Law Commons^™

Incorporating Community-Based Observing Networks And Systems: Enhancing Community Preparedness And Response To Arctic Critical Events, Lilian Alessa, Paula Williams, Andrew Kliskey, Grace Beaujean

Washington Journal of Environmental Law & Policy

No abstract provided.

Incorporating Community-Based Observing Networks And Systems: Enhancing Community Preparedness And Response To Arctic Critical Events, Lilian Alessa, Paula Williams, Andrew Kliskey, Grace Beaujean

Washington Journal of Environmental Law & Policy

No abstract provided.

Arctic Law & Policy Year In Review: 2015, Arctice Law & Policy Institute, University Of Washington

Washington Journal of Environmental Law & Policy

No abstract provided.

Arctic Law & Policy Year In Review: 2015, Arctice Law & Policy Institute, University Of Washington

Washington Journal of Environmental Law & Policy

No abstract provided.

Globalization, Rights, And Judicial Review In The Supreme Court Of India, Manoj Mate

Washington International Law Journal

This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decisionmaking in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the …

The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema

Washington International Law Journal

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005–2013). This era in Pakistan’s judicial history was also marked by great controversy as the court faced charges that it had engaged in “judicial activism,” acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion …

Judicial Lobbying, J. Jonas Anderson

Washington Law Review

Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done—not to mention little that could be done—to restrict judges from lobbying. Judicial lobbying occurs, in large part, when Congress …

Lawyers For Legal Ghosts: The Legality And Ethics Of Representing Persons Subject To Guardianship, Nina A. Kohn, Catheryn Koss

Washington Law Review

A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed—as research suggests is not infrequently the case—the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but …

State Standing To Challenge Federal Authority In The Modern Administrative State, Shannon M. Roesler

Washington Law Review

The modern administrative state relies on a model of shared governance. Federal regulatory regimes addressing a range of economic and social issues depend on the participation of state governments for their implementation. Although these state-federal partnerships are often cooperative, conflicts over the allocation of regulatory authority and administrative policy are inevitable. In recent years, states have sought to resolve some of these conflicts in the federal courts. Well-known state challenges to federal authority include challenges to environmental rules, health insurance legislation, and immigration policies. In these cases, courts have struggled to decide whether states have constitutional standing to bring suit …

Filling Holes In The Air: Why The Ninth Circuit In Pakootas V. Teck Cominco Should Decline To Open Up A New Hole In Coverage That Would Circumvent Cerla Arranger Liability For Sites Contaminated By Aerial Emissions, Frank Cioffi

Washington Journal of Environmental Law & Policy

In order to frame the legal controversy, Part II of this comment provides background information on the relevant provisions of CERCLA, RCRA, and the Clean Air Act, and presents a brief summary of the physical and legal history of the Teck Cominco smelter and the Upper Columbia River site. Part III of this comment analyzes the controversy by examining the statutes themselves, as well as recent developments in the case law regarding arranger liability. While the statutes and the case law establish liability on their own, Part III also looks to the legislative history and finds confirmation that Congress intended …

The Right To Be Virtually Clothed, Peter W. Cooper

Washington Law Review

Nonconsensual pornography, also known as, “revenge pornography” or “cyber exploitation,” is the publication of a person’s nude image or video online by a third party. It is a privacy violation that can ruin a person’s social and professional life. Although advocates and lawmakers have done substantial work addressing this problem, current legal remedies fall short. This Comment argues that two privacy protections developed abroad, the “right to be forgotten” and the “right to delete,” should be applied domestically to nonconsensual pornography. One aspect of the “right to be forgotten,” i.e., the ability to remove nonconsensually posted images from search engine …

Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt

Washington Law Review

Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come …

Anonymization And Risk, Ira S. Rubinstein, Woodrow Hartzog

Washington Law Review

Perfect anonymization of data sets that contain personal information has failed. But the process of protecting data subjects in shared information remains integral to privacy practice and policy. While the deidentification debate has been vigorous and productive, there is no clear direction for policy. As a result, the law has been slow to adapt a holistic approach to protecting data subjects when data sets are released to others. Currently, the law is focused on whether an individual can be identified within a given set. We argue that the best way to move data release policy past the alleged failures of …

Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt

Washington Law Review

Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come …

Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein

Washington Law Review

The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as …

The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip

Washington International Law Journal

This article studies how the Hong Kong Court of Final Appeal has come to develop a sophisticated judicial gloss on the provisions of the Basic Law, Hong Kong’s constitutional document, in ways unforeseen by the Chinese National People’s Congress that enacted it. The ascendancy of constitutional common law in Hong Kong after the end of British rule is remarkable when considered in light of the continuing denial of democratic self-rule by China’s authoritarian Party-state. This article argues that the profusion of political transaction costs due to the fragmentation of the ruling elite and state-society discord consequent to the resumption of …

The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto

Washington International Law Journal

In the decade following its inception, the Indonesian Constitutional Court has marked a new chapter in Indonesian legal history, one in which a judicial institution can challenge the executive and legislative branches. This article argues that judicial leadership is the main contributing factor explaining the emergence of judicial power in Indonesia. This article posits that the newly established Indonesian Constitutional Court needed a strong and skilled Chief Justice to build the institution because it had insufficient support from political actors. As the Court lacked a well-established tradition of judicial review, it needed a visionary leader who could maximize the structural …

On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew

Washington International Law Journal

This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s movement toward a more rights-oriented approach followed by its more recent retreat, which has been marked by strict formalism and insularity in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must be willing to uphold its constitutional duty to assert its …

Legislating Agency Use Of Unmanned Aerial Vehicles In Washington State, Ashleigh B. Rhodes

Washington Law Review

After years of hearing about “drone strikes” in the Middle East meant to kill terrorists that also kill and maim innocent civilians, Americans have legitimate concerns about the government’s use of unmanned aerial vehicles (UAVs) domestically. The public’s anxiety over law enforcement agency use of domestic UAVs stems from worries that UAVs will significantly invade citizens’ privacy. In an effort to allay these privacy concerns, state legislators, including those in Washington State, have introduced statutes aimed at curbing law enforcement agency use of UAVs. However, state legislators should carefully draft legislation to ensure that agencies not acting in a law …

Uwlaw, Fall 2016, Vol. 70

Alumni Magazines

No abstract provided.

Constitutional Fig Leaves In Asia, Po Jen Yap

Washington International Law Journal

Constitutional landscapes in Asia are littered with fig leaves. These proverbial fig leaves are legal principles, doctrines, and theories of interpretation that judges appeal to when resolving constitutional disputes. This article uncovers and examines three constitutional fig leaves that are prevalent and flourishing in Asia: 1) formalism and its conceptual variants; 2) the exercise of judicial review that is merely symbolic; and 3) the invocation of vacuous constitutional doctrines. This article further argues that judicial recourse to fig leaves is not intended to deceive anyone about what courts are doing; the fig leaves are on public display merely to demonstrate …

Moving Towards A Nominal Constitutional Court? Critical Reflections On The Shift From Judicial Activism To Constitutional Irrelevance In Taiwan's Constitutional Politics, Ming-Sung Kuo

Washington International Law Journal

The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first …

Profit-Shifting Structures And Unexpected Partnership Status, Jeffrey M. Kadet, David Koontz

Articles

Many U.S.- and foreign-based MNCs that have implemented carefully researched tax strategies to reduce their income taxes are coming under increased scrutiny. Most MNC tax strategies involve businesses they conduct worldwide, but which are managed from the U.S. These strategies have several factors in common:

(i) Companies established in tax havens or otherwise structured to attract little if any tax;

(ii) Intercompany agreements placing commercial risk and intangibles in such companies, thereby shifting profits to such companies;

(iii) Conduct of centralized activities and functions in the U.S. (in addition to group senior management), which are integral to and which critically …

Reply Brief Of Petitioners. Knight V. Thompson, 136 S.Ct. 2534 (2016) (No. 15-999), 2016 U.S. S. Ct. Briefs Lexis 1645, 2016 Wl 1555013+A12, Eric Schnapper, Mark Sabel, Peter Fruin, Randall C. Marshall, Roy S. Haber

Court Briefs

QUESTION PRESENTED Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") prohibits state and local governments from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person": (1) "is in furtherance of a compelling governmental interest," and (2) "is the least restrictive means of furthering that compelling governmental interest."42 U.S.C. § 2000cc-l(a). The Question Presented is: Whether RLUIPA requires that prison officials actually consider and demonstrate a sufficient basis for rejecting widely …

Brief In Opposition. City Of Houston V. Zamora, 136 S.Ct. 2009 (2016) (No. 15-868), 2016 U.S. S. Ct. Briefs Lexis 1615, 2016 Wl 1445907, Eric Schnapper, Kim Ogg, Scott Poerschke, Randall L. Kallinen, Robert Mcknight, Jr.

Court Briefs

QUESTIONS PRESENTED (1) Does the liability standard in Staub v. Proctor Hospital, 562 U.S. 411 (2011), apply to retaliation claims under Title VII? (2) Under Staub, where a supervisor for an unlawful purpose has engaged in conduct that was intended to and did in fact cause an adverse employment action, the existence of an independent investigation by other officials does not limit liability unless that investigation reveals a new basis for that adverse action that is “unrelated” to the conduct of the supervisor. The second question presented is: Should the Court overturn the decision in Staub, and hold that an …

A Comparative Study Of Non-Compete Agreements For Trade Secret Protection In The United States And China, Hui Shangguan

Washington Journal of Law, Technology & Arts

Non-compete agreements are commonly used in both the United States and China, and are regarded as an important means for employers to prevent employees or rival companies from using valuable trade secrets for competitive purposes. Despite their popularity, however, the enforceability of non-competes in both countries can be difficult to determine. In the U.S., the level to which non-competes are fully enforced varies by jurisdiction. While some state courts apply a “rule of reason,” others, such as California, prohibit non-competes altogether. In contrast, Chinese courts tend to support non-competes. This Article provides a comparative perspective of non-competes in the U.S. …

"Uniting For Peace" And Humanitarian Intervention: The Authorising Function Of The U.N. General Assembly, Michael Ramsden

Washington International Law Journal

Although the end of the Cold War has seen the functional expansion of the United Nations Security Council, concerns still remain over its legitimacy, driven in part by its failure to address serious and persistent human rights abuses. While this has resurrected arguments in favour of the doctrine of humanitarian intervention outside the U.N. Charter framework, little attention has been paid to how the U.N. General Assembly may authorise such enforcement action under a U.N. mandate through the invocation of the Uniting for Peace mechanism. Some dismiss Uniting for Peace as little more than a relic of the Cold War, …

Translation, Codification, And Transplantation Of Foreign Laws In Taiwan, Tay-Sheng Wang

Washington International Law Journal

Taiwan is an excellent example for rethinking the significance of translation and codification of law in the process of transplantation of modern law in East Asian countries. Regardless of its strangeness to the general public, the translation of Western laws was always codified in Meiji Japan for the purpose of “receiving” modern law. Those Westernized Japanese legal codes also took effect in Taiwan during the later period of Japanese colonial rule, although Japanese colonialists initially applied Taiwanese customary law, created by Western legal terminology, to the Taiwanese to decrease their resistance to the new regime. Using foreign Japanese language to …

Don't Count Your Nest Eggs Before They Vest: A Lack Of Reform Could Leave A Generation Of Retiring Israelis Without A Future, Tomer Vandsburger

Washington International Law Journal

Israel’s pension system has changed drastically since the mid-1990s, when it faced an underfunding crisis. The transition to defined contribution plans permitted a wider range of investments and shifted the burden of income-replacement from the government to the individual pension plan participant. This shift required increased protections for pension plans, which led to the creation of the Capital Market Insurance and Savings Division (CMISD) to oversee and regulate pension management entities. In comparison to post-Soviet nations that experienced similar transitions from socialist to market economies, Israel’s pension system is significantly healthier and more regulated. However, the CMISD must enact measures …

Identity Laws And Privacy Protection In A Modern State: The Legal History Concerning Personal Information In Taiwan (1895-2015), Yung-Hua Kuo, Po-Liang Chen

Washington International Law Journal

This article investigates the continuity and transformation of the personal identity and identification legal systems in Taiwan. From 1895 to 2015, Japan and subsequently the Republic of China (ROC) ruled Taiwan and transplanted different legal systems of personal information to Taiwan. This article analyzes how these systems were applied to and impacted Taiwanese society in three periods: the Japanese rule period (1895–1945), the period of strict control by the ROC government (1945–1992), and the rise and evolution of the privacy period (1993–2015). When Taiwan was ruled by the Qing Empire (1683–1895), there was no precise personal information database in Taiwan. …