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Articles 1 - 30 of 116
Full-Text Articles in Law
Exchanging Information Without Intellectual Property, Michael J. Burstein
Exchanging Information Without Intellectual Property, Michael J. Burstein
Faculty Articles
Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a “fundamental paradox” that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or …
Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T Mobility V. Concepcion, Myriam E. Gilles
Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T Mobility V. Concepcion, Myriam E. Gilles
Faculty Articles
The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepcion, in which California's "Discover Bank rule" was struck by the Court under the Federal Arbitration Act, which was upheld by the California Supreme Court in the court case Discover Bank v. Superior Court. It provides information that the rule is a judge-made rule which depicts that class action waivers are unforceable in arbitration agreements if such agreements are mentioned in standard form consumer contracts.
Traditional Knowledge, Cultural Expression, And The Siren's Call Of Property, Justin Hughes
Traditional Knowledge, Cultural Expression, And The Siren's Call Of Property, Justin Hughes
Faculty Articles
Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.
Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky
Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky
Faculty Articles
This article explores the implications of the U.S. Supreme Court’s decisions in DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn. In Cuno and Winn, the Court held that state taxpayers lacked standing in the federal courts. Because the states have more liberal taxpayer standing rules than do the federal courts, Cuno and Winn will not terminate taxpayers’ constitutional challenges to state taxes and expenditures, but will instead channel such challenges from the federal courts (where taxpayers do not have standing) to the state courts (where they do). Moreover, municipal taxpayer standing in the federal courts, which …
Comments Of The Center For Indian Law & Policy On Washington’S Fish Consumption Rate Technical Support Document, Catherine O’Neill
Comments Of The Center For Indian Law & Policy On Washington’S Fish Consumption Rate Technical Support Document, Catherine O’Neill
Faculty Articles
Comments Submitted to the Washington State Department of Ecology.
Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
Faculty Articles
Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …
Procedure In Eclipse: Group-Based Adjudication In A Post-Conception Era, Myriam E. Gilles
Procedure In Eclipse: Group-Based Adjudication In A Post-Conception Era, Myriam E. Gilles
Faculty Articles
No abstract provided.
Technology As A Driver Within Agencies - The Internet Change Everything, Michael Herz
Technology As A Driver Within Agencies - The Internet Change Everything, Michael Herz
Faculty Articles
No abstract provided.
Same Violence, Same Sex, Different Standard: An Examination Of Same-Sex Domestic Violence And The Use Of Expert Testimony On Battered Woman's Syndrome In Same-Sex Domestic Violence Cases, Leonard Pertnoy
Faculty Articles
1971 marked the genesis of the Battered Women's Movement and, since then, remarkable strides have been made to address and combat domestic violence. Today, for example, a myriad of domestic abuse agencies offer an array of services, including: 24-hour hotlines; counseling; safe houses; transitional living; children's services; life skills education; professional training; batterers' intervention; and legal assistance. These strides, however, cannot extirpate two ugly truths: domestic violence still pervades our society, and it afflicts more than those in heterosexual relationships. Anecdotal evidence and a growing body of literature indicate that domestic abuse is not unique to heterosexuals, but occurs in …
Remodeling The Multi-Door Courthouse To "Fit The Forum To The Folks": How Screening And Preparation Will Enhance Adr, Tim Hedeen
Faculty Articles
The article offers information on remodeling of multi-door courthouse to enhance Alternative Dispute Resolution (ADR) efficiency. It informs that symposium, The Future of Court ADR: Mediation and Beyond that was held in September 2011 featured scholars and practitioners to discuss the past and future of ADR. It informs that research and practice in mediation have deepened the understanding in engaging with prospective clients.
After Class: Aggregate Litigation In The Wake Of At&T Mobility V Concepcion, Myriam E. Gilles, Gary Friedman
After Class: Aggregate Litigation In The Wake Of At&T Mobility V Concepcion, Myriam E. Gilles, Gary Friedman
Faculty Articles
Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court's April 2011 decision in AT&T Mobility v Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of Concepcion warrants close scrutiny. Our analysis suggests that following Concepcion, some plaintiffs will be able to successfully …
Release As Remedy For Excessive Punishment, Alexander A. Reinert
Release As Remedy For Excessive Punishment, Alexander A. Reinert
Faculty Articles
Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …
Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of The Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky
Faculty Articles
In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion …
The Photographer's Copyright - Photograph As Art, Photograph As Database, Justin Hughes
The Photographer's Copyright - Photograph As Art, Photograph As Database, Justin Hughes
Faculty Articles
No abstract provided.
Rulemaking As Politics, Thirty Years On, Michael Herz
Rulemaking As Politics, Thirty Years On, Michael Herz
Faculty Articles
No abstract provided.
The Least Of These: In Praise Of Professor Tom Holdych’S Integrity And Dedication To Justice For The Disadvantaged, Henry Mcgee
The Least Of These: In Praise Of Professor Tom Holdych’S Integrity And Dedication To Justice For The Disadvantaged, Henry Mcgee
Faculty Articles
An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.
Tribute To Professor Tom Holdych, John Weaver
Tribute To Professor Tom Holdych, John Weaver
Faculty Articles
An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.
Orphan Works As Grist For The Data Mill, Matthew Sag
Orphan Works As Grist For The Data Mill, Matthew Sag
Faculty Articles
The phenomenon of library digitization in general, and the digitization of so-called “orphan works” in particular, raises many important copyright law questions. However, as this Article explains, correctly understood, there is no orphan works problem for certain kinds of library digitization.
The distinction between expressive and non-expressive works is already well recognized in copyright law as the gatekeeper to copyright protection—novels are protected by copyright, while telephone books and other uncreative compilations of data are not. The same distinction should generally be made in relation to potential acts of infringement. Preserving the functional force of the idea-expression distinction in the …
Prosecution In 3-D, Kay L. Levine, Ronald F. Wright
Prosecution In 3-D, Kay L. Levine, Ronald F. Wright
Faculty Articles
Despite the multidimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutors’ case-handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience.
In this Article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps …
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Faculty Articles
Thus, this Article aims to provide newcomers to and infrequent users of international commercial arbitration with a brief introduction to the relationship between international arbitral proceedings and U.S. federal courts. Limitations of space mean that a great deal has necessarily been left out of this discussion. For example, this Article does not describe processes internal to the arbitration, instead focusing solely on the interaction between tribunal, parties and court. Furthermore, the text often skips over basic propositions of U.S. law that are well-established in the domestic realm so as to concentrate more heavily on elements that are unique to international …
A Pragmatic Republic, If You Can Keep It, Bill Sherman
A Pragmatic Republic, If You Can Keep It, Bill Sherman
Faculty Articles
The administrative state has been bedeviled by doubts about its democratic legitimacy and its questionable Constitutional provenance. Courts and scholars attack or shore up this weakness, but almost all proceed on the assumption that the administrative state is a modern leviathan unimaginable to the Founders. Consequently, questions about the role of politics in agency decisions assign a disfavored role to “pure politics” in rulemaking. This Book Review Essay challenges that assumption and its implications for the role of politics in administrative decisionmaking. Centering on a review of Jerry L. Mashaw’s new book, Creating the Administrative Constitution: The Lost One Hundred …
Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani
Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani
Faculty Articles
This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race-conscious admissions policies at the University of Texas at Austin ("UT"). The resolution proposed here addresses Justice Anthony Kennedy's concerns about race-conscious policies, but also preserves most of the Courts 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of "critical mass" and the scope of deference that courts give to universities) by focusing on a simple idea that permeates …
Microinvestment Disputes, Perry Bechky
Microinvestment Disputes, Perry Bechky
Faculty Articles
Salini v. Morocco sparked one of the liveliest controversies in the dynamic field of international investment disputes. Salini held that the word “investment” in the Convention establishing the International Centre for Settlement of Investment Disputes (ICSID), although undefined, has an objective meaning that limits the ability of member states to submit disputes to ICSID arbitration. The Salini debate is central to this field because it shapes the nature, purpose, and volume of ICSID arbitration—and also determines who gets to decide those matters. In particular, Salini’s decision to include “a contribution to development” as an element of its objective definition of …
Reflections On My Colleague, Tom Holdych, Janet Ainsworth
Reflections On My Colleague, Tom Holdych, Janet Ainsworth
Faculty Articles
An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.
Tom Holdych: A Tribute, In “In Memory Of Professor Thomas J. Holdych”, Chris Rideout
Tom Holdych: A Tribute, In “In Memory Of Professor Thomas J. Holdych”, Chris Rideout
Faculty Articles
An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.
Darth Vader, John B. Kirkwood
Darth Vader, John B. Kirkwood
Faculty Articles
An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.
Tribute To Professor Thomas J. Holdych, Annette E. Clark
Tribute To Professor Thomas J. Holdych, Annette E. Clark
Faculty Articles
An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.
Location, Location, Location: Using Cost Of Living To Achieve Tax Equity, James Puckett
Location, Location, Location: Using Cost Of Living To Achieve Tax Equity, James Puckett
Faculty Articles
All other things being equal, the federal income tax ignores whether the taxpayer lives in a relatively affordable or expensive location. This approach can lead to unfairness; moreover, special deductions for the taxpayer's actual living expenses, such as home mortgage interest and state and local taxes, do not solve the problem. Tax law scholars have generally been quick to dismiss the equity issues based on assumptions about taxpayer mobility. The existing literature would tax comparable workers equally, regardless of salary and living costs. This approach would unfairly equate differently situated workers. This article questions the assumption of taxpayer mobility, considers …
Saving The Puget Sound Wild Salmon Fishery, George Van Cleve
Saving The Puget Sound Wild Salmon Fishery, George Van Cleve
Faculty Articles
This article focuses on the prevention of future habitat losses. Part I explores flaws in how existing law deals with habitat protection and outlines alternative policies to improve it. Part II charts the decline of the Puget Sound salmon fishery and discusses the scientific support for the conclusion that habitat protection and restoration is a central element in restoring it. Part III considers how effective administrative action and related endangered species litigation are likely to be as means of protecting habitat. Since Native American tribes face very severe harm from the fishery's potential destruction, Part III also explores their distinctive …
Reframing Roe: Property Over Privacy, Becca Rausch
Reframing Roe: Property Over Privacy, Becca Rausch
Faculty Articles
Roe v. Wade has received much criticism from both sides of the political spectrum. These critiques diverge divisively but for one commonality. Specifically, commentators from both the pro- and anti-choice camps have expressed concern about the absence of an express constitutional right to privacy, upon which the Supreme Court in Roe based its finding of a "fundamental" right to abortion. This lack of express constitutional provision renders the Roe decision, and its resulting reproductive rights, vulnerable. Further, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or governmental support for accessing abortion services. …