Law Commons^™

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

Articles

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

Reifying Injustice: Using Culturally Specific Tattoos As A Marker Of Gang Membership, Beth Caldwell

Washington Law Review

The “gang” label has been so highly racialized that white people who self- identify as gang members are almost never categorized as “gang members” by law enforcement, while Black and Latino people who are not gang members are routinely labeled and targeted as if they were. Different rules attach to people under criminal law once they are labeled gang members, yet this two-track system is justified under the guise that the racially disparate treatment is legitimate because of gang association.

This Article takes one concrete example—culturally specific tattoos—and unmasks how racial markers are used to attach the gang label. Specifically, …

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

Citation, Slavery, And The Law As Choice: Thoughts On Bluebook Rule 10.7.1(D), David J.S. Ziff

Articles

Today, more than 150 years after the end of the Civil War, lawyers and judges continue to rely on antebellum decisions that tacitly or expressly approve of slavery. This reliance often occurs without any acknowledgement of the precedent’s immoral and legally dubious provenance. Modern use of these so-called “slave cases” was the subject of Professor Justin Simard’s 2020 article, Citing Slavery. In response to Professor Simard’s article, the latest edition of The Bluebook includes Rule 10.7.1(d), which requires authors to indicate parenthetically when a decision involves an enslaved person as a party or the property at issue. Unfortunately, Rule 10.7.1(d) …

Modalities Of Social Change Lawyering, Christine N. Cimini, Doug Smith

Articles

The last decade has seen the rise of new kinds of grassroots social movements. Movements including Occupy Wall Street, Black Lives Matter, Sunrise, and #MeToo pushed back against long-standing political, economic, and social crises, including income inequality, racial inequality, police violence, climate change, and the widespread culture of sexual abuse and harassment. As these social change efforts evolve, a growing body of scholarship has begun to theorize the role of lawyers within these new social movements and to identify lawyering characteristics that contribute to sustaining social movements over time. This Article surveys this body of literature and proposes a typology …

Reply Brief For Petitioners, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Brief For Respondents, Twitter, Inc. V. Taamneh, 143 S.Ct. 1206 (2023) (No. 21.1496), Eric Schnapper, Keith L. Altman, Robert J. Tolchin

Court Briefs

No abstract provided.

Resilience Grammar: A Value Sensitive Design Method For Resilience Thinking, David G. Hendry, Batya Friedman

Tech Policy Lab

The resilience grammar is a method for bringing a value sensitive design sensibility to resilience thinking. The method provides a systematic process for researchers, designers, and policymakers to identify and trace resilience pathways in the context of real world responses to stressors and obstacles. The grammar is composed of seven statement types, which bring forward aspects of resilience. Each statement type is composed of a connecting phrase and an element, in the form of “resilience connecting-phrase .” In this report, we define each statement type in the resilience grammar, provide two brief illustrations of the grammar in action, and conclude …

Woke Capital Revisited, Jennifer S. Fan

Articles

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

How Do Japanese Clients View Their Lawyers -- And How Did Those Views Change Over The Decade Between Surveys? [Bengoshi Ni Taisuru Soshōtōjisha No Hyōka – 10nen De Hyōka Wa Dou Kawatta Ka], Daniel H. Foote

Chapters in Books

A central component of the Civil Litigation Behavior Research Project (2003-2008) and the successor Civil Litigation Research Project (2016-2020) was a set of surveys of litigants in civil cases.1 For comparison purposes, each project also included a survey of the general public, containing a number of identical or similar questions. Among the many aspects of the litigation experience covered in the surveys, several questions focused on the lawyer-client relationship. These included questions about access to lawyers, advice by lawyers, and client evaluations of and level of satisfaction with the lawyers who represented them. After briefly examining some of the ways …

Exploring Anti-Racism In The First Year Legal Writing Classroom, Amanda K. Maus Stephen

Presentations

The Legal Writing Institute hosted a series of one-day workshops at various law schools, including at SU, where the theme of the workshops was "Teaching Values in the Legal Writing Classroom." This presentation explores assignments and activities that legal writing professors can use to introduce and reinforce ant-racism as a critical professional value.

Brief For Petitioners, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Brief In Opposition, Twitter, Inc. V. Taamneh, 143 S.Ct. 1206 (2023) (No. 21.1496), Eric Schnapper, Keith L. Altman, Daniel W. Weininger

Court Briefs

No abstract provided.

Petition For A Writ Of Certiorari, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman, Daniel Weininger

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper

Washington Law Review

As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Washington Law Review

This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, …

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Testimony, 5 Ways Life Would Be Better With Year-Round Daylight Saving Time, Steve Calandrillo

Presentations

In my research on daylight saving time (DST), I have found that Americans don’t like it when Congress messes with their clocks. In an effort to avoid the biannual clock switch in spring and fall, some well-intended critics of DST have made the mistake of suggesting that the abolition of DST (and a return to permanent standard time) would benefit society. They are wrong. DST saves lives and energy, and prevents crime. Congress should move the country to year-round DST, and if it did so, here are five ways our lives would immediately improve.

Why Govern Broken Tools?, Ryan Calo

Articles

In Assessing the Governance of Digital Contact Tracing in Response to COVID-19: Results of a Multi-National Study, Brian Hutler et al. ably compare two approaches to the governance of digital contract tracing (DCT). In this brief essay, I want to examine to what extent governance actually played a meaningful role in the failure of DCT. If DCT failed primarily for other reasons, then the authors’ normative suggestion to pursue “a new governance approach … for designing and implementing DCT technology going forward” may be misplaced.

The Injustice Of 1.5°C–2°C: The Need For A Scientifically Based Standard Of Fundamental Rights Protection In Constitutional Climate Change Cases, Lauren E. Sancken, Andrea K. Rodgers, Jennifer Marlow

Articles

In 2015, signatories to the Paris Agreement agreed to the goal of keeping global temperature rise this century to well below 2°C above preindustrial levels and to pursue efforts to limit the temperature increase even further to 1.5°C. Although the adoption of the Paris Agreement was in many ways a political triumph, seven years later many climate advocates are presenting the Paris target to judicial bodies as the de facto legal standard for fundamental rights protection in climate change cases. Yet, the history leading up to the signatories’ ultimate adoption of the Paris Agreement target suggests that the target is …

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 …

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …

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 …

The Euclid Proviso, Ezra Rosser

Washington Law Review

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

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 …

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 …