Law Commons^™

A Loophole In The Fourth Amendment: The Government's Unregulated Purchase Of Intimate Health Data, Rhea Bhatia

Washington Law Review Online

Companies use everyday applications and personal devices to collect deeply personal information about a user’s body and health. While this “intimate health data” includes seemingly innocuous information about fitness activities and basic vitals, it also includes extremely private information about the user’s health, such as chronic conditions and reproductive health. However, consumers have no established rights over the intimate health data shared on their devices. Believing that these technologies are created for their benefit, consumers hand over the most intimate aspects of their lives through health-related applications relying on the promise that their data will remain private. Today, the intimate …

When Patent Litigators Become Neurosurgeons, Katie Chang

Washington Law Review Online

Patent law is where the law meets the most cutting-edge and innovative technology of its time. Usually, subject matter experts, with the help of lawyers, are the ones applying for patents. But when it comes to granting and enforcing patent rights, the job falls onto lawyers and judges, who, for the most part, are likely not experts in the relevant technical field. Bridging the gap between technological expertise and legal expertise has been a pain point in patent litigation, one that Congress has tried to rectify for many years. This Comment primarily examines one of Congress’s solutions—the Patent Pilot Program—and …

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 …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

Franco I Loved: Reconciling The Two Halves Of The Nation’S Only Government-Funded Public Defender Program For Immigrants, Amelia Wilson

Washington Law Review Online

Detained noncitizens experiencing serious intellectual and mental health disabilities are among the most vulnerable immigrant populations in the United States. The Executive Office for Immigration Review’s (EOIR) creation of the National Qualified Representative Program (NQRP) following a class action lawsuit was an important step in finally bringing meaningful protections to this population. The EOIR pledged to ensure government-paid counsel for those facing removal who had been adjudicated “incompetent” by an immigration judge, as well as other protections for those who had been identified as having a “serious mental disorder” but who had not yet been found incompetent. The NQRP is …

The Finality Of Unmodified Appellate Commissioner Rulings In Washington State, Aurora R. Bearse

Washington Law Review Online

In Washington appellate courts, unelected court commissioners handle most of the motion practice. Some motions are minor and mostly procedural, but other motions touch on the scope of the appeal or its merits. Because commissioners have the power to shape the course of an appeal, the Washington Rules of Appellate Procedure allow parties to internally appeal any commissioner decision to a panel of elected judges, via what is called a “motion to modify” under RAP 17.7. If a panel modifies a commissioner’s ruling, the panel’s decision becomes the final decision of the court on that issue. Similarly, multiple opinions recognize …

“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 …

Judicial Discretion Is Advised: The Lack Of Discretionary Appointments Of Counsel For Children In Washington State Dependency Proceedings, Marisa Forthun

Washington Law Review Online

State agencies initiate dependency proceedings when a child is alleged, often due to parental neglect or abuse, to be a dependent of the state. The state must intervene “[w]hen parents do not comply with [Child Protective Services] requirements, or when the state believes the child is at too great a risk to remain at home even if parents were to comply with services.” Dependency proceedings usually take place in juvenile courts and involve the local state agency, the parents, and the child. After the government files a petition alleging circumstances of neglect or abuse, “[t]he court issues temporary orders regarding …

Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment, Grace Egger

Washington Law Review Online

Video doorbells have proliferated across the United States and Amazon owns one of the most popular video doorbell companies on the market—Ring. While many view the Ring video doorbell as useful technology that protects the home and promotes safer neighborhoods, the product reduces consumer privacy without much recourse. For example, Ring partners with cities and law enforcement agencies across the United States thereby creating a mass surveillance network in which law enforcement agencies can watch neighborhoods and access Ring data without the user’s knowledge or consent. Because Amazon is not a state actor, it is able to circumvent the due …

Washington's One-Size-Fits-All Unemployment Compensation Eligibility In Cases Of Voluntary Separation, Julia Fleming

Washington Law Review Online

Washington State’s Employment Security Act allows individuals who voluntarily left their jobs to be eligible for unemployment benefits if they quit their position with “good cause.” In structuring this Act, the state’s legislature has confined the definition of good cause to a one-size-fits-all list consisting of eleven circumstances. Consequently, if a situation arises that forces an individual to quit their job, yet does not fall into one of those eleven outlined circumstances, the Employment Security Department will disqualify the individual from receiving unemployment benefits. In comparison with other states’ unemployment laws, Washington’s system is quite limited, allowing no discretion under …

State Action And Gender (In)Equality: The Untapped Power Of Washington's Equal Rights Amendment, Maria Yvonne Hodgins

Washington Law Review Online

Washington’s Equal Rights Amendment (ERA) is a powerful legal tool. Its sweeping, protective language triggers the application of an absolute standard of review—a level of review even higher than strict scrutiny. Yet the ERA is underutilized by litigants seeking protection against gender-based discrimination. This may be due to the inconsistencies in the Washington State Supreme Court’s state action jurisprudence. Though the ERA includes the phrasing “under the law,” its plain language does not necessarily support a finding of a state action requirement. The state action doctrine is grounded in federalism and separation of power concerns that are not present at …

Accounting For Environmental Standards, Malori M. Mcgill

Washington Law Review Online

A meaningful percentage of the regulation that companies in the United States must follow concerns two distinct topics: accounting and the environment. The values underlying the regulatory framework of securities and the environment are distinct, but they are not wholly opposite. This Comment responds to growing trends of private governance in the area of environmental regulation. Besides federal regulation, a significant portion of environmental regulation touching U.S. companies today remains sourced from and enforced by private standard-setters. Federal accounting regulations are now governed by the Financial Accounting Standards Board (FASB)––a private entity recognized by the Securities and Exchange Commission (SEC)––but …

Challenging Presidential Tweets, Mallory Barnes-Ohlson

Washington Law Review Online

Presidents have tried to control agency behavior for decades. The rise of social media gave the President new and innovative tools for controlling agency behavior. As President Obama demonstrated during his time in office, social media became a platform through which the President could communicate to his constituents, align himself with agency actions he supported, and urge agencies to enact policies he favored. After he was elected in November of 2016, President Donald Trump continued his predecessor’s use of social media to engage with both agencies and the public. Different from his predecessor, however, President Trump and his presidential orders …

Science Or Status Quo? Disregard For A Defendant's Mental Illness In Tort Suits, Gabrielle Lindquist

Washington Law Review Online

Mental illness is almost never considered when courts determine whether a defendant is liable for a tort. Nearly every United States jurisdiction—Washington state included—declines to offer a modified “reasonable person” standard for negligent tort defendants with mental illnesses or any form of mental illness-based affirmative defense for intentional tort defendants. There is much debate about whether tort law should evolve to accommodate defendants with mental illnesses. This Comment seeks to dive deeper into why that debate persists.

Although there are numerous justifications for this current state of tort law, the most common rationalizations given are twofold. First, that the primary …

Registering A Home When Homeless: A Case For Invalidating Washington’S Sex Offender Registration Statute, Sarah Kohan

Washington Law Review Online

Sex offenders experiencing homelessness face unique challenges in Washington that sex offenders with housing do not. When individuals commit a sex offense, they are required to register as a sex offender by providing the state with a current home address. But what happens if an offender has no home? Currently, Washington’s sex offender registration statute forces sex offenders experiencing homelessness to appear in person weekly at the county sheriff’s office to meet registration requirements. Failing to appear for even one week can result in a charge for failure-to-register as a sex offender. In contrast, the statute requires non-homeless sex offenders …

The Birth Of Fertility Fraud: How To Protect Washingtonians, Sarah Chicoine

Washington Law Review Online

Doctors in multiple states have been accused of using their own sperm to impregnate patients without the patient’s consent. Because most states do not have laws prohibiting fertility doctors from using their own sperm to impregnate their patients, families have not been able to seek meaningful legal remedies. State legislatures enacted new fertility fraud laws to deter, criminalize, and provide a legal civil cause of action to those harmed by these actions—but only after these allegations came to light. If the Washington State Legislature creates a law before any similar allegations come to light in Washington, those patients harmed in …

Save Your Breath: A Constitutional Analysis Of The Criminal Penalties For Refusing Breathalyzer Tests In The Wake Of Birchfield V. North Dakota, Kylie Fisher

Washington Law Review Online

Statutes that criminally penalize suspected drunk drivers who refuse to submit to testing of their blood alcohol concentration emerged in a number of states as a way to better enforce implied consent statutes that require drivers submit to such testing. In Birchfield v. North Dakota, the Supreme Court held that statutes that criminally punish individuals for refusing a blood test were unconstitutional but upheld criminal refusal statutes regarding breath tests. Much of the reasoning in the majority’s opinion stemmed from a shallow perception of the invasion that breath tests pose to individual privacy interests. Justice Sotomayor’s dissenting opinion noted …

Privacy's Double Standards: Public Disclosure Tort Case Chart (2006-2016), Scott Skinner-Thompson

Washington Law Review Online

This is a chart of public disclosure tort cases analyzed in Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev. 2051 (2018).

Response To Professor Rosenbloom: Fifty Shades Of Gray Infrastructure: Land Use And The Failure To Create Reslient Cities, 93 Wash. L. Rev. 317 (2018), Roberta F. Mann

Washington Law Review Online

This piece is a response to Jonathan Rosenbloom, Fifty Shades of Gray Infrastructure: Land Use and The Failure to Create Resilient Cities, 93 Wash. L. Rev. 317 (2018).

Defining Attorney-Client Privilege For The Independent Contractor: A Case For The Functional Equivalent Doctrine In Washington, Benjamin J. Robbins

Washington Law Review Online

Corporations increasingly rely on independent contractors to fulfill basic organizational needs. This increased reliance has created a number of legal issues, one of which is the level of privilege extended to communications between contractors and legal counsel for the contracting corporation. This issue is particularly relevant for corporations in the “gig economy,” like Uber, Lyft, and Postmates, which rely on independent contractors for fundamental business functions. Washington State courts have yet to decide whether independent contractors are entitled to attorney-client privilege regarding these conversations. Generally, Washington courts follow the U.S. Supreme Court’s “Upjohn rule,” which protects communications between corporate counsel …

The "Time Of Arrest" Rule: How The Washington State Supreme Court Untethered Its Search Incident To Arrest Jurisprudence From The Exception's Underlying Rationales, Laura Zanzig-Wong

Washington Law Review Online

The search incident to arrest exception is based on two exigencies: officer safety and evidence preservation. In searches incident to arrest of an arrestee’s person, these exigencies are presumed. Recently, the Washington State Supreme Court extended this presumption to all items carried by an arrestee at the time of arrest, regardless of whether the arrestee can access such items at the time of the search. I argue that this extension untethers the search incident to arrest doctrine from its underlying rationales and focuses too heavily on the practical issue of transporting an arrestee’s belongings to the station post-arrest. In doing …

Radical Jurisprudence, Benjamin Gould

Washington Law Review Online

A neighbor digs a ditch on his side of a property line, exposing root systems from two of the adjoining landowner’s trees. The neighbor then cuts off the exposed roots, leaving the trees unsupported and in danger of falling onto the house of their owner. Is the root cutter liable to the owner of the tree? The Washington Court of Appeals recently answered this question in Mustoe v. Ma. The Mustoe Court held that when a root-cutting neighbor removed encroaching tree roots, he owed no duty to the tree owner “to act in good faith and to act reasonably so …

Privacy Commitments, Rachel Wilka

Washington Law Review Online

What responsibilities do corporations have with regard to their consumers’ information? Many articles have looked at ways to make personal information the “property” of the consumer. Property approaches attempt to overlay personal information on the legal frameworks of trade secret, trademark, and copyright law. While each approach has its merits, and contributes to the field, none of the proposals generate a concrete way for a consumer to enforce his or her rights against a company. The proposals all suffer from the same fatal flaw, a new system must not just create a consumer right but also balance the inequities in …

Response To Professor Rosenbloom: Fifty Shades Of Gray Infrastructure: Land Use And The Failure To Create Reslient Cities, 93 Wash. L. Rev. 317 (2018), Roberta F. Mann

Washington Law Review Online

This piece is a response to Jonathan Rosenbloom, Fifty Shades of Gray Infrastructure: Land Use and The Failure to Create Resilient Cities, 93 Wash. L. Rev. 317 (2018).

Beyond Corporate Contract: A Response To Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions In Corporate 'Contracts', Verity Winship

Washington Law Review Online

This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018).

Jevic'S Promise: Procedural Justice In Chapter 11, Pamela Foohey

Washington Law Review Online

This piece is a response to Jonathan C. Lipson, The Secret Life of Priority: Corporate Reorganization after Jevic, 93 Wash. L. Rev. 631 (2018).

You Can’T Save Dead People: The Emerging Battles Over Supervised Consumption Sites, James Satterberg

Washington Law Review Online

The United States is experiencing a drug overdose epidemic of historic proportions. As fatal overdose rates continue to increase, some jurisdictions have sought evidence-based solutions to this public health issue. This Comment concerns one proposed remedy in particular: supervised consumption sites. In a supervised consumption site, drug users are encouraged to consume their own drugs at the facility. Facility staff give drug users clean equipment, teach safe injection techniques, and, most importantly, monitor drug users for symptoms of overdose. If a staff member witnesses an overdose, they act to prevent the overdose from becoming fatal. Research conducted on supervised consumption …

Privacy's Double Standards: Public Disclosure Tort Case Chart (2006-2016), Scott Skinner-Thompson

Washington Law Review Online

This is a chart of public disclosure tort cases analyzed in Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev. 2051 (2018).

Defining Attorney-Client Privilege For The Independent Contractor: A Case For The Functional Equivalent Doctrine In Washington, Benjamin J. Robbins

Washington Law Review Online

Corporations increasingly rely on independent contractors to fulfill basic organizational needs. This increased reliance has created a number of legal issues, one of which is the level of privilege extended to communications between contractors and legal counsel for the contracting corporation. This issue is particularly relevant for corporations in the “gig economy,” like Uber, Lyft, and Postmates, which rely on independent contractors for fundamental business functions. Washington State courts have yet to decide whether independent contractors are entitled to attorney-client privilege regarding these conversations. Generally, Washington courts follow the U.S. Supreme Court’s “Upjohn rule,” which protects communications between corporate counsel …

The "Time Of Arrest" Rule: How The Washington State Supreme Court Untethered Its Search Incident To Arrest Jurisprudence From The Exception's Underlying Rationales, Laura Zanzig-Wong

Washington Law Review Online

The search incident to arrest exception is based on two exigencies: officer safety and evidence preservation. In searches incident to arrest of an arrestee’s person, these exigencies are presumed. Recently, the Washington State Supreme Court extended this presumption to all items carried by an arrestee at the time of arrest, regardless of whether the arrestee can access such items at the time of the search. I argue that this extension untethers the search incident to arrest doctrine from its underlying rationales and focuses too heavily on the practical issue of transporting an arrestee’s belongings to the station post-arrest. In doing …