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Articles 1 - 30 of 81
Full-Text Articles in Law
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
Washington Law Review
In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …
An Equal Protection Standard For National Origin Classifications: The Context That Matters, Jenny Rivera
An Equal Protection Standard For National Origin Classifications: The Context That Matters, Jenny Rivera
Washington Law Review
The Supreme Court has stated, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause."' Judicial review of legislative race-based classifications has been dominated by the context of the United States' history of race-based oppression and consideration of the effects of institutional racism. Racial context has also dominated judicial review of legislative classifications based on national origin. This pattern is seen, for example, in challenges to government affirmative action programs that define Latinos according to national origin subclasses. As a matter of law, these national origin-based classifications, like race-based classifications, are subject to strict scrutiny and can only …
Defusing The Bomb: The Scope Of The Federal Explosives Statute, Peter Moreno
Defusing The Bomb: The Scope Of The Federal Explosives Statute, Peter Moreno
Washington Law Review
A federal statute, 18 U.S.C. § 844(h)(2) (2000), imposes a mandatory ten-year term of imprisonment on anyone who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States." The United States Courts of Appeals are split over whether the statute must be read to include a relational element such that the crime is carrying explosives in relation to another felony. The Third, Fifth, and Sixth Circuits have rejected the notion that the statute contains such an implicit limitation. In contrast, the Ninth Circuit recently held that the application of § …
Slayers And Soldiers: The Validity And Scope Of The Slayer's Rule Under The Family Servicemembers' Group Life Insurance Act, Rebecca Blasco
Slayers And Soldiers: The Validity And Scope Of The Slayer's Rule Under The Family Servicemembers' Group Life Insurance Act, Rebecca Blasco
Washington Law Review
The "slayer's rule"—a common law doctrine—precludes a murderer from financially benefiting from the victim's death by denying him or her the right to proceeds from the victim's life insurance policy. Some jurisdictions have extended this rule to disqualify the slayer's exclusive family members from receiving the victim's insurance proceeds as beneficiaries. Exclusive family members are those either not related to the victim or related to the victim only by marriage. The slayer's rule applies to federal group life insurance policies, such as the Servicemembers' Group Life Insurance Act (SGLI), which provides life insurance to servicemembers. Spouses and dependent children of …
Admitting Computer Record Evidence After In Re Vinhnee: A Stricter Standard For Future?, Cooper Offenbecher
Admitting Computer Record Evidence After In Re Vinhnee: A Stricter Standard For Future?, Cooper Offenbecher
Washington Journal of Law, Technology & Arts
In re Vinhnee, a Ninth Circuit Bankruptcy Appellate Panel decision, employed Edward Imwinkelried’s eleven-step foundation process for authenticating computer records. In employing the eleven-step process, the Vinhnee court articulated a stricter standard than has previously been used by most courts for admitting computer records into evidence. This Article will first consider the various foundation standards that courts have applied to computer records. Next, the Article will analyze the Vinhnee standard, consider its elements, and compare it to the previous standards and commentary. Finally, the Article will conclude that the Vinhnee approach reflects common concerns by courts and commentators, and …
Frcp 19: A Preferable Alternative To Traditional Judicial Rules For Determining Patent Licensee Standing, Jeffrey Bashaw
Frcp 19: A Preferable Alternative To Traditional Judicial Rules For Determining Patent Licensee Standing, Jeffrey Bashaw
Washington Journal of Law, Technology & Arts
In Aspex Eyewear v. Miracle Optics, a patent infringement claim was initially dismissed because the court found that the parties bringing suit, a patentee and a patent sub-licensee, lacked standing because although the patentee had given all substantial rights to a licensee, the sub-licensee’s license did not convey “all substantial rights.” Thus, neither party had “all substantial rights,” the traditional threshold test for patent licensee standing. While the Federal Circuit ultimately reversed and allowed the suit to go forward, the case demonstrates how the current patent standing rule only magnifies the expense of litigating an infringement suit by requiring …
"Can I See Some Id?" Age Verification Requirements For The Online Liquor Store, Boris Reznikov
"Can I See Some Id?" Age Verification Requirements For The Online Liquor Store, Boris Reznikov
Washington Journal of Law, Technology & Arts
Teenagers are starting to use the Internet to circumvent the ordinarily stringent restrictions on the sale of alcohol to underage individuals. Since states have always punished vendors for furnishing alcohol to minors, companies that choose to sell alcohol online must recognize that they could be criminally and civilly liable if they do not take reasonable precautions to ensure that minors do not obtain their product. This Article examines the steps online alcohol vendors might take in order to protect themselves from liability so that they can continue to run their ventures in a profitable manner.
Ain't Nothing Like The Real Thing: Enforcing Land Use Restrictions On Land And Water Conservation Fund Parks, Michael J. Gelardi
Ain't Nothing Like The Real Thing: Enforcing Land Use Restrictions On Land And Water Conservation Fund Parks, Michael J. Gelardi
Washington Law Review
Congress created the Land and Water Conservation Fund (LWCF) in 1965 to provide resources for states and federal agencies to acquire and develop land for public outdoor recreation. Over the past forty years, the LWCF has quietly become one of the most successful conservation programs in United States history. The federal government and states have used the LWCF to preserve unique landscapes for their natural beauty, scientific value, and wildlife habitat, as well as to encourage traditional recreational pursuits. The LWCF Act prohibits the conversion of LWCF-funded state and local parks to uses other than public outdoor recreation unless approved …
From Stratton To Uscop: Environmental Law Floundering At Sea, Donna R. Christie
From Stratton To Uscop: Environmental Law Floundering At Sea, Donna R. Christie
Washington Law Review
No abstract provided.
Chumming On The Chesapeake Bay And Complexity Theory: Why The Precautionary Principle, Not Cost-Benefit Analysis, Makes More Sense As A Regulatory Approach, Hope M. Babcock
Washington Law Review
"[H]istory reveals not merely that change is real but also that change is various. All change is not the same, nor are all changes equal. Some changes are cyclical, some are not. Some changes are linear, others are not. Some changes take an afternoon to accomplish, some a millennium. We can no more take any particular kind of change as absolutely normative than we can take any particular state of equilibrium as normative .... The challenge is to determine which changes are in our enlightened self-interest and are consistent with our most rigorous ethical reasoning, always remembering our inescapable dependency …
Recovery In A Cynical Time—With Apologies To Eric Arthur Blair, Dale D. Goble
Recovery In A Cynical Time—With Apologies To Eric Arthur Blair, Dale D. Goble
Washington Law Review
The drafters of the Endangered Species Act envisioned a process in which a species at risk of extinction would be protected while the threats it faces are removed so that it recovers. Over the first three decades of experience with the Act, implementation has proved to be far more complex. Recovering at-risk species imposes two different types of requirements. Biologically, recovery is a demographic problem: the species's population must have increased in numbers and dispersed geographically to a point at which nature's random risks have been reduced so that the species is no longer in danger of extinction. The risk-management …
Piecemeal Delisting: Designating Distinct Population Segments For The Purpose Of Delisting Gray Wolf Populations Is Arbitrary And Capricious, Nicole M. Tadano
Piecemeal Delisting: Designating Distinct Population Segments For The Purpose Of Delisting Gray Wolf Populations Is Arbitrary And Capricious, Nicole M. Tadano
Washington Law Review
The Endangered Species Act (ESA) protects species that are in danger of extinction "throughout all or a significant portion of its range." After thirty-three years of protection by the ESA, the gray wolf is gradually recovering from the brink of extinction. Pressure to remove protections for existing gray wolf populations has mounted as human interests have increasingly conflicted with the gray wolfs resurgence. Most courts have defined the phrase "significant portion of its range" in the ESA to mean the historical range of a species. This interpretation is consistent with the legislative history of the ESA and the historical listing …
Murky Waters: Courts Should Hold That The "Any-Progress-Is-Sufficient-Progress" Approach To Tmdl Development Under Section 303(D) Of The Clean Water Act Is Arbitrary And Capricious, Kelly Seaburg
Washington Law Review
Congress enacted the 1972 Amendments to the Clean Water Act (CWA) to combat water pollution stemming from both discrete and diffuse sources. Section 303(d) of the CWA reduces both types of pollution by requiring each state to promulgate "total maximum daily loads" (TMDLs) of pollutants for all waters that are unable to meet water quality standards. A TMDL is the maximum amount of a pollutant that can be discharged from all combined sources into a given body of water if that water is going to comply with water quality standards. Although section 303(d) required states to promulgate TMDLs by 1979, …
Teaching Environmental Law In The Era Of Climate Change: A Few Whats, Whys, And Hows, Michael Robinson-Dorn
Teaching Environmental Law In The Era Of Climate Change: A Few Whats, Whys, And Hows, Michael Robinson-Dorn
Washington Law Review
One of our key objectives at this celebration has been to explore the future of environmental law. To continue the exploration, I've chosen to address not an area of environmental law or environmental practice, but rather the teaching of environmental law. I hope to provoke the dialogue toward answering fundamental questions about what we should teach, why we should teach it, and how we should go about that task. It is an effort that I hope will engage not only the usual suspects for such pieces, a few fellow teachers and the watchful eye of a student law review editor, …
Precaution, Science, And Learning While Doing In Natural Resource Management, Holly Doremus
Precaution, Science, And Learning While Doing In Natural Resource Management, Holly Doremus
Washington Law Review
Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decisionmaking. Too often, though, that challenge is considered only from an ex ante perspective which treats uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions are often iterative or similar, providing significant opportunities for leaming. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decisionmaking while minimizing the key weaknesses …
Beauty And The Beast Within: On The Special Nature Of Natural World Law, Oliver A. Houck
Beauty And The Beast Within: On The Special Nature Of Natural World Law, Oliver A. Houck
Washington Law Review
We are here to celebrate Professor Rodgers and his life in environmental law. As it happens, they grew up together. The new notion of environmental protection gave Bill the chance of his lifetime, to which he returned his full energies, ideas, and writings. In a world of failed relationships, this one was a howling success. Although we have not seen each other more than twice in forty years, I feel a kinship with Bill that seems particularly close. The link is not simply our ages, nor our passion for environmental law, nor even the activism in which both of us …
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
Washington Law Review
Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.
Justice Kennedy And The Environment: Property, States' Rights, And A Persistent Search For Nexus, Michael C. Blumm, Sherry L. Bosse
Justice Kennedy And The Environment: Property, States' Rights, And A Persistent Search For Nexus, Michael C. Blumm, Sherry L. Bosse
Washington Law Review
Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental law cases. Kennedy's central role was never more evident than in the two most celebrated environmental cases of the last few years, Kelo v. City of New London and Rapanos v. United States, as he supplied the critical vote in both. Kennedy has in fact been the needle of the Supreme Court's environmental law compass since his nomination in 1988. Although he wrote surprisingly few environmental law opinions over his first eighteen years on the Court, Kennedy was in the majority …
Reach Out And Text Someone: How Test Message Spam May Be A Call Under The Tcpa, Daniel L. Hadjinian
Reach Out And Text Someone: How Test Message Spam May Be A Call Under The Tcpa, Daniel L. Hadjinian
Washington Journal of Law, Technology & Arts
The Arizona Court of Appeals recently found a business liable for sending an unsolicited advertisement email to a recipient’s wireless phone in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”). The court concluded that an email sent to a wireless phone constitutes a “call,” and noted that such a commercial call created the same concerns about consumer privacy that Congress intended to remedy with the TCPA. This finding is consistent with an earlier Federal Communications Commission ruling. Preliminary cases indicate that other courts may be willing to adopt a similar interpretation of the TCPA. In light of this …
Don't Bet On It: How Complying With Federal Internet Gambling Law Is Not Enough, Jennifer W. Chiang
Don't Bet On It: How Complying With Federal Internet Gambling Law Is Not Enough, Jennifer W. Chiang
Washington Journal of Law, Technology & Arts
It is disputed whether the United States has a blanket federal prohibition on Internet gambling. As a result of the lack of cohesive federal oversight, states have passed their own Internet gambling laws which, depending on the state’s approach, may regulate making bets online, taking bets online and transferring money between bettor and casino. Some even extend to regulating speech and Internet casino advertisements. For example, card rooms and Indian casinos are prevalent in Washington State, but the state legislature recently made placing a bet over the Internet a Class C felony. This Article will analyze the current framework for …
Employee Internet Misuse: How Failing To Investigate Pornography May Lead To Tort Liability, Jamila Johnson
Employee Internet Misuse: How Failing To Investigate Pornography May Lead To Tort Liability, Jamila Johnson
Washington Journal of Law, Technology & Arts
This Article addresses a New Jersey appellate court’s holding which suggests that employers have a common law duty to investigate online misconduct by their employees. In Doe v. XYC Corp., the Appellate Division of the Superior Court of New Jersey held that an employer has a duty to act when (1) it knows that an employee’s use of the Internet would endanger a third person; and (2) it has reason to believe that it may discipline the employee for online activities in the workplace. The court stated that, under this duty to act, an employer must investigate, discipline, and …
Patent Rights Under Foss Licensing Schemes, Shaobin Zhu
Patent Rights Under Foss Licensing Schemes, Shaobin Zhu
Washington Journal of Law, Technology & Arts
Free/Open Source Software (“FOSS”) licenses generally give developers and users the freedom to run software for any purpose, to study and modify software, and to redistribute copies of either the original or the modified software without paying royalties to previous developers. The FOSS community is facing increasing threats from software patents, especially from entities outside the FOSS community. This Article discusses patent rights under FOSS licenses, including the GNU General Public License (“GPL”) 2.0 and draft 3.0, the Apache License and the Mozilla Public License (“MPL”). It also addresses how current GPL draft 3.0 attempts to reconcile the conflict between …
No Refills: The Intellectual Property High Court Decision In Canon V. Recycle Assist Will Negatively Impact The Printer Ink Cartridge Recycling Industry In Japan, Scott M. Tobias
Washington International Law Journal
In its decision in Canon v. Recycle Assist, the Japanese Intellectual Property High Court held that Recycle Assist had infringed on Canon’s patent for a printer ink cartridge by importing used Canon cartridges that had been cleaned and refilled with ink by a third party. The court found that the third party had modified essential elements of Canon’s patented ink cartridge, and therefore the modifications constituted not permissible repair, but infringing and impermissible remanufacture. The court defined essential elements as those intended to solve the technical problems present in similar, prior inventions. Unfortunately, the court failed to define clearly …
Transitional Justice In Korea: Legally Coping With Past Wrongs After Democratization, Kuk Cho
Transitional Justice In Korea: Legally Coping With Past Wrongs After Democratization, Kuk Cho
Washington International Law Journal
For more than a decade, Korean society has taken various legal steps to rectify past wrongs perpetrated by the old authoritarian-military regime. In 1995, the “Special Act Concerning the May 18 Democratization Movement” was passed in the National Assembly. Under this new legal circumstance, the two former presidents were imprisoned on charges of leading the 1979 military coup and brutally oppressing the May 18 Uprising of 1980. However, because such a transition from the authoritarian-military rule was established through a political compromise, Korean society had to experience a limited transitional justice. As another step to rectify past wrongs, the “Act …
Bortz V. Suzuki, Judgment Of October 12, 1999, Hamamatsu Branch, Shizuoka District Court, Timothy Webster
Bortz V. Suzuki, Judgment Of October 12, 1999, Hamamatsu Branch, Shizuoka District Court, Timothy Webster
Washington International Law Journal
The Bortz case links a series of truly comparative moments. In the first, the unsuspecting foreigner crosses into another culture’s blind spot, and emerges a very different person. Ana Bortz was shopping for a necklace in a Japanese jewelry store when the owner asked her where she was from. A westerner in Japan, Bortz likely thought little of the question, having answered it many times. She answered first in Japanese, and then in English, “from Brazil.” Neither response pleased the storeowner. Foreigners, or perhaps just Brazilians, were not allowed in the store. Their ensuing argument revealed other comparative moments. Enraged …
In The Wake Of Sakhalin Ii: How Non-Governmental Administration Of Natural Resources Could Strengthn Russia's Enery Sector, Nowell David Beckett Bamberger
In The Wake Of Sakhalin Ii: How Non-Governmental Administration Of Natural Resources Could Strengthn Russia's Enery Sector, Nowell David Beckett Bamberger
Washington International Law Journal
Russia’s economically vital oil and gas industry is at a crossroads. Although foreign investment favored European nations in the wake of the Soviet collapse, in recent years American and European oil and gas companies have invested billions of dollars in Russia’s energy development and export distribution sectors. However, the 2006 restructuring of the $20 billion Sakhalin II project demonstrates that Russia’s energy sector has still not stabilized from the turbulent privatization of the 1990s. This comment explores the legal structures and Government policies affecting Russia’s oil and gas industry for evidence of the causes of institutional instability. It argues that …
Intellectual Property Rights And The Public Sector: Why Compulsory Licensing Of Protected Technologies Critical For Food Security Might Just Work In China, Gregory C. Ellis
Intellectual Property Rights And The Public Sector: Why Compulsory Licensing Of Protected Technologies Critical For Food Security Might Just Work In China, Gregory C. Ellis
Washington International Law Journal
The majority of people in the developed world have the luxury of never having to address food shortages and malnutrition. In developing countries, however, ensuring food security presents greater challenges. Agricultural biotechnology has the potential to alleviate many of the food crises occurring in developing countries. Unlike private sector corporations, public sector entities are creating genetically modified (“GM”) crops to ensure food security. However, the intellectual property rights (“IPRs”) to the many technologies required to create a single GM crop are often fragmented across the private and public sectors. Fragmentation of IPRs creates a “patent thicket” that increases the challenges …
The Applicability Of The Consumer Protection Law In Medical Malpractice Disputes In Taiwan, Ya-Ling Wu
The Applicability Of The Consumer Protection Law In Medical Malpractice Disputes In Taiwan, Ya-Ling Wu
Washington International Law Journal
The issue of whether or not no-fault liability under the Consumer Protection Law (“CPL”) applies in medical malpractice disputes has been a contentious battle in Taiwan. In Bo-Li Li v. Mackay Memorial Hospital, the Taipei District Court interpreted medical care as “services” under Article 7 of the CPL. Under this interpretation, patient services must meet “reasonably expected safety standards,” while health care providers are subject to no-fault liability. This interpretation was strenuously opposed by the medical profession and invoked much debate over its validity in the legal field. After the Bo-Li case, the lower courts expressed different views on …
A Condom Versus The Philippine Aids Prevention And Control Act Of 1998: Which Has Holes Leaving Filipinos Unprotected?, David M. Iseminger
A Condom Versus The Philippine Aids Prevention And Control Act Of 1998: Which Has Holes Leaving Filipinos Unprotected?, David M. Iseminger
Washington International Law Journal
In 1998, the Philippine legislature passed pioneering HIV/AIDS legislation in Southeast Asia called the AIDS Prevention and Control Act (“APCA” or “Act”). This comprehensive legislation sought, in part, to ensure access to health care information and to stop the spread of diseases like HIV/AIDS. Regulations were promulgated by the Philippine National AIDS Council in 1999 to implement the Act. APCA effectively addresses several important HIV/AIDS issues, including prohibiting discrimination and mandatory HIV testing, while ensuring access to basic health care. However, both the regulations and the Act fail to ensure that all scientifically accurate information regarding HIV/AIDS prevention reaches Filipinos. …
Extending The Reach Of The Chinese Labor Law: How Does The Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution, Jill E. Monnin
Extending The Reach Of The Chinese Labor Law: How Does The Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution, Jill E. Monnin
Washington International Law Journal
Chinese workers are taking advantage of the dispute resolution tools that legal reform has provided in the past decade, including mediation, arbitration, and litigation. Despite a history of resolving disputes through informal mediation, more and more workers are relying on the new pathways of arbitration and civil suits in local courts. The 1993 Regulations on the Resolution of Enterprise Labor Disputes and the 1994 Labor Law facilitated workers’ access to formal legal forums. Then, in 2006, a Supreme People’s Court (“SPC”) interpretation made a number of important changes to the application of the Labor Law and workers’ access to dispute …