Law Commons^™

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

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 …

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 Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

How The Gun Control Act Disarms Black Firearm Owners, Maya Itah

Washington Law Review

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to …

Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan

Washington Law Review

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted …

How Far Will Fara Go? The Foreign Agents Registration Act And The Criminalization Of Global Human Rights Advocacy, Monica Romero

Washington Law Review

The Foreign Agents Registration Act (FARA) was enacted and enforced during World War II to protect the American public from foreign propaganda, especially from the Nazi party. Following the war, FARA was scarcely used for over half a century. But in the past five years, there has been a significant uptick in FARA enforcement, particularly against major political personalities. The revival of FARA has led many legislators and scholars to advocate for expansions of FARA’s scope and enforcement mechanisms in the name of national security. But most have failed to acknowledge the risk and likelihood of politicized enforcement. The United …

Federal Architecture And First Amendment Limits, Jessica Rizzo

Washington Journal of Law, Technology & Arts

In December of 2020, President Trump issued an executive order on “Promoting Beautiful Federal Civic Architecture,” a draft of which was leaked to the press in February under the title, “Making Federal Buildings Beautiful Again.” The order provided for updating the Guiding Principles of the General Services Administration’s Design Excellence Program to promote the use of “classical and traditional architectural styles,” which “have proven their ability to inspire…respect for our system of self-government.” According to the order, there would have been a presumption against the use of such modern architectural styles as Brutalism and Deconstructivism in the construction of new …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo

Washington Law Review

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer

Washington Law Review Online

For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …