Law Commons^™

State Crypto Regulation: Competing Priorities Shaping Different Outcomes, John T. Bender

Seattle Journal of Technology, Environmental & Innovation Law

“Cryptomania” is approaching fever pitch. Public officials, practitioners, and investors alike are becoming convinced that what began as a thought experiment has given rise to a full-fledged movement that is here to stay. This movement could potentially transform the modern financial system as we know it.

Today, crypto assets and related platforms are increasingly being adopted to store, secure, and transmit massive amounts of monetary value worldwide. Enforcement agencies like the Securities and Exchange Commission and the Commodity Futures and Trading Commission have ventured into the fray by employing existing legal regimes to regulate in this new frontier. At the …

The Future Of The Agricultural Industry – Is Blockchain A New Beginning?, Ryan Bisel

Seattle University Law Review

As we advance into a digital era, we begin to depend on technological innovations to rapidly help develop and update processes and methods within different industries. Blockchain technology—popularized by cryptocurrency—is slowly making its debut in the agricultural supply chain. Implementing a blockchain requirement for suppliers would be beneficial because it would allow agricultural suppliers and distributors to track their products in a more efficient manner. However, there are four potential legal issues that are foreseeable: (1) preemption, (2) overlapping regulatory authority, (3) applying current legal rules to new technology, and (4) contracting. This Note will specifically focus on issues of …

Tragedy Of The Energy Commons: How Government Regulation Can Help Mitigate The Environmental And Public Health Consequences Of Cryptocurrency Mining, Jeff Thomson

Seattle Journal of Technology, Environmental & Innovation Law

The use of cryptocurrencies in daily life has continued to rise over the last decade and shows no signs of slowing down. Although cryptocurrencies, such as Bitcoin, provide numerous tangible benefits to society, the process of mining these cryptocurrencies is extremely energy intensive. Accordingly, a tragedy of the energy commons has resulted whereby the monetary incentive to mine cryptocurrencies has distorted our collective ability to care for our shared energy resources. The current system allows for industrious individuals to set up cryptocurrency mines in regions that have access to plentiful and cheap energy sources, utilize this energy to power their …

Regulating Banking Ethics: A Toolkit, David Zaring

Seattle University Law Review

There is little doubt that culture matters for institutions—entities ranging from economics departments to soccer teams spend plenty of time thinking about the cultures they hope to foster—and that culture is also exceedingly hard to measure or define. Regulators now have had a decade since the financial crisis to operationalize their approach to guiding and improving the ethics and culture of the banks they oversee. Understanding what they have chosen to do makes it easier to assess the value of the effort to make cultural transformation an important part of a regulatory program. It also offers lessons to the broader …

Trying Something Old?: Incorporating The Dodd-Frank Act Into Modern Efforts To Eliminate Workplace Sexual Harassment, Rosemary Kim

Seattle University Law Review

The recent exposure of public figures such as Harvey Weinstein and Bill Cosby show that current measures taken to curb sexual harassment in the workplace have not proven to be enough. It is, then, important and worth exploring Acts from different sectors that have proven effective and then applying the provisions from those Acts to address this issue. This Note will explore the Dodd–Frank Act and pick out the provisions that have potentiality to be adopted and applied in addressing sexual harassment in the workplace. “It is common sense to take a method and try it. If it fails, admit …

The Gdpr: It Came, We Saw, But Did It Conquer?, Leila Javanshir

Seattle University Law Review

On February 1, 2019, the Seattle University Law Review held its annual symposium at the Seattle University School of Law. Each year, the Law Review hosts its symposium on a topic that is timely and meaningful. This year, privacy and data security professionals from around the globe gathered to discuss the current and future effects of the General Data Protection Regulation (GDPR) that was implemented on May 25, 2018. The articles and essays that follow this Foreword are the product of this year’s symposium.

Confiding In Con Men: U.S. Privacy Law, The Gdpr, And Information Fiduciaries, Lindsey Barrett

Seattle University Law Review

In scope, ambition, and animating philosophy, U.S. privacy law and Europe’s General Data Protection Regulation are almost diametric opposites. The GDPR’s ambitious individual rights, significant prohibitions, substantive enforcement regime, and broad applicability contrast vividly with a scattershot U.S. regime that generally prioritizes facilitating commerce over protecting individuals, and which has created perverse incentives for industry through anemic enforcement of the few meaningful limitations that do exist. A privacy law that characterizes data collectors as information fiduciaries could coalesce with the commercial focus of U.S. law, while emulating the GDPR’s laudable normative objectives and fortifying U.S. consumer privacy law with a …

Privacy Statements Under The Gdpr, Mike Hintze

Seattle University Law Review

The need to include specific types of information in a privacy statement is a GDPR compliance obligation that does not get as much attention as some other GDPR requirements. Perhaps that is because privacy statements have been much maligned in recent years. They are too long and full of legalese. Nobody reads them. They are part of a notice and consent approach to privacy that puts an unrealistic burden on consumers to make informed choices. But despite these well-known criticisms, the GDPR doubles down on privacy statements. In fact, gauging by the roughly fourfold increase in privacy statement requirements compared …

The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William W. Bratton

Seattle University Law Review

This essay casts additional light on The Modern Corporation’s corporatist precincts, shifting attention to the book’s junior coauthor, Gardiner C. Means. Means is accurately remembered as the generator of Book I’s statistical showings—the description of deepening corporate concentration and widening separation of ownership and control. He is otherwise more notable for his absence than his presence in today’s discussions of The Modern Corporation. This essay fills this gap, describing the junior coauthor’s central concern—a theory of administered prices set out in a Ph.D. dissertation Means submitted to the Harvard economics department after the book’s publication.

The Gm Food Debate: An Evaluation Of The National Bioengineered Food Disclosure Standard And Recommendations For The United States Based On Food Justice, Courtnee Grego

Seattle University Law Review

This Note aims to identify the food justice issues caused by the National Bioengineered Food Disclosure Standard (NBFDS) and make recommendations for the United States to minimize these concerns. The NBFDS requires the United States Department of Agriculture (USDA) to draft regulations establishing a mandatory disclosure standard for GM food and ultimately, will require a disclosure on the package of any GM food sold in the United States. Part I of the Note provides an overview of the genetically modified (GM) food debate. Part II reviews the NBFDS. Part III explains the food justice implications of GM food production. Part …

The Gm Food Debate: An Evaluation Of The Nationalbioengineered Food Disclosure Standard Andrecommendations For The United States Based On Foodjustice, Courtnee Grego

Seattle University Law Review

This Note aims to identify the food justice issues caused by the National Bioengineered Food Disclosure Standard (NBFDS) and make recommendations for the United States to minimize these concerns. The NBFDS requires the United States Department of Agriculture (USDA) to draft regulations establishing a mandatory disclosure standard for GM food and ultimately, will require a disclosure on the package of any GM food sold in the United States. Part I of the Note provides an overview of the genetically modified (GM) food debate. Part II reviews the NBFDS. Part III explains the food justice implications of GM food production. Part …

Salmon With A Side Of Genetic Modification: The Fda’S Approval Of Aquadvantage Salmon And Why The Precautionary Principle Is Essential For Biotechnology Regulation, Kara M. Van Slyck

Seattle University Law Review

This Note seeks to address the issues concerning the FDA’s approval of genetically modified salmon for consumption, arguing that the FDA did not properly vet AquAdvantage salmon, as well as relied on inappropriate criteria in their approval of its market use. Part I provides a brief history of AquAdvantage salmon’s introduction to U.S. markets and the legal actions taken in response to the FDA ruling. Part II discusses the statutes and regulations fundamentally relevant to GE products, as well as a critique of the way each regulation was used to approve AquAdvantage. Part III offers a comparison to the European …

Inevitable Imbalance: Why Ftc V. Actavis Was Inadequate To Solve The Reverse Payment Settlement Problem And Proposing A New Amendment To The Hatch-Waxman Act, Rachel A. Lewis

Seattle University Law Review

The law regarding reverse payment settlements is anything but settled. Reverse payment settlements are settlements that occur during a patent infringement litigation in which a pharmaceutical patent holder pays a generic drug producer to not infringe on the pharmaceutical patent. Despite the recent decision by the United States Supreme Court in FTC v. Actavis, Inc., there are still unanswered questions about how the “full rule of reason” analysis will be applied to reverse payment. This Comment argues that despite the outcome in Actavis, the complex regulatory framework of the Hatch–Waxman Act will create repeated conflicts between antitrust law and patent …

Financial Innovation In East Asia, Ross P. Buckley, Douglas W. Arner, Michael Panton

Seattle University Law Review

Finance is important for development. However, the Asian financial crisis of 1997–1998 and the global financial crisis of 2008 highlighted the serious risks associated with financial liberalization and excessive innovation. East Asia’s strong focus on economic growth has necessitated a careful balancing of the benefits of financial liberalization and innovation against the very real risks inherent in financial sector development. This Article examines the role of regulatory, legal, and institutional infrastructure in supporting both financial development and limiting the risk of financial crises. The Article then addresses a series of issues with particular developmental significance in the region: trade finance, …

Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien

Seattle University Law Review

The global investigations into the manipulation of the London Interbank Offered Rate (Libor) have raised significant questions about how conflicts of interest are managed for regulated entities contributing to benchmarks. An alternative framework, which brings the management of the rate process under direct regulatory supervision, is under consideration, coordinated by the International Organization of Securities Commissions taskforce. The articulation of global principles builds on a review commissioned by the British government that suggests rates calculated by submission can be reformed. This paper argues that this approach is predestined to fail, precisely because it ignores the lessons of history. In revisiting …

Evaluating The Performance And Accountability Of Regulators, Colin Scott

Seattle University Law Review

The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. In this Article, I follow the logic of an argument that regulation necessarily has political dimensions, even where it may appear technical. I am asking questions about how we might …

Costing A Pretty Penny: Online Penny Auctions Revive The Pestilence Of Unregulated Lotteries, David R. Konkel

Seattle University Law Review

Penny auctions, an online phenomenon imported from Europe, operate by the hundreds in the United States without meaningful oversight from consumer protection agencies. In a penny auction, consumers compete for items one penny at a time. To date, no significant inquiry, either academic or practical, into the legitimacy of the penny auction has occurred. Although marketed as auctions, online penny auctions may actually qualify as lotteries. Unlike the multifarious and confusing definitions of gambling, the long-accepted definition of a lottery consists of three elements: prize, consideration, and chance. If a penny auction satisfies this definition then, under well-established case law …

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Seattle University Law Review

When the state acts as a market regulator, the dormant Commerce Clause invalidates discriminatory regulation without the need for an order against the state. The courts simply refuse to enforce the state law on the ground that it is unconstitutional. When the state acts as a market participant, however, the court would have to direct its order against the state or its officials to negate the discrimination. This produces a direct confrontation with the state, the same kind of confrontation the clear statement rule was designed to avoid. Part II of this article examines the theory of the dormant Commerce …

Restoring Property Rights In Washington: Regulatory Takings Compensation Inspired By Oregon's Measure 37, Kelly Michelle Kelley

Seattle University Law Review

Part II of this Comment provides a background of regulatory takings jurisprudence, outlining both the U.S. Supreme Court's and Washington courts' respective analyses of regulatory takings challenges under the takings clauses of both the U.S. and Washington Constitutions. Part III discusses the threshold compensation statutes that have been enacted by four states in an effort to remedy the problem of regulatory takings. Part IV examines Oregon's Measure 37 and the lawsuit that validated its constitutionality. Part V analyzes Washington's proposed property rights measure, Initiative 933, and argues that Washington needs a regulatory takings compensation statute. Finally, Part VI concludes that …

Harm To The "Fabric Of Society" As A Basis For Regulating Otherwise Harmless Conduct: Notes On A Theme From Ravin V. State, Eric A. Johnson

Seattle University Law Review

This article explores the possibility that harm to the fabric of society provides the best justification for some statutes that prohibit otherwise harmless conduct. This article considers three illustrations: first, the incest statutes, which, even in progressive states like Alaska and New York, prohibit a wide array of basically harmless conduct; second, a Massachusetts statute regulating the use of human silhouettes in target practice; and finally, legislation that would prohibit the medical procedure known as "partial-birth abortion.'" After discussing these illustrations, there is a close analysis of the general argument for the preservation of moral reaction patterns. The ultimate validity …

Lindsey V. Tacoma-Pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption And The Federal Cigarette Labeling And Advertising Act, Harold C. Reeder

Seattle University Law Review

The Article evaluates Lindsey and other recent cases dealing with local regulations restricting tobacco advertising; it also examines their respective preemption analyses, suggesting that the use of the FCLAA's preemption provision against such regulations is unwarranted. The article argues that in Lindsey, the Ninth Circuit misconstrued the Supreme Court's discussion of the preemptive scope of the FCLAA by failing to read it in the proper contex and that the FCLAA's preemption provision was not intended to prevent the particular types of regulations involved in Lindsey and these other cases. It argues that the preemption provision was only meant to …

The New Law Of Asset Securitization In Japan, Michael T. Kawachi

Seattle University Law Review

This Article discusses one financial product developed in the United States and expected to develop in Japan as a result of recent legislation adopted there. The Article examines the high degree of regulation of this new financial product under that legislation and concludes that such regulation, while common in Japan, will delay the full development of the market in Japan. This Article begins with a description of an important financial tool first developed in the United States, the securitization of financial assets. The Article next examines several aspects of the new Japanese legislation and reviews the provisions of that legislation. …

Osha Regulation Of Low-Exposure Carcinogens: A New Approach To Judicial Analysis Of Scientific Evidence, Victor B. Flatt

Seattle University Law Review

This Article will examine the legal framework governing OSHA risk regulation, the scientific studies and evidence that the judiciary currently accepts for challenging or supporting this regulation, and the effect of this standard of judicial acceptance on OSHA regulation. This Article will then compare the present state of judicial analysis of scientific evidence with alternative analyses in order to determine the most effective means of promoting a level of worker safety regulation that creates the greatest benefit to society within the legal framework established by Congress.

Regulatory Taking Doctrine In Washington: Now You See It, Now You Don't, Richard L. Settle

Seattle University Law Review

Within a recent two-month period, the Washington Supreme Court issued decisions in two major regulatory taking cases, Orion Corporation v. State, and Allingham v. City of Seattle. In both cases, land use regulations were challenged on the basis of the taking clauses of the federal and state constitutions. This Article analyzes and critically assesses Orion's ambitious doctrinal initiative in light of the Allingham enigma and charts a tentative course toward more coherent regulatory taking doctrine. A pervasive and hopeful theme of the Article is that a latent, largely unarticulated or misstated doctrine exists, just waiting for explicit judicial …