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Articles 1 - 30 of 126
Full-Text Articles in Law
Reversing The Reliance Revolution In Contract, Eric Alden
Reversing The Reliance Revolution In Contract, Eric Alden
Washington Law Review
During the past century, leading American academics have attempted to rewrite in radically altered form the theoretical foundation of liability in contract. In derogation of the historical bases for contractual liability in Anglo-American law, namely voluntary mutual exchange and “formal” contract, these intellectual revolutionaries desire to impose strict liability in contract on the basis of unilateral, unbargained-for reliance. The centerpiece of this revisionist effort has been the novel and artificial doctrine of “promissory estoppel,” first advanced by Williston and Corbin in the Restatement of the Law of Contracts published in 1932. The invention of this doctrine has been accompanied by …
Stop And Frisk In A Concealed Carry World, Shawn E. Fields
Stop And Frisk In A Concealed Carry World, Shawn E. Fields
Washington Law Review
This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts …
To Withdraw Or Not To Withdraw: Reviewability Of An Agency's Withdrawn Proposed Rule, Jane E. Carmody
To Withdraw Or Not To Withdraw: Reviewability Of An Agency's Withdrawn Proposed Rule, Jane E. Carmody
Washington Law Review
Federal agencies propose thousands of regulations in any given year. The Administrative Procedure Act requires such agencies to follow certain procedures when enacting rules and regulations. However, when an agency proposes a new rule that is purely discretionary—not mandated by Congress—it may withdraw the proposed rule at any point before the rule is finalized. In October 2017, the Centers of Medicare and Medicaid (CMS) withdrew a proposed rule that, if enacted, would have required long-term care facilities to recognize out of state same-sex marriages as a condition of Medicare and Medicaid participation. In its formal withdrawal published in the Federal …
Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze
Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze
Washington Law Review
A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes …
Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon
Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon
Washington Law Review
Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the …
Danger Ahead: Risk Assessment And The Future Of Bail Reform, John Logan Koepke, David G. Robinson
Danger Ahead: Risk Assessment And The Future Of Bail Reform, John Logan Koepke, David G. Robinson
Washington Law Review
In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people—particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests. …
Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann
Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann
Washington Law Review
The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …
The Multiple Justifications Of Occupational Licensing, Nick Robinson
The Multiple Justifications Of Occupational Licensing, Nick Robinson
Washington Law Review
Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational …
Privacy Localism, Ira S. Rubinstein
Privacy Localism, Ira S. Rubinstein
Washington Law Review
Privacy law scholarship often focuses on domain-specific federal privacy laws and state efforts to broaden them. This Article provides the first comprehensive analysis of privacy regulation at the local level (which it dubs “privacy localism”), using recently enacted privacy laws in Seattle and New York City as principal examples. Further, this Article attributes the rise of privacy localism to a combination of federal and state legislative failures and three emerging urban trends: the role of local police in federal counterterrorism efforts; smart city and open data initiatives; and demands for local police reform in the wake of widely reported abusive …
Privacy's Double Standards, Scott Skinner-Thompson
Privacy's Double Standards, Scott Skinner-Thompson
Washington Law Review
Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. This Article unearths disparate outcomes in public disclosure tort …
Unrealistic Expectations: The Federal Government's Unachievable Mandate For State Cannabis Regulation, Rebecca Sweeney
Unrealistic Expectations: The Federal Government's Unachievable Mandate For State Cannabis Regulation, Rebecca Sweeney
Washington Law Review
The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act’s classification of …
Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver
Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver
Washington Law Review
The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or entity avoids activities that …
The Legal Monopoly, Renee Newman Knake
The Legal Monopoly, Renee Newman Knake
Washington Law Review
Lawyers enjoy an exclusive monopoly over their craft, one unlike any other profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed. Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition …
Does Small Group Health Insurance Deliver Group Benefits? An Argument In Favor Of Allowing The Small Group Market To Die, John Aloysius Cogan Jr.
Does Small Group Health Insurance Deliver Group Benefits? An Argument In Favor Of Allowing The Small Group Market To Die, John Aloysius Cogan Jr.
Washington Law Review
The small group health insurance market is failing. Today, fewer than one-third of small firms now offer health insurance and the number of people covered by small group insurance continues to drop. These problems invite the obvious question: What should be done about the small group market? Past scholarship on the small group market has largely focused on documenting the market’s problems, evaluating the effectiveness of prior reform efforts, and proposing regulatory changes to stabilize the market. This Article takes a different approach to the small group problem by asking a previously unasked question: Does the small group market deliver …
Threading The First Amendment Needle: Anonymous Speech, Online Harassment, And Washington's Cyberstalking Statute, Sarah E. Smith
Threading The First Amendment Needle: Anonymous Speech, Online Harassment, And Washington's Cyberstalking Statute, Sarah E. Smith
Washington Law Review
This Comment examines the constitutionality of Washington’s cyberstalking statute, RCW 9.61.260, and its treatment of anonymous online speech. While the statute was drafted to ensure that women are free from domestic and gender-based violence, the statute as currently written and enforced infringes on the constitutionally protected right to free speech. There has only been one action, Moriwaki v. Rynearson, enforcing the provision of the statute related to anonymous speech. The court ultimately overturned the stalking protection order, which the plaintiff brought to halt political speech, on First Amendment grounds. While the Moriwaki court concluded that the stalking protection order …
Emojis And The Law, Eric Goldman
Emojis And The Law, Eric Goldman
Washington Law Review
Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail. Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them. One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized …
Blame It On The Machine: A Socio-Legal Analysis Of Liability In An Ai World, Michael Callier, Harly Callier
Blame It On The Machine: A Socio-Legal Analysis Of Liability In An Ai World, Michael Callier, Harly Callier
Washington Journal of Law, Technology & Arts
As technology continues to evolve, interactions between humans and artificial intelligence (“AI”) will skyrocket. It is important to understand the impact AI can have on society, as well as the potential harm and subsequent liability that could result, and to develop best practices designed to address them. The U.S. needs a comprehensive framework to govern the design, creation, use and risks associated with AI. At the time of this writing, no such framework has been implemented. This article takes a socio-legal, interdisciplinary approach to explore ideas on socio-ethical concerns and theories of liability related to AI, and applies a sociological …
Remarks On The Problem Of Scope In Ip, Mark P. Mckenna
Remarks On The Problem Of Scope In Ip, Mark P. Mckenna
Washington Journal of Law, Technology & Arts
As I contemplated the focus of this conference, issues about the nature of the rights that are the subject of a deal stood out to me. A good deal of my recent work has focused on challenges in determining the scope of IP rights. And since those rights are the inputs to various kinds of transactions—or, perhaps even more importantly, ability to assess the scope of a right affects whether a transaction is needed—I’m going to focus here on the relationship between the scope of IP rights and potential IP transactions. [These remarks were given as the keynote talk at …
Everyone Wants To See The Entire History Of You, Caesar Kalinowski Iv
Everyone Wants To See The Entire History Of You, Caesar Kalinowski Iv
Washington Journal of Law, Technology & Arts
Starting with heavy, immobile cameras and progressing to immediately shareable, discreet cellphone videos, the last century has expanded our ability to record ourselves and others—whenever and wherever—to formerly unfathomable heights. Black Mirror, a technology-based, sci-fi miniseries now produced by digital entertainment giant, Netflix, tracks this trajectory to its logical end in “The Entire History of You.” In this not-so-distant, sci-fi future where Google Glass is replaced by an “Augmented Reality Contact Lens and Grain,” everything we see and hear is immediately recorded and uploaded. Effectively, we no longer need memories to recall the past. But as with all new technologies, …
Are Beach Bondaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle
Are Beach Bondaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle
Washington Law Review
Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would have a significant impact on public access. This Article explores the possibility that courts and the public can put an end to the beach privatization movement simply by pointing to the common law of waterfront …
Contesting Police Credibility, Rachel Moran
Contesting Police Credibility, Rachel Moran
Washington Law Review
Criminal cases often amount to credibility contests between two actors: the complainant, testifying for the government, and the defendant. In theory, the defendant’s opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant has a constitutional right to a fair trial. But when the government’s witnesses are police officers, the converse occurs. Although the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining …
The Arbiters Of Decency: A Study Of Legislators' Eighth Amendment Role, David Niven, Aliza Plener Cover
The Arbiters Of Decency: A Study Of Legislators' Eighth Amendment Role, David Niven, Aliza Plener Cover
Washington Law Review
Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The United States Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role. We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position …
Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey
Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey
Washington Law Review
In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving …
Flight And Federalism: Federal Preemption Of State And Local Drone Laws, Nicholas Cody
Flight And Federalism: Federal Preemption Of State And Local Drone Laws, Nicholas Cody
Washington Law Review
Small, unmanned aircraft referred to as “drones” are becoming increasingly common in the skies above the United States. Their increasing ubiquity has been driven by the wide variety of industries and tasks to which they can be applied, but it has also drawn the attention of government. Where Amazon.com sees the potential for packages delivered in thirty minutes or less, governments see crowded skies and clumsy pilots, to name only two potential risks associated with the widespread integration of drones into the national airspace. To that end, just as Amazon.com has ambitiously made use of the technology, state and local …
A Stute Observation: Re-Examining Washington's Enforcement Of Workplace Safety Regulations, Ben Moore
A Stute Observation: Re-Examining Washington's Enforcement Of Workplace Safety Regulations, Ben Moore
Washington Law Review
In 1973, the Washington State Legislature enacted the Washington Industrial Safety and Health Act. The stated purpose of the Act was to ensure safe working conditions for the working men and women of Washington. Seventeen years later, the Washington State Supreme Court held that general contractors are per se liable for the WISHA violations of their subcontractors. However, the Washington Department of Labor and Industries has adopted a policy of citing general contractors for subcontractor violations only in limited circumstances. This Comment first outlines the development of worker safety laws in Washington, then examines the effects of the Department’s policy …
Annual Report, 2018, University Of Washington School Of Law
Annual Report, 2018, University Of Washington School Of Law
Tech Policy Lab
The Tech Policy Lab at the University of Washington has become an indispensable source for tech policy research, education, and local, national, and international thought leadership. The Lab has worked directly with policymakers, published research and guides on emerging technologies, and provided opportunities for the public to learn from experts.
Environmental Justice In The United States: The Human Right To Water, Tamar Meshel
Environmental Justice In The United States: The Human Right To Water, Tamar Meshel
Washington Journal of Environmental Law & Policy
Many low-income communities, communities of color, and indigenous communities in the United States are suffering from unequal access to safe and affordable water. This is partially the result of an ineffective and fragmented legal framework governing water issues in the country. In addition, the notion of a human right to water and sanitation, accepted internationally to reinforce and protect human needs related to water, has yet to be meaningfully recognized in the United States. This article sets out, first, to examine the legal framework governing access to freshwater in the United States and the concerns underlying the reluctance of the …
Through The Looking Glass: How Review Of Natural Gas Exports Hides Environmental Effects In Plain Sight, Julia Michel
Through The Looking Glass: How Review Of Natural Gas Exports Hides Environmental Effects In Plain Sight, Julia Michel
Washington Journal of Environmental Law & Policy
Often called the “Magna Carta” of environmental laws, the National Environmental Policy Act (NEPA) has made informed decision-making about the environment a pre-requisite for every major federal permit approval. By requiring federal agencies to systematically consider and disclose the environmental and health consequences of a course of action, NEPA also made federal decision-making public—”we know best” no longer suffices to allow agencies to make a decision without considering its environmental consequences. Yet NEPA’s mandate has been thwarted when it comes to natural gas exports. Without meaningful review of the consequences, federal agencies have already approved proposals to export an amount …
Trapped In The Goddess's Mousetrap: Equitable Solutions For Poverty Poaching Of Venus Flytraps, Katrina Outland
Trapped In The Goddess's Mousetrap: Equitable Solutions For Poverty Poaching Of Venus Flytraps, Katrina Outland
Washington Journal of Environmental Law & Policy
Most discussions of poaching—the intentional, unlawful taking or killing of a living organism—focus on animals. However, poaching is also the primary threat for many prized collectible plants. The bizarre Venus flytrap has particularly drawn media attention as North Carolina struggles to save its endemic State Carnivorous Plant from extinction. Existing federal plant protection laws are sparse and either ineffective (in the case of the Endangered Species Act) or underutilized (in the case of the Lacey Act). Traditional poaching enforcement methods, which target individual poachers with small fines, are designed for animal poaching, and fail to adequately protect plants. Not only …
Intergenerational Justice, Environmental Law, And Restorative Justice, Chaitanya Motupalli
Intergenerational Justice, Environmental Law, And Restorative Justice, Chaitanya Motupalli
Washington Journal of Environmental Law & Policy
Global climate change is well underway and its impacts are reaching far into the future. As these impacts progress, they present core questions of intergenerational justice. What does justice require of the current generation in tackling climate change to safeguard the wellbeing of future generations? How is the current generation to achieve a just relationship with those to come in light of the atrocious violations represented by global climate change? Taking the Juliana v. United States lawsuit as an example, I argue that we are not equipped to address the current climate crisis using existing environmental law, and therefore our …