Digital Commons Network^™

Powerless Against Police Brutality: Felon’S Story, Tamara F. Lawson

Articles

Imagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. Next, envision recovering from these injuries and awakening from a coma chained to your hospital bed informed that you are under arrest for attempted murder of a police officer. Then, consider waiting over five years for the opportunity to tell your story to the court, believing justice will be served, but instead you discover that the trial is more influenced by the revelation of your prior criminal record than …

Patent Prudential Standing, Xuan-Thao Nguyen

Articles

This Article is the first to focus on patent prudential standing. Patent prudential standing, a creation of the Federal Circuit, wastes precious resources and serves no sound policy goal. Under patent prudential standing, after many resources have been expended on the merits of a patent infringement case, parties face a reversal of course by the Federal Circuit’s ruling that the plaintiff, typically the exclusive licensee in a patent transaction, lacked standing to bring the case in the first place. Regardless that the plaintiff satisfies constitutional standing, the Federal Circuit propounds that the plaintiff must still meet patent prudential standing. The …

Persuasion Treaties, Melissa J. Durkee

Articles

All treaties, akin to contracts between nations, formalize the promises of their parties. Yet the contents of those promises differ, with important consequences.

One particular difference is underappreciated and divides treaties into two fundamentally different categories. In one category of treaty, nations agree that they themselves will act, or refrain from acting, in certain ways. For convenience, I call these “resolution” treaties because they demand that states resolve to act. In the second category, nations make promises they can only keep if nonstate third parties also act or refrain from acting. These are what I term “persuasion” treaties because they …

Property, Privacy And Power: Rethinking The Fourth Amendment In The Wake Of U.S. V. Jones, Dana Raigrodski

Articles

This Article seeks to uncover invisible gender, race, and class biases driving modern Fourth Amendment discourse. Unlike traditional theories, which tend to view the Fourth Amendment through the lens of either privacy or property, this Article advances a theory focusing on the real issues of power and control that fuel Fourth Amendment jurisprudence. Specifically, the Article exposes the private/public and home/market dichotomies that are central to the Supreme Court rhetoric as arbitrary and artificial. It finds that current Fourth Amendment discourse protects the interest of white, privileged men and perpetuates male ideology as well as male domination. That focus leaves …

Rethinking U.S. Investment Adviser Regulation, Anita K. Krug

Articles

Although the U.S. Investment Advisers Act of 1940 (the “Advisers Act”) was not at the center of the post-financial crisis regulatory reform that culminated in the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Dodd-Frank Act”), it was certainly part of the reform effort. In particular, Dodd-Frank amended the Advisers Act--the federal statute that regulates investment advisers and their activities--in a manner intended to address the ways in which privately-offered funds, particularly hedge funds, may have exacerbated the financial crisis. The primary regulatory concern, whether valid or not, was that, given the magnitude of assets invested in hedge …

Escaping Entity-Centrism In Financial Services Regulation, Anita K. Krug

Articles

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entity-centric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as …

Investment Company As Instrument: The Limitations Of The Corporate Governance Regulatory Paradigm, Anita K. Krug

Articles

U.S. regulation of public investment companies (such as mutual funds) is based on a notion that, from a governance perspective, investment companies are simply another type of business enterprise, not substantially different from companies that produce goods or provide (noninvestment) services. In other words, investment company regulation is founded on what this Article calls a “corporate governance paradigm,” in that it provides a significant regulatory role for boards of directors, as the traditional governance mechanism in business enterprises, and is “entity centric,” focusing on intraentity relationships to the exclusion of super-entity ones.

This Article argues that corporate governance norms, which …

The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita K. Krug

Articles

This Article's goal is to revisit early and thoughtful commentary on the fundamental problem of the large corporate enterprise--managerial accountability to shareholders-- to show that this fundamental problem is dramatically pronounced--magnified, if you will--in the types of enterprises that were at the center of the financial crisis, whether too big to fail or not. In particular, The Modern Corporation articulated that the evolution of economic organization has separated the beneficial ownership of property from those who control it and that this disjunction has created an irresolvable tension between shareholders and management. Nowhere is that tension more pronounced than in the …

Judges And Their Papers, Kathryn A. Watts

Articles

Who should own a federal judge’s papers?

This question has rarely been asked. Instead, it has generally been accepted that the Justices of the U.S. Supreme Court and other federal judges own their working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues such as abortion and flag burning. In contrast, …

Against Notice Skepticism In Privacy (And Elsewhere), M. Ryan Calo

Articles

What follows is an exploration of innovative new ways to deliver privacy notice. Unlike traditional notice that relies upon text or symbols to convey information, emerging strategies of “visceral” notice leverage a consumer’s very experience of a product or service to warn or inform. A regulation might require that a cell phone camera make a shutter sound so people know their photo is being taken. Or a law could incentivize websites to be more formal (as opposed to casual) wherever they collect personal information, as formality tends to place people on greater guard about what they disclose. The thesis of …

China's Golden Tax Project: A Technological Strategy For Reducing Vat Fraud, Jane K. Winn, Angela Zhang

Articles

Unlike the United States, where sales tax is a common form of indirect tax, almost all countries around the world-both developed and developing alike-now impose a value added tax (VAT). In the early 1990s, as part of its comprehensive economic reform program initiated over 30 years ago, the People's Republic of China implemented a VAT. Monitoring compliance with VAT is a serious challenge in developing countries, and China is no exception in that regard.

To address this challenge, China launched a major fiscal reform project called the "Golden Tax Project" (GTP) which mandates the use of specific sophisticated information technologies …

Governance Of Global Mobile Money Networks: The Role Of Technical Standards In Mobile Money In Developing Countries, Jane K. Winn

Articles

Mobile money has the potential to be an effective policy instrument for financial inclusion in developing countries, but it also has the potential to fuel money laundering and terrorist financing. The 2012 revised Financial Action Task Force standards attempt to strike a workable balance between the goals of financial inclusion and financial integrity in developing countries. Mobile money schemes are mostly based in national markets, however, and are not normally designed to address the need of poor migrants for cheap, effective cross-border remittance services.

Demand for such cross-border remittance services may drive the development of technical standards to build global …

Introduction To Mobile Money In Developing Countries: Financial Inclusion And Financial Integrity Conference Special Issue, Jane K. Winn, Louis De Koker

Articles

This special issue of the Washington Journal of Law, Technology & Arts contains papers contributed to a conference held at the University of Washington School of Law on April 20, 2012. The conference, entitled Mobile Money in Developing Countries: Financial Inclusion and Financial Integrity, was organized by the University of Washington School of Law with the support of the Linden Rhoads Dean’s Innovation Fund, Deakin University School of Law, Australia, and the United Nations Commission on International Trade Law (UNCITRAL).

The conference provided an early opportunity to analyze the impact of the newly-released revised 2012 Financial Action Task Force (FATF) …

Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said

Articles

Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their examination.

In …

Redistricting Litigation And The Delegation Of Democratic Design, Lisa Marshall Manheim

Articles

This Article seeks to reveal how the practice of litigating as redistricting, which has evolved into a form of litigation highly susceptible to procedural manipulation, has created a type of redistricting that grants profound power to those who choose to litigate. In so doing, this Article rejects any understanding of the redistricting process that understands the influence of litigants to be somehow negated or neutralized by the involvement of courts. It recognizes, moreover, that many of the defining features of redistricting litigation–which are, in certain respects, analogous to those characterizing other problematic forms of litigation–nevertheless reflect some of the most …

Mandated Disclosure In Literary Hybrid Speech, Zahr K. Said

Articles

This Article, written for the Washington Law Review’s 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure.

The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in “hybrid speech.” The second assumption is that the hidden promotional aspects …

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Articles

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"—the recipients of federal funding—to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships.

The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to …

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

Articles

This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.

At the heart of the doctrinal confusion over the proper scope of protection for …

The Psychotherapist Privilege: Privacy And "Garden Variety" Emotional Distress, Helen A. Anderson

Articles

Surprisingly, there is no clear authority on implied waiver of the psychotherapist-patient privilege in federal courts. There is binding authority from the Supreme Court establishing the privilege, but the bold outlines of that decision have been blurred in the confusion about implied waiver.

This Article explores one aspect of that confusion: the popular "garden variety" approach, which favors plaintiffs with what the court deems garden variety, or "normal," mental distress. Although a few other scholars have written on the confusion in the law of implied waiver, this is the first article to look closely at the garden variety approach, which …

Ecotoxicological Assessment Of Silica And Polystyrene Nanoparticles Assessed By A Multitrophic Test Battery, Maria Casado-Gavalda, Ailbhe Macken, Hugh Byrne

Articles

The acute ecotoxicity of different diameters of silica and polyethyleneimine polystyrene (PS-PEI)nanoparticles (NPs)was assessed on a test battery of aquatic organisms representing different trophic levels. Daphnia magna, Thamnocephalus platyurus, Pseudokirchneriella subcapitata and Vibrio fischeri, were employed in a series of standard acute ecotoxicity tests and work was complemented with two cytotoxicological end points on a rainbow trout gonadal cell line (RTG-2). Physico-chemical characterization of the NPs was performed in the different test media employed, using dynamic light scattering (DLS) and zeta potentiometry. In contrast to silica NPs exposure, for which no effect was observed for concentrations up …

Pulmonary Dwcnt Exposure Causes Sustained Local And Low-Level Systemic Inflammatory Changes In Mice, Furong Tian, Junja C. Habel-Ungewitter, Yin Renfu, Tobias Stoger

Articles

Carbon nanotubes (CNTs) represent promising vectors to facilitate cellular drug delivery and to overcome biological barriers, but some types may also elicit persistent pulmonary inflammation based on their fibre characteristics. Here, we show the pulmonary response to aqueous suspensions of block copolymer dispersed, double-walled carbon nanotubes (DWCNT, length 1–10 lm) in mice by bronchoalveolar lavage (BAL) analysis, and BAL and blood cytokine and lung antioxidant profiling. The intratracheally instilled dose of 50 lg DWCNT caused significant pulmonary inflammation that was not resolved during a 7- day observation period. Light microscopy investigation of the uptake of DWCNT agglomerates revealed no particle …

Tax Abuse According To Whom, Shannon Weeks Mccormack

Articles

In 1996, Congress banned the Treasury Department from enacting retroactive regulations but provided an important exception, allowing tax regulations to apply retroactively “to prevent abuse.” Congress did not, however, explicitly define abuse; nor did it designate to any specific actor the power to do so. This Article provides the first comprehensive look at the level of deference owed a Treasury regulation’s interpretation of the Internal Revenue Code’s abuse exception. Generally, a reviewing court owes some level of deference to an agency’s interpretation of the statute it is entrusted to administer. Some statutory interpretations are entitled to receive the strong standard …

The Trials And Tribulations Of Japan’S Legal Education Reforms, Daniel H. Foote

Articles

A sense of momentum accompanied the start of Japan's new legal education system in the spring of 2004. Less than three years had passed since the Justice System Reform Council (the Reform Council) issued its final report in June 2001, proposing a major restructuring of Japan's legal training system centered on a new tier of graduate level law schools. And less than a year and a half had elapsed since the details of the law school system were decided and enabling legislation passed. Despite the tight timetable, sixty-eight law schools were ready to commence operations in 2004, having arranged facilities, …

Designing Islamic Constitutions: Past Trends And Options For A Democratic Future, Clark B. Lombardi

Articles

In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a "Sharia Guarantee Clause" depends to a large degree on questions of constitutional design -- on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then …

Consumer Subject Review Boards: A Thought Experiment, Ryan Calo

Articles

The adequacy of consumer privacy law in America is a constant topic of debate. The majority position is that United States privacy law is a “patchwork,” that the dominant model of notice and choice has broken down, and that decades of self-regulation have left the fox in charge of the henhouse. A minority position chronicles the sometimes surprising efficacy of our current legal infrastructure.

But the challenges posed by big data to consumer protection feel different. They seem to gesture beyond privacy’s foundations or buzzwords, beyond “fair information practice principles” or “privacy by design.” The challenges of big data may …

Eggshell Economics: A Revolutionary Approach To The Eggshell Plaintiff Rule, Steve Calandrillo, Dustin E. Buehler

Articles

For more than a century, courts have universally applied the eggshell plaintiff rule, which holds tortfeasors liable for the full extent of the harm inflicted on vulnerable “eggshell” victims. Liability attaches even when the victim’s condition and the scope of her injuries were completely unforeseeable ex ante.

This Article explores the implications of this rule by providing a pioneering economic analysis of eggshell liability. It argues that the eggshell plaintiff rule misaligns parties’ incentives in a socially undesirable way. The rule subjects injurers to unfair surprise, fails to incentivize socially optimal behavior when injurers have imperfect information about expected accident …

Lockdown For Liberty: Black Masculinities, Mass Incarceration And Labor In The Georgia Prisoners Strike, Jeremiah Chin

Articles

This article examines the Georgia prisoners’ protest and uses the prisoners’ list of demands to examine the relationship between historical and present notions of race, labor, rights and incarceration. Particular focus will be placed on how mass incarceration is racialized in the disproportionate imprisonment of men of color, specifically black men, and how this contributes to the invisibility of this population in the public eye. The next section offers a theoretical framework to understand how prisons and prisoner issues are removed from public discourse, the general assumptions undergirding public perceptions of prisons and how common sense assumptions of prisons can …

Organizing Interlocal Entities: What Form Is Best… And Does The Interlocal Cooperation Act Need A Rewrite?, Hugh D. Spitzer

Articles

Intergovernmental cooperation is a generally-accepted approach to cooperative service delivery by Washington state and local agencies. Most municipal lawyers are involved from time to time in negotiating interlocal agreements and forming intergovernmental entities to assist municipalities in carrying out their responsibilities on a cooperative basis. There are a large number of legal tools available for interlocal arrangements. This paper focuses on several specific structural questions relating to intergovernmental entities:

• Sources of authority, and when and when not to use the Interlocal Cooperation Act (Ch. 39.34 RCW).
• When using the Interlocal Cooperation Act, what type of separate entity (if any) to …

An Ultra-Performance Liquid Chromatoghraphy-Tandem Mass Spectrometry (Uplc-Ms/Ms) Method For The Rapid And Sensitive Determination Of Sulforaphane And Sulforaphane Nitrile In Brassica Vegetables, Laura Alvarez Jubete, Thomas J. Smyth, Juan Valverde, Dilip K. Rai, Catherine Barry-Ryan

Articles

A rapid UPLC-MS/MS method has been developed and validated for the simultaneous analysis of sulforaphane and sulforaphane nitrile from Brassica Oleracea L. This method was developed utilising an Acquity BEH C8 column with gradient elution combined with tandem mass spectrometry detection, using positive ion electrospray ionisation in multiple reaction monitoring (MRM) mode. The method was validated for linearity, sensitivity, precision, accuracy, matrix effects and recovery. The retention times for sulforaphane and sulforaphane nitrile were 0.4 and 0.6 min, respectively. The limits of detection and lower limits of quantification were 0.005 μM and 0.01 μM respectively for sulforaphane, and 0.06 μM …

A Window Of Opportunity: Assessing Behavioural Scoring, Kenneth Kennedy, Brian Mac Namee, Sarah Jane Delany, Michael O'Sullivan, Neil Watson

Articles

After credit has been granted, lenders use behavioural scoring to assess the likelihood of default occurring during some specific outcome period. This assessment is based on customers’ repayment performance over a given fixed period. Often the outcome period and fixed performance period are arbitrarily selected, causing instability in making predictions. Behavioural scoring has failed to receive the same attention from researchers as application scoring. The bias for application scoring research can be attributed, in part, to the large volume of data required for behavioural scoring studies. Furthermore, the commercial sensitivities associated with such a large pool of customer data often …