Law Commons^™

A New Generation Of Class Action Cy Pres Remedies: Lessons From Washington State, Cecily C. Shiel

Washington Law Review

The use of cy pres as a mechanism to distribute residual funds in class actions has become increasingly common and the subject of much controversy. In the class action context, cy pres is an equitable remedy used by courts to appropriate class action settlement funds remaining after all identified class parties have been compensated to the funds’ “next best use,” usually to a charity. The controversy has stemmed primarily from a lack of clear judicially enforced standards on how and when to use cy pres. In light of recent controversy, both the Federal Rules Committee, and potentially the Supreme Court, …

Washington's Reproductive Privacy Act: An Interpretation And Constitutional Analysis, Ross Tanaka

Washington Law Review

In Roe v. Wade, the Supreme Court declared that the “zone of privacy” inherent in the liberty component of the Due Process Clauses protected a woman’s right to choose when to terminate her pregnancy. Nevertheless, in the years following Roe, the Court held that the right of choice did not include a right to state assistance in obtaining an abortion. After decisions such as Webster v. Reproductive Services and Maher v. Roe, the state may express its preference for childbirth by denying the use of its funds, facilities, and personnel for abortion. Although a majority of the …

The Sustaintable Development Goals (Sdgs) As Drafted: Nice Idea, Poor Execution, Thomas Pogge, Mitu Sengupta

Washington International Law Journal

The United Nations General Assembly (UNGA) is scheduled to adopt its 2015-2030 development agenda in September 2015: the Sustainable Development Goals. The United Nations Open Working Group (OWG) on the SDGs set a draft of this agenda before the UNGA in September 2014. Despite clear positives, this draft fails to take advantage of the SDGs’ non-binding and aspirational nature to encourage global leaders to set aside short-term gain in order to invest in a sustainable future. Specifically, the draft ought to identify actors responsible for specific achievements, to envision structural reforms in the global institutional order, to provide for objective …

Take Me To Your Liter: Politics, Power, And Public-Private Partnerships With The Sugar-Sweetened Beverage Industry In The Post-2015 Development Agenda, Craig W. Moscetti, Allyn L. Taylor

Washington International Law Journal

Today, non-communicable diseases (“NCDs”) are widely recognized as a global public health crisis and a foreign policy priority. The international community was slow to identify and respond to the crisis of NCDs in the later part of the twentieth century. However, in 2011 the United Nations High Level Meeting on NCDs recognized NCDs as one of the greatest threats to health and development in the twenty-first century, and a major topic for the post-2015 development agenda. Notably, many experts, national governments, and global leaders have rallied for an inclusive, “whole-of-government” and “whole-of-society” approach, situating public-private partnerships (“PPPs”) with some of …

The New Black On The Development Catwalk: Incorporating Rule Of Law Into The Sustainable Development Goals, Per Bergling, Sophie Jin

Washington International Law Journal

As the post-2015 Development Agenda is set to replace the Millennium Development Goals (“MDGs”), one of the most controversial new elements of the new agenda is the rule of law. While all of the official fora for discussing and producing recommendations have concluded that the rule of law (or some variation) should be included, there are still significant challenges to its incorporation in the final Sustainable Development Goals (“SDGs”). The interrelated points of contention have included whether rule of law applies at the national government level, whether it encompasses domestic governance, and how the concept should be defined and measured. …

Markman Twenty Years Later: Twenty Years Of Unintended Consequences, Jerry A. Riedinger

Washington Journal of Law, Technology & Arts

The Federal Circuit’s Markman decision removed juries from the claim interpretation process, thereby revolutionizing patent law. Designed to provide greater certainty and predictability, Markman nevertheless produced unintended consequences, increasing ambiguity and complexity. By declaring claim interpretation an entirely legal issue, the Federal Circuit imposed intricate and even contradictory rules, many resulting from the Federal Circuit’s long insistence that no issues of fact existed, so that claim construction was entirely subject to de novo review. The uncertainty was compounded by rules focused on semantic quibbles unrelated to what was invented. Increased burdens and continuing uncertainty followed.

Substance Overload: A Comparative Examination Of Japanese Corporate Governance Law Through The Lens Of The Daiwa Bank Case, A. Reid Monroe-Sheridan

Washington International Law Journal

Japanese corporate governance law is facing a period of remarkable change. In light of Prime Minister Shinzo Abe’s push for corporate governance reforms and the explosive news of Olympus Corporation’s $1.7 billion accounting scandal in 2011, academics and practitioners alike are devoting renewed attention to the rules that govern Japan’s boardrooms. This increased focus brings to the fore two key questions about Japan’s modern corporate governance principles: how have they evolved and how are they applied in practice? To answer these questions, this article revisits the Daiwa Bank case, one of Japan’s most stunning business scandals. This international criminal conspiracy …

The Criminalization Of Revenge Porn In Japan, Shigenori Matsui

Washington International Law Journal

Revenge porn is the practice of posting and distributing sexually explicit images of an ex-partner on the Internet to seek revenge after a breakup. Because it brings serious damages to the victims, it has become a significant social issue in Japan, the United States, and around the world. An increasing number of U.S. states and other countries are now enacting statutes criminalizing revenge porn. Recently, Japan joined these jurisdictions in criminalizing revenge porn when the Diet, the Japanese national legislature, passed the Revenge Porn Victimization Prevention Act. This article compares the Act with legislation in the United States and critically …

Patching Old Wineskins: Heightened Deference Towards Saiban-In Findings Of Fact On Koso Appeals Is Not Enough, Caleb Jon F. Vandenbos

Washington International Law Journal

The successful introduction of the saiban-in seido—the Japanese lay assessor system—was a tremendous step towards creating meaningful exchange between the public and the judiciary and democratizing the criminal justice system in Japan. To preserve the quality of this exchange, judges must conscientiously solicit and respect lay assessor input during deliberations, and saiban-in decisions must retain their force on appeal. Under current appellate procedure, however, saiban-in findings of fact may be replaced on koso appeal. Koso appeals threaten to eviscerate lay participants’ contributions in the individual case being reviewed and, in the long term, will discourage judges from taking lay …

The U.K. Supreme Court At War, Po Jen Yap

Washington International Law Journal

This article contends that the underlying normative assumptions of civil libertarians and national security “executive unilateralists” are premised on a variant of the “nirvana fallacy.” In other words, civil libertarians generate a best-case scenario for rigorous judicial oversight over executive action during emergencies and compare it to the worst-case scenario for executive action; the reverse holds true for executive unilateralists. In practice, the Supreme Court of the United Kingdom has been cognizant of the institutional advantages and limitations of its office when it adjudicates national security disputes, and has not succumbed to the criticisms of scholars in either camp. Instead, …

Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963-2013, Jack Tsen-Ta Lee

Washington International Law Journal

This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over half of a century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases …

The Other Side Of The Coin: The Fec's Move To Approve Crytocurrency's Use And Deny Its Viability, Juliya Ziskina

Washington Journal of Law, Technology & Arts

This Article examines the implications of the Federal Election Committee’s May 2014 advisory opinion on cryptocurrency’s viability within campaign finance regulation, and U.S. financial regulation more generally. Although the Commissioners sharply disagreed on whether Bitcoin is a cash or in-kind contribution, they voted unanimously to allow political committees to accept Bitcoin donations. Moreover, all the Commissioners agreed that Bitcoin donors must disclose their names, addresses, and occupations. While many view this decision as pushing Bitcoin and cryptocurrency further toward legitimacy, in actuality it undermines one of cryptocurrency’s distinct functionalities: pseudonymity. Paradoxically, while it approves the use of Bitcoin in campaign …

Travelers Beware: Tort Liability In The Sharing Economy, Talia G. Loucks

Washington Journal of Law, Technology & Arts

Participation in the sharing economy makes consumers’ lives easier. From the rental of a house or room via room share sites like Airbnb to getting a ride around the city using rideshare apps such as Uber and Lyft, travelers have found less traditional and more affordable ways to explore. With these innovations, however, come risks for users. For example, Airbnb hosts do not owe guests the same duties as a hotel operator. Additionally, drivers’ insurance policies may not apply when operating for profit through a rideshare program. This Article examines the current liability issues that arise in the sharing economy. …

Drone Drain: How The Faa Can Avoid Draining (And Instead Spur) The American Drone Industry By Adding Nuance To Its Draft Small Uas Rules, Brooks Lindsay

Washington Journal of Law, Technology & Arts

The Federal Aviation Administration has done much right in the past few months with its draft small UAS rules, but should add nuance to the draft to avoid draining America’s nascent drone industry. This Article, which was submitted as an official comment to the FAA by the University of Washington’s world-renowned College of Engineering, recommends five essential modifications to enable American competitiveness in this field. First, the FAA should maintain the line-of-sight requirement as a baseline, but allow uses beyond line-of-sight for pilots and aircraft certified to fly with First-Person View or autonomous technology. Second, the FAA should create exceptions …

Expansion Of The Profit-Split Method: The Wave Of The Future, Jeffrey M. Kadet

Articles

Recognizing the reality that multinational corporations are centrally managed and not groups of entities that operate independently of one another, the OECD base erosion and profit-shifting project is considering expanded use of the profit-split method. This article provides background on why expanded use of the profit-split method is sorely needed. In particular, resource-constrained tax authorities in many countries are unable to administer or intelligently analyze and contest transfer pricing results presented by multinational groups. Most importantly, this article suggests a simplified profit-split approach using set concrete and objective allocation keys for commonly used business models that should be welcomed by …

Will Bringing Sales Onshore In The U.K. Lead To Higher Taxes?, Tommaso Faccio, Jeffrey M. Kadet

Articles

The authors discuss changes to the scope of the U.K. royalty withholding tax announced in the 2016 U.K. budget, which, along with the new diverted profits tax, could cause significant increases in U.K. tax paid by multinationals. As will be seen from the example set out in the article, the U.K. royalty withholding tax announced in the 2016 U.K. budget is a major portion of this increase. This will have a major impact on the economics of profit-shifting structures involving revenues that require on-the-ground sales, marketing, and other support activities in the U.K. The U.K.’s actions should be closely examined …

Fair Approaches For Taxing Previously Untaxed Foreign Income, Jeffrey M. Kadet

Articles

In connection with any transition to a new international tax system, we need an approach that effectively deals with the trillions of dollars of previously untaxed foreign income held by CFCs. There is logic and fairness in applying a rate on those earnings that is less than the 35 percent home country rate because the rules of the game are being changed significantly.

Many U.S. multinationals have had legitimate commercial reasons for retaining their earnings overseas. For these, I can happily accept whatever rate Congress chooses, whether it is at the lower 3.5 percent level of TRA 2014, the 14 …

Rethinking Virtual Currency Regulation In The Bitcoin Age, Kevin V. Tu, Michael W. Meredith

Washington Law Review

This Article investigates an increasingly important yet under-developed body of law: regulation of virtual currency. At its peak in March of 2014, the daily volume of Bitcoin transactions in United States dollars exceeded $575,000,000. The growing mainstream acceptance of Bitcoin, however, is best illustrated by the growing number of leading merchants that have decided to accept Bitcoin payments. While Bitcoin’s rise as an alternative payment method is well-chronicled, Bitcoin’s impact extends further due to its use as an investment vehicle and its ability to spur the growth of an industry of Bitcoin-based businesses. Despite increasingly widespread use, Bitcoin (and other …

Forever Evergreen: Amending The Washington State Constitution For A Healthy Environment, Devra R. Cohen

Washington Law Review

Pollution poses an ongoing threat to the health and welfare of the citizens of Washington State. Air pollution costs Washington approximately $190 million per year, ocean acidification is contributing to oyster die-offs, and approximately 677,000 acres of land are affected by area-wide soil contamination. Although Washington has aspirational environmental legislation and a narrowly defined duty under article XVII of the Washington State Constitution to protect navigable waters, their shores and tidelands, the State needs to do more if its citizens—present and future—are going to enjoy a healthy environment. Amending the Washington State Constitution to include an extended public trust doctrine …

A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis

Washington Law Review

Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same …

A Shifting Landscape For Shifting Fees: Attorney-Fee Awards In Patent Suits After Octane And Highmark, Darin Jones

Washington Law Review

Section 285 of the Patent Act authorizes courts to award attorney fees to the prevailing party in patent litigation in “exceptional cases.” Until recently, interpretation of § 285 had been governed by a highly restrictive formulation set forth by the United States Court of Appeals for the Federal Circuit. In April 2014, the United States Supreme Court released a pair of decisions—Octane Fitness v. ICON Health & Fitness, and Highmark Inc. v. Allcare Health Management System, Inc.—that rejected the Federal Circuit’s interpretation of § 285 and reinvigorated the potential for fee shifting in patent suits. This Note …

Revisiting Claim And Issue Preclusion In Washington, Kathleen M. Mcginnis

Washington Law Review

When it comes to the law of claim and issue preclusion, Washington courts and practitioners encounter rules and precedent that tend to be unnecessarily complicated, overly broad, and even—in some instances—simply wrong. Three decades ago, Professor Philip Trautman urged Washington courts to clarify and modernize the doctrine. A fresh look at the topic suggests that while courts have been receptive to the professor’s advice, the goal of a clear and usable body of preclusion law will require more work. Specifically, Washington courts should address three problems. First, they should simplify the test for claim preclusion, eliminating redundant and confusing elements …

Public Records In Private Devices: How Public Employees' Article I, Section 7 Privacy Rights Create A Dilemma For State And Local Government, Philip Paine

Washington Law Review

The Washington Public Records Act (PRA or “the Act”) is a wide-ranging law that heavily weighs in favor of public disclosure of government processes. Initially enacted as a citizen initiative in 1972, the Act has many beneficial uses. For example, it provides insight into a local government’s decision-making process and ensures that citizens have access to their own government. However, the PRA’s potential to be used to invade personal privacy raises significant constitutional concerns. When an employee in possession of a public record invokes the protection of article I, section 7 of the Washington State Constitution, which protects an individual’s …

Removal Jurisdiction Over Mass Actions, Mallory A. Gitt

Washington Law Review

The mass action provision in the Class Action Fairness Act of 2005 provides a federal forum for certain state court litigation that resembles class actions but otherwise could not be removed. The provision is triggered when state court plaintiffs propose a joint trial of common legal or factual issues. But defining what constitutes that triggering event has proved difficult for federal courts. They have not used a uniform framework to determine when they have subject matter jurisdiction over the purported mass action, and have lacked a common interpretation of the statutory language to begin the inquiry. That lack of coherence …

Home-Country Effects Of Corporate Inversions, Omri Marian

Washington Law Review

This Article develops a framework for the study of the unique effects of corporate inversions (meaning, a change in corporate residence for tax purposes) in the jurisdictions from which corporations invert (“home jurisdictions”). Currently, empirical literature on corporate inversions overstates its policy implications. It is frequently argued that in response to an uncompetitive tax environment, corporations may relocate their headquarters for tax purposes, which, in turn, may result in the loss of positive economic attributes in the home jurisdiction (such as capital expenditures, research and development activity, and high-quality jobs). The association of tax-residence relocation with the dislocation of meaningful …

Administrating Patent Litigation, Jacob S. Sherkow

Washington Law Review

Recent patent litigation reform efforts have focused on every branch of government—Congress, the President, and the federal courts—save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as “gatekeepers” to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation. Understanding administrative agencies’ functions in managing or directing, i.e., “administrating,” patent litigation sheds both descriptive and normative insight on several aspects of patent reform. These include several problems …

Experimental Execution, Seema K. Shah

Washington Law Review

On July 23, 2014, an execution in Arizona lasted nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution. This was the third example of a botched execution in seven months. The Supreme Court last evaluated the constitutionality of execution by lethal injection in 2008, but did not provide a clear standard for evaluating risks. Since that time, the lethal injection landscape has transformed. States are using entirely new drugs and drug combinations, and sometimes obtain these drugs from questionable sources, making it hard to predict what will …

Reply Brief. Hildebrand V. Allegheny County (No. 14-363), 2014 U.S. S. Ct. Briefs Lexis 3445, Eric Schnapper, Marjorie E. Crist

Court Briefs

No abstract provided.

Surrogacy And Windsor'S Penumbras, Susan Frelich Appleton

Washington Law Review Online

This article is a contribution to the Compensated Surrogacy in the Age of Windsor symposium.

The Case For Revisiting Contingent Liabilities Under Article Viii, Joshua Hansen-King

Washington Law Review Online

Prior to 2012, Washington municipalities frequently relied on contingentliability agreements (“CLA” or “CLAs”) to reduce borrowing costs because such liabilities did not constitute debt under article VIII of the Washington State Constitution. But the viability of CLAs was called into question by the Washington State Supreme Court’s 2012 plurality decision in In re Bond Issuance of Greater Wenatchee Regional Events Center Public Facilities District (“Wenatchee Events Center”), which applied a new method for determining what constitutes debt—the risk-of-loss principle—to conclude that the entire value of a CLA constitutes debt. This Essay urges the Court to revisit the opinion because the …