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Articles 1 - 30 of 98
Full-Text Articles in Law
Wait! Don't Fire That Blogger! What Limits Does Labor Law Impose On Employer Regulation Of Employee Blogs?, Carson Strege-Flora
Wait! Don't Fire That Blogger! What Limits Does Labor Law Impose On Employer Regulation Of Employee Blogs?, Carson Strege-Flora
Washington Journal of Law, Technology & Arts
The Ninth Circuit Court of Appeals recently issued a decision protecting the right of an employee to post critical comments about his employer on a website. The court found that the employer’s discipline was an unfair labor practice prohibited by federal labor law because it was “concerted activity” protected by the National Labor Relations Act (NLRA). Employers wishing to discipline employees for their public blogging activity should be familiar with the protections provided by the NLRA. This Article explores the consequences for violating the Act and addresses what employers should consider when attempting to limit employee blogging.
The Fight To Save America's Inbox: State Legislation And Litigation In The Wake Of Can-Spam, Emma Scanlan
The Fight To Save America's Inbox: State Legislation And Litigation In The Wake Of Can-Spam, Emma Scanlan
Washington Journal of Law, Technology & Arts
The fight to curb the ever-increasing amount of unsolicited commercial email or “spam” showing up in the inboxes of American businesses has generated both state and federal legislation. The CAN-SPAM Act of 2003 was enacted to create a bright-line between spam and legal commercial email. The Act preempted many state spam laws but also left significant enforcement abilities to the individual states. States that elect to create large civil damages for spam without criminalizing the transmission of unsolicited commercial email run the risk of winning cases where the damage awards are largely unenforceable and not effective deterrents to big-time spammers. …
American And French Perspectives On Trademark Keying: The Courts Leave Businesses Searching For Answers, Terrance J. Keenan
American And French Perspectives On Trademark Keying: The Courts Leave Businesses Searching For Answers, Terrance J. Keenan
Washington Journal of Law, Technology & Arts
Trademark owners in America and Europe are attacking the lucrative practice of selling search results and advertising linked to searches based on product names and trademarks, which is known as trademark keying. From makers of luxury products to travel companies, and insurance companies to home décor vendors, companies have sued Internet search providers to stop this practice that they believe amounts to trademark infringement. Recent cases against search engine companies in American and French courts reflect divergent views on the legality of the practice at this early stage of the debate. This Article evaluates recent rulings in both jurisdictions which …
Electronic Case Filing: Is Failure To Check Email Related To An Electronically Filed Case Malpractice?, Jessica Bekskis
Electronic Case Filing: Is Failure To Check Email Related To An Electronically Filed Case Malpractice?, Jessica Bekskis
Washington Journal of Law, Technology & Arts
This article explores electronic case filing and the duties of lawyers with regard to electronic filing. A recent federal district court case held that an attorney’s failure affirmatively to check the status of his case via email or the court’s PACER system, which resulted in dismissal of the case, did not constitute excusable neglect under Rule 60(b)(1) of the Federal Rules of Civil Procedure. This holding imputes a professional duty on lawyers who use the electronic filing system to check email and the status of their case, suggesting that breaching of such duty may constitute malpractice.
When Small Technology Is A Big Deal: Legal Issues Arising From Business Use Of Rfid, D. Zachary Hostetter
When Small Technology Is A Big Deal: Legal Issues Arising From Business Use Of Rfid, D. Zachary Hostetter
Washington Journal of Law, Technology & Arts
Radio Frequency Identification (“RFID”) is a wireless tracking technology. Goods fitted with radio tags can communicate with computers via radio waves, revolutionizing methods to locate and catalogue goods at every stage of the supply line. Current research predicts that 40% of all inventory intensive businesses will have such wireless tracking systems by the end of 2005. This article examines current legal trends that impact business use of RFID including contractual considerations to properly allocate risks attendant with implementation of RFID, FCC regulation of RFID, and consumer privacy concerns.
Brief For The United States In Opposition
Brief For The United States In Opposition
Lummi Nation v. Samish Indian Tribe, Docket No. 05-445 (546 U.S. 1090 (2006))
No abstract provided.
Brief In Opposition
Lummi Nation v. Samish Indian Tribe, Docket No. 05-445 (546 U.S. 1090 (2006))
No abstract provided.
Risky Business: Directors Making Business Judgments In Washington State, Adam J. Richins
Risky Business: Directors Making Business Judgments In Washington State, Adam J. Richins
Washington Law Review
Section 23B.08.300 of the Revised Code of Washington (RCW) defines the general standards of conduct for directors in discharging corporate duties. The Washington State Legislature developed these standards to govern the manner in which directors perform their duties, rather than to impose liability on directors for negligent business decisions under the business judgment rule. Indeed, the business judgment rule, as defined by leading corporate-law jurisdictions and the American Bar Association, generally protects directors from liability associated with negligent business decisions so long as the director makes decisions in good faith, on an informed basis, without self-interest, and in accordance with …
Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson
Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson
Washington Law Review
The Solomon Amendment denies federal funding to institutions of higher education that interfere with military recruiting on campus. In Forum for Academic & Institutional Rights v. Rumsfeld, the United States Court of Appeals for the Third Circuit examined the constitutionality of the Solomon Amendment using traditional First Amendment analysis. The court applied strict scrutiny and held that it was reasonably likely that the Solomon Amendment impermissibly infringed the First Amendment rights of an association of law schools and law faculty. This Note argues that the Solomon Amendment is a valid exercise of Congress's constitutionally-mandated duties to spend for the …
You Can't Take It With You: Constitutional Consequences Of Interstate Gender-Identity Rulings, Julie A. Greenberg, Marybeth Herald
You Can't Take It With You: Constitutional Consequences Of Interstate Gender-Identity Rulings, Julie A. Greenberg, Marybeth Herald
Washington Law Review
Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the procreative (a man must be able to fertilize ovum and beget offspring, while a woman must be able to produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other half. …
Policing The Border Between Trademarks And Free Speech: Protecting Unauthorized Trademark Use In Expressive Works, Pratheepan Gulasekaram
Policing The Border Between Trademarks And Free Speech: Protecting Unauthorized Trademark Use In Expressive Works, Pratheepan Gulasekaram
Washington Law Review
Artists and other creators of expressive works often include trademarks and trademarked products as part of their works. They do so for a number of reasons, including lighthearted humor, critical cultural commentary, parody, or even simply to shock. In instances where such use is both unauthorized by and perceived as disparaging to the mark owner or the trademarked product, owners have attempted to sue under trademark law to enjoin the expressive use. This Article argues that, under a proper analysis of trademark law, precedent, and the free expression ideal enshrined in the First Amendment, mark owners should rarely, if ever, …
Liability Under The Americans With Disabilities Act For Private Web Site Operators, Evgenia Fkiaras
Liability Under The Americans With Disabilities Act For Private Web Site Operators, Evgenia Fkiaras
Washington Journal of Law, Technology & Arts
The Americans with Disabilities Act of 1990 (“ADA”) is silent on the specific question of whether privately owned websites fall within its provisions. There is a circuit split on the issue, although the only case directly on point makes mandatory website compliance the exception rather than the rule. Nevertheless, given the direction that the law will probably head and the relative ease of making websites accessible to the group most in need—those who require the use of assistive technologies—it behooves businesses to construct or alter their websites to accommodate these individuals.
Proposed Federal Definition Of "Internet Job Applicant" Suggests Need For Revised Human Resource Policies, Carson Strege-Flora
Proposed Federal Definition Of "Internet Job Applicant" Suggests Need For Revised Human Resource Policies, Carson Strege-Flora
Washington Journal of Law, Technology & Arts
After several years of discussion, the Equal Employment Opportunity Commission, along with several other federal agencies, has proposed a new definition of “Internet job applicant” to help employers understand how to treat such applicants. The explosion over the past decade of Internet recruiting prompted the need for clarification of how employers must treat applicants for purposes of federal antidiscrimination law and recordkeeping requirements. The new guidelines suggest that employers engaged in Internet recruiting should review their hiring policies to ensure that their treatment of Internet job applicants complies with the proposed guidelines. This Article suggests that employers avoid violating federal …
The Fact Act Of 2003: Securing Personal Information In An Age Of Identity Theft, Terrance J. Keenan
The Fact Act Of 2003: Securing Personal Information In An Age Of Identity Theft, Terrance J. Keenan
Washington Journal of Law, Technology & Arts
The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) makes incremental progress toward its goal of improving the protection of consumers and businesses in an age of increasingly sophisticated scams and cons. Congress enacted the FACT Act in order to further address the problems of identity theft, improve resolution of disputes over consumer credit information, enhance accuracy of consumer credit records, further regulate use of credit information, and broaden consumer access to credit information. The FACT Act imposes new business practices on companies that handle personal consumer information by requiring them to share with consumers information about data …
Streamlined Sales And Use Tax Agreement: Is Your Business Ready For Compliance?, Anthony D. Milewski Jr.
Streamlined Sales And Use Tax Agreement: Is Your Business Ready For Compliance?, Anthony D. Milewski Jr.
Washington Journal of Law, Technology & Arts
As electronic commerce grows, states continue to lose tax revenue from vendors who fail to collect taxes on goods sold over the Internet. The problem has become so severe that 44 states and the District of Columbia are working on legislation, known as the Streamlined Sales and Use Tax Agreement, to simplify collection of taxes from Internet vendors. The Agreement simplifies rates and requires businesses to collect taxes when selling goods in remote locations. Businesses need to pay particular attention to this new Agreement for two reasons. First, it is likely to become law in nearly every state, and second, …
"I Didn't Know My Client Wasn't Complying!" The Heightened Obligation Lawyers Have To Ensure Clients Follow Court Orders In Litigation Matters, Mafé Rajul
Washington Journal of Law, Technology & Arts
Ensuring a client’s compliance with court orders and federal law is becoming a bigger responsibility for attorneys. This is because courts and Congress are starting to hold attorneys to higher standards with respect to their clients’ compliance with litigation duties and with federal law. This Article will address the duties Congress imposed on lawyers through the Sarbanes-Oxley Act with respect to up-the-ladder reporting and will parallel such standards with those set by the Southern District of New York court in Zubulake with respect to preserving electronic discovery in anticipation of litigation. Although the duties imposed by the Sarbanes-Oxley Act and …
Petition For Writ Of Certiorari
Petition For Writ Of Certiorari
Lummi Nation v. Samish Indian Tribe, Docket No. 05-445 (546 U.S. 1090 (2006))
No abstract provided.
Defining Spyware: Necessary Or Dangerous, Andrew T. Braff
Defining Spyware: Necessary Or Dangerous, Andrew T. Braff
Washington Journal of Law, Technology & Arts
State legislation attempting to define and proscribe spyware has been criticized for either being under-inclusive or over-inclusive. This article provides an overview of the technology that is commonly considered spyware and examines the potential effects of attempting to legislatively define and curtail spyware as a specific technology. It concludes that a more appropriate method to regulate spyware would focus on prohibiting conduct associated with placing monitoring software on a computer and enforcing existing law regarding such conduct.
Trademarkdilution.Com: Nissan Motor Co. V. Nissan Computer Corp., And The Evolving Law Of Trademark Dilution On The Internet, Lawrence F. Rosznyai
Trademarkdilution.Com: Nissan Motor Co. V. Nissan Computer Corp., And The Evolving Law Of Trademark Dilution On The Internet, Lawrence F. Rosznyai
Washington Journal of Law, Technology & Arts
The Ninth Circuit recently held that an individual, Mr. Uzi Nissan, infringed the trademark of Nissan Motors when he registered and posted commercial content on www.nissan.com. An injunction was granted, barring Mr. Uzi from using the site commercially. Although the trademark dilution claim was remanded, the Ninth Circuit’s opinion favors a finding of dilution on remand. Additional arguments involving the property-right-in-gross theory of dilution, reverse domain name hijacking, and actual consumer behavior on the Internet should be used by the parties to bolster their cases and encourage a decision from the district court that will advance trademark law on the …
E-Discovery—Can The Producing Party Expect Cost-Shifting?: The New Trend And What Can Be Done To Reduce Production Costs, Mafé Rajul
Washington Journal of Law, Technology & Arts
Now that computers and the Internet have radically changed the way businesses create and transmit information, questions about discovery rules in litigation continue to arise, such as which party should pay for producing electronic discovery. The courts are now considering cost shifting when the cost of production is unduly burdensome on the producing party by applying a seven-factor test. However, cost shifting is not always considered or granted, which is why it is important to have electronic documents relevant to anticipated litigation accessible in order to minimize the cost of producing electronic discovery. This Article will examine how courts are …
Bigger Fish, Deeper Pockets: Business Blogs, Defamation And The Communications Decency Act, Emma Scanlan
Bigger Fish, Deeper Pockets: Business Blogs, Defamation And The Communications Decency Act, Emma Scanlan
Washington Journal of Law, Technology & Arts
Blogging is a form of online communication that encourages instantaneous postings and viewer comments. More and more businesses are creating blogs to talk about and promote their products and services. This article will focus on a business’ potential exposure to defamation liability stemming from content posted on a company-sponsored blog. The history of the Communications Decency Act in the courts indicates that companies will likely be immune from liability for defamation when the suit treats the company blog as the publisher of third party defamatory content. However, businesses that host blogs should be aware that this immunity may not extend …
Will Wi-Fi Make Your Private Network Public? Wardriving, Criminal And Civil Liability, And The Security Risks Of Wireless Networks, Anita Ramasastry, Jane Winn
Will Wi-Fi Make Your Private Network Public? Wardriving, Criminal And Civil Liability, And The Security Risks Of Wireless Networks, Anita Ramasastry, Jane Winn
Washington Journal of Law, Technology & Arts
Wireless networking is growing in popularity because it is often cheaper and more convenient than other computer networking systems. Wireless networks, however, are also very hard to secure. Locating insecure wireless networks and advertising their locations is an activity known as “wardriving.” Exploiting the vulnerability of a wireless network to hack into the computer system or to monitor the wireless transmissions can give rise to liability under federal felony and misdemeanor statutes, as well as federal civil liability and liability under state law private causes of action. When introducing wireless networking into business information systems, system administrators should use all …
A Few Degrees Off The Mark: Miniature Missteps That Can Render The Safe Harbors Of The Dmca Inaccessible, Nicole J. Nyman
A Few Degrees Off The Mark: Miniature Missteps That Can Render The Safe Harbors Of The Dmca Inaccessible, Nicole J. Nyman
Washington Journal of Law, Technology & Arts
The term Internet Service Provider (“ISP”), as defined by the Digital Millennium Copyright Act (“DMCA”), includes virtually any online service. These services are eligible for safe harbor protections under the DMCA when they fulfill certain enumerated requirements. However, minor missteps can leave ISPs unprotected and exposed to liability for copyright infringement. This Article will discuss, through a survey of recent cases, several such mistakes made by ISPs and tips to avoid them.
Pop Goes The Trademark? Competitive Advertising On The Internet, Kendall Bodden
Pop Goes The Trademark? Competitive Advertising On The Internet, Kendall Bodden
Washington Journal of Law, Technology & Arts
The rights and obligations of online advertisers are uncertain in light of recent technological developments. There is not yet a consensus regarding the application of existing advertising law doctrines to the use of trademarks to trigger search result ads or “pop-up” ads on the Internet. However, the developing majority position will allow trademark-triggered ads that properly identify their source, and who’s content is not confusing to consumers. In addition, pending legislation may restrict or even outlaw adware.
Safe Harbor Agreement—Boon Or Bane?, Sylvia Mercado Kierkegaard
Safe Harbor Agreement—Boon Or Bane?, Sylvia Mercado Kierkegaard
Washington Journal of Law, Technology & Arts
U.S. businesses that handle personal information about individuals living in European Union countries should be aware that, as a general rule, it is unlawful for them to transfer that data out of the European Union to the United States. Exceptions to this general prohibition apply in specified circumstances, that is, where there is consent to the transfer or where there is some assurance that U.S. businesses will comply with the transfers requirements of EU privacy laws when handling that information. These restrictions apply to U.S. businesses that have employees or customers in EU countries, as well as U.S. businesses that …
Washington's Municipal Water Rights Bill Of 2003: Providing "Certainty And Flexibility" Or Violating The Separation Of Powers Doctrine?, Jason T. Morgan
Washington's Municipal Water Rights Bill Of 2003: Providing "Certainty And Flexibility" Or Violating The Separation Of Powers Doctrine?, Jason T. Morgan
Washington Law Review
The separation of powers doctrine limits the ability of the legislature to retroactively overrule judicial constructions of existing statutes. It is the province of the judiciary to interpret the law. Once a court interprets a statute, the legislature can only amend that statute prospectively. In the 1998 case of Theodoratus v. State Department of Ecology, the Supreme Court of Washington interpreted the Water Code to require that the proper measure of a water right is the amount of water actually beneficially used, and not the capacity of a water delivery system. In 2003, the Washington Legislature responded to the …
Handling The Failure Of A Government-Sponsored Enterprise, Richard Scott Carnell
Handling The Failure Of A Government-Sponsored Enterprise, Richard Scott Carnell
Washington Law Review
Fannie Mae and Freddie Mac are huge, fast-growing, highly leveraged, lightly regulated, and susceptible to failure. Prudence calls for having a legal mechanism adequate for handling their failure. Yet no adequate insolvency mechanism currently exists for them. Unlike ordinary business firms, these government-sponsored enterprises (GSEs) cannot liquidate or reorganize under the Bankruptcy Code. If Fannie Mae or Freddie Mac became sufficiently troubled, its regulator could appoint a conservator to take control of the firm and attempt to restore its financial health. But by then the firm's problems could well have become too severe for the conservator to resolve. The conservatorship …
Jurisdiction And Merits, Howard M. Wasserman
Jurisdiction And Merits, Howard M. Wasserman
Washington Law Review
Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and …
An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak
An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak
Washington Law Review
The Information Quality Act (IQA) directs the Office of Management and Budget (OMB) to issue guidelines to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by the agencies. The IQA directs agencies to develop administrative mechanisms whereby a person affected by agency-disseminated information may request correction of information that the person believes does not comply with the OMB's guidelines. The IQA is silent on whether judicial review is available to challenge an agency's decision to deny a "request for correction" (RFC). Regulated parties, legislators, scholars, and other groups have framed judicial review of …
Lingering Questions Regarding The Devise Of Black's Acre: How Many Witnesses Are Required To Prove The Execution Of A Lost Will?, Sarah Shirey
Washington Law Review
Prior to the 1994 revisions to Washington's lost will statute, courts required that execution of a lost will be proved by a preponderance of the evidence. In In re Estate of Black, the Washington State Supreme Court announced that under the revised lost will statute, execution of a lost will must be shown by clear, cogent, and convincing evidence. However, the Black court did not clearly define the quantum of proof necessary to meet this new burden. The dissent in Black read the majority opinion as creating a "two witness requirement," necessitating testimony from both attesting witnesses to meet …