Law Commons^™

We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons

Washington Law Review Online

Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …

Theseus In The Labyrinth: How State Constitutions Can Slay The Procedural Minotaur, Marcus A. Gadson

Washington Law Review

Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee “[t]hat all courts shall be open, and every person, for an injury done him in his person, property …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

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

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

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

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

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

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

The Common Law Process: A New Look At An Ancient Value Delivery System, Dennis J. Sweeney

Washington Law Review

Have common law courts subtly and incrementally put themselves out of the substantial and traditional business of law-making or, at least, put themselves out of business as we once knew it? More personally, do I belong here? Or am I helping to betray the common law tradition I preach and practice and which has served the citizens of Washington since statehood and before? The short answer is: I think not. Each of the relevant principles, if they are to have any practical application at all, must someday be applied by a court to an actual case, to an actual controversy. …

Mikhail Bakhtin And Change In The Common Law, Russell West Jr.

Washington Law Review

Traditional legal analysis comprehends change in the common law over time as a shifting legal response to different facts and circumstances. This approach does not examine the internal mechanisms by which the meaning of a judicial opinion changes when cited in later legal writing. Mikhail Bakhtin, a literary and cultural theorist, argued that any statement can be understood only through the context in which it is uttered and that every change in context causes a shift in the statement's meaning. This Comment analyzes the internal mechanisms of judicial opinions in light of Bakhtin's theories. First, this Comment describes one example …

What To Do When There's No "I Do": A Model For Answering Damages Under Promissory Estoppel, Neil G. Williams

Washington Law Review

Since its inception in the seventeenth century, the common-law action for breach of promise to marry has been the subject of recurrent legal debates. Beginning in the 1930s, some states began passing statutes that abolished the action altogether. Even so, today about half of American jurisdictions retain the breach-of-promise action in some form. This Article advocates a compromise that is not currently the law in any American jurisdiction: parties who breach promises to marry should be liable for damages, but only to the extent they have induced reliance by those to whom they were formerly engaged. Under this proposed model, …

Constitutional Challenges To The Partial Rejection And Modification Of The Common Law Rule Of Joint And Several Liability Made By The 1986 Washington Tort Reform Act, Cornelius J. Peck

Washington Law Review

The procedural due process questions raised by Section 401 differ in substantial ways from questions in traditional procedural due process cases. In most of the decided cases a governmental body or a private individual was attempting to harm the interests of the person claiming due process protection. Due process requirements were established as protections for the defendant. Only a few of the cases involved a claim of due process in access to a judicial remedy. Persons contesting the constitutionality of Section 401 will argue that the limitations imposed and the procedures required by that Section fail to meet the requirements …

Qualified Common Law Privilege For News Reporters In Criminal Cases—State V. Rinaldo, 102 Wn. 2d 749, 689 P.2d 392 (1984), Susan Ward

Washington Law Review

In State v. Rinaldo, the Washington Supreme Court extended the news reporter's qualified common law privilege to criminal cases. This extension will adequately protect most confidential information held by reporters. In some cases, however, defendants will be able to defeat the qualified privilege announced in Rinaldo. The Washington courts should then construe article 1, section 5 of the Washington State Constitution to require in camera inspection of the information sought. The trial judge should order disclosure only upon concluding that the defendant's interest in obtaining the information outweighs the news reporter's interest in confidentiality.

Codification And The Rise Of The Restatement+A5 Movement, Nathan M. Crystal

Washington Law Review

This article first critically examines and disputes the theses of Professors Gilmore and Friedman. It then presents an argument that the Restatement movement was, in fact, sympathetic to the goals of codification and, far from being a reaction to the challenge of realism, originated before realism developed as a coherent position. Both the Restatement movement and the codification movement of the late nineteenth and early twentieth centuries attempted to solve the problems of uncertainty, complexity, and consequent delay which plagued the legal system after the Civil War. Both were instituted, in substantial part, by the same segments of the bar, …

The Old Fields And The New Corn—Some Observations On The Common Law And Its Continued Vitality, G. F. Curtis

Washington Law Review

In contrast, the common law had its origins in the decisions of judges, and its growth through the cases. The legal system thus built is one of the imposing products of the human mind; and all who serve it are justly proud of it. Not a little of the literature of our system, indeed, is concerned to assert the superiority of the case method. "Law grows, and though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some …