Profit-Split Method: Time For Countries To Apply A Standardized Approach, Jeffery M. Kadet, Tommaso Faccio, Sol Picciotto Jan 2018

Profit-Split Method: Time For Countries To Apply A Standardized Approach, Jeffery M. Kadet, Tommaso Faccio, Sol Picciotto

Articles

Now that the OECD has issued its final guidance on the action 10 profit-split method, individual countries must determine how they might consider and apply the profit-split method.

It’s true that some countries have large and well-staffed transfer pricing audit groups that include economists and other tax professionals knowledgeable in the application of transfer pricing principles and rules. However, those resources are never enough to match the legions of specialists that can be deployed by large multinational groups.

The situation is even worse elsewhere. Most countries not only have significant resource and personnel constraints, but they also simply do ...


“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins Jan 2018

“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins

Articles

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish ...


Freedom In Structure: Helping Foreign-Trained And International Graduate Students Develop Thesis Statements By Component, Elizabeth R. Baldwin Jan 2018

Freedom In Structure: Helping Foreign-Trained And International Graduate Students Develop Thesis Statements By Component, Elizabeth R. Baldwin

Articles

This article explains how foreign-trained and international graduate students can use a thesis development template to find and articulate narrow, novel, non-obvious, and useful claims for their final, academic papers in law. These students, in particular, are in need of clear direction and methods for crafting well-developed claims (or thesis statements), given that many are non-native speakers of English who trained in different legal and educational systems with different expectations about what constitutes good academic writing—in any genre, let alone law. Through the use of a thesis development template (adapted from writing advice by Joseph M. Williams and Eugene ...


Protecting Offshore Areas From Oil And Gas Leasing: Presidential Authority Under The Outer Continental Shelf Lands Act And The Antiquities Act, Robert T. Anderson Jan 2018

Protecting Offshore Areas From Oil And Gas Leasing: Presidential Authority Under The Outer Continental Shelf Lands Act And The Antiquities Act, Robert T. Anderson

Articles

For over one hundred years, presidents of both parties have used executive power to protect America’s lands and waters. Until the second half of the twentieth century, however, little attention was given to protecting the marine ecosystem. Federal authority reaches out to two hundred miles or more in the oceans off the United States, covering an area known as the Outer Continental Shelf. Federal interest in the area historically focused on developing oil and gas reserves and ensuring that the area was open to trade and commerce. The area is also very important for indigenous subsistence uses and commercial ...


Letter From Jeffery M. Kadet And David L. Koontz To The Internal Revenue Serv. (June 5, 2018) On Notice 2018-43, 2018-2019 Priority Guidance Plan Regulatory And Ruling Guidance Concerning Various International Tax Issues, Jeffery M. Kadet, David L. Koontz Jan 2018

Letter From Jeffery M. Kadet And David L. Koontz To The Internal Revenue Serv. (June 5, 2018) On Notice 2018-43, 2018-2019 Priority Guidance Plan Regulatory And Ruling Guidance Concerning Various International Tax Issues, Jeffery M. Kadet, David L. Koontz

Articles

A principal focus of our suggestions is the modernization and updating of regulations as well as providing guidance that will affect the many multinational corporations (MNCs) whose operations take place partially or wholly within the U.S. Many of these MNCs have embarked on complicated and legalistic schemes whose primary purpose is to shift profits without any real operational changes and to record those profits within zero- and low-taxed foreign members. Importantly, this includes not only U.S.-based MNCs, but also the many inverted MNCs that structured their inversions to remain untouched by the §7874 anti-inversion rules.


Indigenous Rights To Water & Environmental Protection, Robert T. Anderson Jan 2018

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

Articles

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in ...


Amending Codes Of Judicial Conduct To Impose Campaign Contribution And Expenditure Limits On Judicial Campaigns, Hugh D. Spitzer, Philip A. Talmadge Jan 2018

Amending Codes Of Judicial Conduct To Impose Campaign Contribution And Expenditure Limits On Judicial Campaigns, Hugh D. Spitzer, Philip A. Talmadge

Articles

Every judicial campaign year, millions of dollars pour into individual court races around the country. The bulk of that money is donated by lawyers, businesses, and others with financial interests in how judges, especially appellate judges, decide cases. United States Supreme Court rulings on political contributions and spending have hamstrung the ability of states to control larges-cale expenditures in judicial races. This essay reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public's perception of court impartiality. It describes how legislatures and courts have addressed ...


Sourcing Rule Change: Manufacturing And Competitiveness, Jeffery M. Kadet Jan 2018

Sourcing Rule Change: Manufacturing And Competitiveness, Jeffery M. Kadet

Articles

In this article, Kadet explains how the Tax Cuts and Jobs Act favors foreign-based manufacturers selling through a U.S. sales branch over comparable U.S. manufacturers, and he recommends legislative fixes.


A Long-Standing Debate: Reflections On Risk And Anxiety: A Theory Of Data Breach Harms By Daniel Solove And Danielle Keats Citron, Ryan Calo Jan 2018

A Long-Standing Debate: Reflections On Risk And Anxiety: A Theory Of Data Breach Harms By Daniel Solove And Danielle Keats Citron, Ryan Calo

Articles

This jointly-authored Article contributes mightily to our understanding of a critical aspect of privacy: harm. As Professors Solove and Citron carefully evidence, courts are reticent to countenance the harms that flow from a violation of privacy, even as they compensate similar harms in other contexts. Thus while exposing a plaintiff to an environmental or health risk may be compensable, few decisions vindicate victims of a data breach unless or until they experience actual identity theft. Courts have recognized subjective harms such as fear since the night W de S threw his fateful axe at M de S. But courts seldom ...


Is The License Still The Product?, Robert W. Gomulkiewicz Jan 2018

Is The License Still The Product?, Robert W. Gomulkiewicz

Articles

The Supreme Court rejected the use of patent law to enforce conditional sales contracts in Impression Products v. Lexmark. The case appears to be just another step in the Supreme Court’s ongoing campaign to reset the Federal Circuit’s patent law jurisprudence. However, the decision casts a shadow on cases from all federal circuits that have enforced software licenses for more than 20 years and potentially imperils the business models on which software developers rely to create innovative products and to bring those products to market in a variety of useful ways.

For over two decades, we could say ...


Investors' Paradox, Anita K. Krug Jan 2018

Investors' Paradox, Anita K. Krug

Articles

For the first time in an era, new investment products for smaller ("retail ") investors are emerging. These products are mutual funds that engage in the types of trading and investment activities that have long been the province of sophisticated investors. Accordingly, the new funds (called "alternative funds") promise to reduce the gulf between retail investors and their sophisticated counterparts, in terms of portfolio diversification and investment results.

This Article describes the complex mix of factors that spawned alternative funds and critically evaluates the funds' potential, the first scholarly work to do so. It additionally unearths the paradox that impedes the ...


Effects Of The New Sourcing Rule: Eci And Profit Sharing, David L. Koontz, Jeffery M. Kadet Jan 2018

Effects Of The New Sourcing Rule: Eci And Profit Sharing, David L. Koontz, Jeffery M. Kadet

Articles

For the first time in eons, Congress has seen fit to change a basic rule for the sourcing of income. The Tax Cuts and Jobs Act (P.L. 115-97) minced few words in its addition of a single sentence to section 863(b) that applies to sales or exchanges of inventory property (1) produced in whole or in part by the taxpayer in one country, and (2) sold or exchanged in another country. The United States can either be the country where the inventory property is produced or the country where it is sold.

With this change, income from the ...


Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts Jan 2018

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Visual politics are seeping into the technocracy. Rulemaking stakeholders—including agencies, the President, and members of the public—are deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. These images, GIFs, and videos usually do not make it into the official rulemaking record, so this new “visual rulemaking” world has not been discussed much by scholars or others.

In this article, we explore the new visual rulemaking culture that emerged in Obama’s presidency, providing examples and discussing relevant policy implications. Although we recognize some risks, we argue that, on balance, visual ...


Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter Oct 2017

Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Articles

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time ...


The Advent Of Lawyers In Japanese Government, Daniel H. Foote Jan 2017

The Advent Of Lawyers In Japanese Government, Daniel H. Foote

Articles

Until 2003, Japanese lawyers were prohibited by law from entering full-time employment in governmental bodies. That year, in line with recommendations by the Justice System Reform Council, the Lawyers Act was amended to permit lawyers to undertake such employment. Incorporating information and insights from interviews with former government lawyers and other concerned parties, this article examines the rise in the hiring of government lawyers and its impact. The article considers factors that have contributed to the increase, examines the roles played by these lawyers, considers prospects for the future, and discusses implications for government, the legal profession, clients, and legal ...


The Other Securities Regulator: A Case Study In Regulatory Damage, Anita K. Krug Jan 2017

The Other Securities Regulator: A Case Study In Regulatory Damage, Anita K. Krug

Articles

Although the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in securities regulation. It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the DOL used its securities regulatory authority to adopt a rule that, for the first time, designates securities brokers who provide investment advice to retirement investors as fiduciaries subject to ERISA's stringent transaction prohibitions. The new rule's objective is salutary, to be sure. However this Article ...


The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles Jan 2017

The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles

Articles

In an era of pioneering environmental and land use laws, savvy developers are using the “vested rights” doctrine to circumvent and undermine critical public health, safety, and environmental regulations. This controversy pits two legitimate interests against each other: On the one hand, local governments must have the power to pass land use laws and regulations in the public interest to protect their community’s health, safety, welfare, and environment. On the other, developers who rely on the laws in existence at the time their project is approved should be protected from subsequent changes to the law that could increase transactional ...


Standards Of Review In Law And Sports: How Instant Replay's Asymmetric Burdens Subvert Accuracy And Justice, Steve P. Calandrillo, Joseph Davison Jan 2017

Standards Of Review In Law And Sports: How Instant Replay's Asymmetric Burdens Subvert Accuracy And Justice, Steve P. Calandrillo, Joseph Davison

Articles

A fundamental tension exists in both law and sports: on one hand, adjudicators must “get the decision right” in order to provide fairness to the parties involved, but on the other, they must issue speedy and certain rulings to avoid delaying justice. The certainty principle dictates that courts follow stare decisis in the law even if they believe that an earlier decision was wrong. However, it is often the case that there is a need to reverse earlier decisions or the law itself in order to make the correct call on appeal.

Both law and sports are constantly balancing the ...


Judging Congressional Elections, Lisa Marshall Manheim Jan 2017

Judging Congressional Elections, Lisa Marshall Manheim

Articles

This Article reveals what passes as federal constitutional law in this area: a chaotic set of ad hoc, state-based interpretations that vary drastically by jurisdiction. Some states, for example, have interpreted Article I, Section 5 to permit courts to adjudicate congressional election contests. Others have concluded the opposite. Through such conflicting interpretations, state courts have contributed to a deep, intractable split on the provision's meaning and reach.

State legislatures have compounded the discord by enacting statutes that codify their interpretations, a move that renders their constitutional determinations practically unreviewable. Meanwhile, both Houses of Congress continue to adjudicate these congressional ...