Digital Commons Network^™

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 …

Commercial Sex And Exploitation, Judge Barbara Mack, Dana Raigrodski

Chapters in Books

Commercial sexual exploitation (CSE), including sex trafficking, mainly targets women, children, young adults (up to age 24), and individuals identifying as LGBTQ+, primarily in communities in poverty, Indigenous communities, and communities of color. Economic and social marginalization drives people into the commercial sex industry and exploitation, which in turn perpetuates that economic and social marginalization. The most targeted and marginalized populations have been doubly harmed by exploitation and by poor treatment within the legal system.

While data is limited, CSE is widespread in the sex industry in Washington State and nationally. State and national data show significant disparities based on …

Talking Back In Court, M. Eve Hanan

Washington Law Review

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important …

Third-Party Sexual Harassment: The Challenge Of Title Ix Obligations For Law School Clinics, Ty Alper

Washington Law Review

Law faculty who teach and train students in clinical settings regularly expose students to the potential for sexual harassment. Because clinics involve actual cases in real-world contexts, students may encounter sexual harassment from third parties such as clients, witnesses, and judges. Do faculty who tolerate this exposure run afoul of their obligations under Title IX to stop and remedy sexual harassment about which they are, or should be, aware?

This Article is the first to identify and propose a method for addressing a phenomenon that strikes at the intersection of three sets of priorities for clinical faculty: duty to serve …

The Bar Exam’S Contribution To Systemic Inequalities In Access To Justice Around The World, Nicci Arete

Washington International Law Journal

Existing literature does not give adequate attention to if and how the bar exam impacts the legal profession’s goals. Bar exam proponents say that the test separates competent candidates from incompetent ones, protecting the public from falling victim to inadequate legal services. But what constitutes a competent attorney? What are the goals of the profession? As legal systems become more complex and their impact on people’s lives all- encompassing, the ideal of improving access to justice—equitable and fair justice—is increasingly the target for justice systems across the globe. Addressing access to justice cannot be done without acknowledging the disparate barriers …

Foreword, William Covington

Washington International Law Journal

No abstract provided.

2021: How Gender And Race Affect Justice Now - Final Report, Justice Sheryl Gordon Mccloud, Dana Raigrodski, Sierra Rotakhina, Kelley Amburgey-Richardson

Books

In 1989, the Washington Supreme Court’s Task Force on Gender and Justice in the Courts produced a groundbreaking report on the impact of gender on selected areas of the law. It concluded that gender did affect the availability of justice. We – the Washington State Supreme Court Gender and Justice Commission – are a product of that report and its recommendations. Now, in 2021, we have completed our follow-up study.

Our legal and social science research, our data collection, and our independent pilot projects all led us to the same frustrating conclusion about the effect of gender in Washington State …

Rules Versus Standards: A Moral Inquiry Into Washington's Character & Fitness Hearing Process, Jennifer Aronson

Washington Law Review

Historically, moral character inquiries within the state bar admission process have led to the exclusion of diverse and important voices from the legal profession, both consequentially and at times by design. Washington does not keep statistics on the race, ethnicity, gender, or economic class of bar applicants who are referred to character and fitness hearings, nor on the outcomes of those hearings. Examining how implicit bias and disparate outcomes interact in other areas of discretionary adjudicative decision-making illustrates the potential impact that the character and fitness process has on underrepresented communities in the legal profession.

In a criminal justice reform …

Hatching A Plan For Local Communities: Environmental Justice In Poultry Siting Decisions, Diana Stanley

Washington Journal of Environmental Law & Policy

One of the implementation problems for environmental justice is reconciling the need to protect public health with the economic realities of struggling communities. This article explores that tension through the lens of siting decisions for large scale poultry operations in rural communities. Poultry siting decisions have major economic and environmental impacts and have been underdiscussed in the environmental justice literature. This article focuses on the role of law and policy in concentrated animal feeding operation (CAFO) siting— from community benefit agreements to Right to Farm legislation. It uses a Kansas CAFO siting and the wider Kansas experience as a case …

Korean Code Of Ethics For Attorneys, Wonji Kerper, Changmin Lee

Washington International Law Journal

In 2009, Korea implemented a law school educational system, which not only changed the legal education system, but the legal landscape as a whole. This has led to rapid growth in the number of attorneys. Although the increased number of attorneys has resulted in lower barriers to accessing justice, it has also brought the unintended consequence of cut-throat competition. With the number of disciplinary actions rising by four-fold in the last three years, the current version of the Korean Code of Ethics for Attorneys is certainly a step in the right direction but may not be enough to strengthen attorneys’ …

Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.

Washington International Law Journal

Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the attitudes …

Translation: The Korean Bar Association's Code Of Ethics For Attorneys, Wonji Kerper, Changmin Lee

Washington International Law Journal

No abstract provided.

The Regulation Of Lawyers In Compliance, Jennifer M. Pacella

Washington Law Review

The field of compliance has exploded in interest, attention, and growth over recent years. It has emerged as a popular career path for those trained in the law, giving rise to an influx of job opportunities for new law school graduates and seasoned attorneys alike. Additionally, compliance has tightened the essential interplay between business and law. Numerous compliance officers hold J.D. degrees and many also serve simultaneously as both an organization’s chief compliance officer and general counsel, thereby muddying the lines between which service constitutes the “practice of law,” requiring adherence to professional rules of responsibility, or non-legal work, where …

Emerging Privacy Legislation In The International Landscape: Strategy And Analysis For Compliance, Jonathan Mcgruer

Washington Journal of Law, Technology & Arts

Big data is a part of our daily reality; consumers are constantly making decisions that reflect their personal preferences, resulting in valuable personal data. Facial recognition and other emerging technologies have raised privacy concerns due to the increased efficiency and scope which businesses and governments can use consumer data. With the European Union’s General Data Protection Regulation ushering in a new age of data privacy regulation, international jurisdictions have begun implementing comparable comprehensive legislation, affecting businesses globally. This Article examines the similarities between emerging U.S. state data privacy laws and the General Data Protection Regulation, with suggestions for businesses implicated …

The Trauma Of Trump's Family Separation And Child Detention Actions: A Children's Rights Perspective, Jonathan Todres, Daniela Villamizar Fink

Washington Law Review

In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And subsequent reports—from both the government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention …

The Role Of Law And Policy In Achieving Healthy People’S Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa I. Iezzoni

Articles

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

Justice System Reform And Internationalization, Daniel H. Foote

Articles

As discussant. normally my role would be to offer trenchant and perceptive critiques of each of the three main reports. those by Professors Takamizawa. Matsuo. and SuamL Those reports are broad in scope, both geographical and historical; each report is outstanding: and each provides much food for thought. Yet even if time and space permitted, I myself lack sufficient knowledge regarding China. Southeast Asia and Europe to provide a thorough critique. Instead. in this essay I will shift the focus back to Japan and examine various respects in which the justice system reforms have sought to promote internationalization.

Tiptoeing Through The Landmines: The Evolution Of States' Legal Ethics Authority Regarding Representing Cannabis Clients, Karen Boxx

Articles

No abstract provided.

Replacing Geographic Lines With Conceptual Lines: A Proposal For Limited Authorization Of Multijurisdictional Practice Of Law, Patrick Medley

Washington Law Review

State regulations have created substantial barriers to lawyers who engage in multijurisdictional practice of law. Applying the amorphous concept of practice of law to modern society results in many lawyers who knowingly or unknowingly practice in multiple states—including states where they are not admitted to the bar. Yet there is no simple means by which a lawyer can obtain permission to engage in multijurisdictional practice in the United States. This Comment proposes a way for Congress to authorize multijurisdictional practice for some aspects of legal practice without completely displacing the role of state bars. Drawing on analogies to the division …

Regulating Wage Theft, Jennifer J. Lee, Annie Smith

Washington Law Review

Wage theft costs workers billions of dollars each year. During a time when the federal government is rolling back workers’ rights, it is essential to consider how state and local laws can address the problem. As this Article explains, the pernicious practice of wage theft seemingly continues unabated, despite a recent wave of state and local laws to curtail it. This Article provides the first comprehensive analysis of state and local anti-wage theft laws. Through a compilation of 141 state and local anti-wage theft laws enacted over the past decade, this Article offers an original typology of the most common …

Professionally Responsible Artificial Intelligence, Michael Hatfield

Articles

As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI …

Blame It On The Machine: A Socio-Legal Analysis Of Liability In An Ai World, Michael Callier, Harly Callier

Washington Journal of Law, Technology & Arts

As technology continues to evolve, interactions between humans and artificial intelligence (“AI”) will skyrocket. It is important to understand the impact AI can have on society, as well as the potential harm and subsequent liability that could result, and to develop best practices designed to address them. The U.S. needs a comprehensive framework to govern the design, creation, use and risks associated with AI. At the time of this writing, no such framework has been implemented. This article takes a socio-legal, interdisciplinary approach to explore ideas on socio-ethical concerns and theories of liability related to AI, and applies a sociological …

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 …

Defining Attorney-Client Privilege For The Independent Contractor: A Case For The Functional Equivalent Doctrine In Washington, Benjamin J. Robbins

Washington Law Review Online

Corporations increasingly rely on independent contractors to fulfill basic organizational needs. This increased reliance has created a number of legal issues, one of which is the level of privilege extended to communications between contractors and legal counsel for the contracting corporation. This issue is particularly relevant for corporations in the “gig economy,” like Uber, Lyft, and Postmates, which rely on independent contractors for fundamental business functions. Washington State courts have yet to decide whether independent contractors are entitled to attorney-client privilege regarding these conversations. Generally, Washington courts follow the U.S. Supreme Court’s “Upjohn rule,” which protects communications between corporate counsel …

Emergency Preparedness In The Legal Librarian Community In The United States – Current Culture And The Need To Expand Collaboration, Danielle Lewis

Borgeson Paper Archive

The frequency of natural disasters hitting populated areas is increasing, and due to society’s increased dependency on modern infrastructure, the impacts of disasters have also escalated. I interviewed librarians and law librarians that work or have worked in libraries that were impacted by natural disasters, as well as experts in the disaster management field. From their comments and insights, shared in this paper, it is clear that there are lessons that can be learned from the larger community in the area of disaster management in law libraries. The law librarian community needs to expand the scope of the national discussion …

My Year Of Citation Studies, Part 1, Mary Whisner

Librarians' Articles

Ms. Whisner begins a year of exploring how legal scholarship citation counts are created and viewed. What works do authors actually cite? Which legal sources are included? She shares her findings here.

Defining Attorney-Client Privilege For The Independent Contractor: A Case For The Functional Equivalent Doctrine In Washington, Benjamin J. Robbins

Washington Law Review Online

Corporations increasingly rely on independent contractors to fulfill basic organizational needs. This increased reliance has created a number of legal issues, one of which is the level of privilege extended to communications between contractors and legal counsel for the contracting corporation. This issue is particularly relevant for corporations in the “gig economy,” like Uber, Lyft, and Postmates, which rely on independent contractors for fundamental business functions. Washington State courts have yet to decide whether independent contractors are entitled to attorney-client privilege regarding these conversations. Generally, Washington courts follow the U.S. Supreme Court’s “Upjohn rule,” which protects communications between corporate counsel …

Book Review: Legal Scholarship In Japan, Daniel H. Foote

Book Reviews

No abstract provided.

State V. Bassett, Docket No. 94556-0 (192 Wash.2d 67, 428 P.3d 343 (2018))

Summaries and Briefs for Key Washington State Constitutional Cases

No abstract provided.

Socioeconomic Status Discrimination, Danieli Evans

Articles

This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal.

First and most straightforward, the values animating discrimination law apply to poverty: Existing …