Law Commons^™

The Two-Sided Speedy Trial Problem, Brooks Holland

Washington Law Review Online

This article is a response to Shon Hopwood, https://digitalcommons.law.uw.edu/wlr/vol89/iss3/3/">The Not So Speedy Trial Act, 89 Wash. L. Rev. 709 (2014).

The Anti-Clone Wars: Towards A Reinvigoration Of The Doctrine Of Patent Misuse And The Per Se Illegality Of Anti-Cloning Provisions, Patrick Holvey

Washington Journal of Law, Technology & Arts

Patent misuse, a once-valuable doctrine used to remove anticompetitive actions enabled by patent grants from the marketplace, has been relatively disfavored by the courts for some time. Recent licensing practices by certain major players within the high-technology marketplace, however, provide an excellent opportunity for the doctrine to be reinvigorated and applied. Apple, Inc., through its attempts to prevent competitors from “cloning” its products, has become an anticompetitive force that appears to have impermissibly leveraged its patent portfolio in order to extract contractual protections of non-patented subject matter through “anti-cloning” provisions, improperly broadening the scope of its patent grants. This Article …

The Struggle Over The Columbia River Gorge: Establishing And Governing The Country's Largest Scenic Area, Michael C. Blumm, Nathan J. Baker

Washington Journal of Environmental Law & Policy

This review first considers the historical conditions that coalesced in the late 1970s into the movement calling for federal protection of the Gorge. It then discusses the unlikely and convoluted scenario in which Congress passed and President Ronald Reagan signed into law the Columbia River Gorge National Scenic Area Act in 1986.14 The review then turns to the institutions responsible for implementing the statute: the bi-state Columbia River Gorge Commission; the U.S. Forest Service; six county governments; those agencies’ chief watchdog, the persistent and influential Friends of the Columbia Gorge; and the state legislatures, which control the Commission’s budgets. It …

Washington Environmental Law In Review, Robert Sykes

Washington Journal of Environmental Law & Policy

This annual publication from the Washington Journal of Environmental Law & Policy provides a summary of recent developments in Washington State environmental law. This Year in Review summarizes laws passed during the 2013-2014 legislative session and environmental case law decided the Washington State Supreme Court from late 2013 to late 2014. The court and legislature addressed several important environmental issues this year, including timber and water rights, renewable energy, air quality, and agency reporting requirements. The author reviewed these developments in Washington environmental law and summarized those determined to be most significant. All agencies referred to are Washington agencies. The …

Making 'Conservation' Work For The 21st Century: Enabling Resilient Place, Jerrold A. Long

Washington Journal of Environmental Law & Policy

During the New Deal, as part of a larger effort implementing Progressive-Era “conservation” regimes, the federal government authorized the structurally-invasive Flood Control Act of 1936. At the same time, the Standard State Soil Conservation Districts Law promoted the creation of local, place-based efforts to protect or restore locally-valued resources. “Conservation” thus came to signify both the invasive, structural, engineering approach of mid-20th Century flood control, and the local, more responsive and flexible nature of soil conservation districts. But our understandings of our place in the natural world have changed subtly but significantly over the past century. Any legitimate natural resource …

Wilderness: Good For Alaska. Legal And Economic Perspectives On Alaska's Wilderness, E. Barrett Ristroph, Anwar Hussain

Washington Journal of Environmental Law & Policy

This article addresses the legal framework for Wilderness in Alaska, which has more land within the National Wilderness Preservation System than any other state, as well as the economic impacts and valuation of wildlands. Wilderness management in Alaska is subject to the Alaska National Interest Lands Conservation Act, which aims to ensure that rural Alaskans can use wildlife resources to sustain customary and traditional ways of life. The values of Wilderness range from direct economic benefits and revenue generated from recreation to passive values that are measured by the public’s willingness to pay for preservation. While there are challenges to …

Zombie Subdivisions In The United States And Ghost Developments In Europe: Lessons For Local Governments, Jan G. Laitos, Rachel Martin

Washington Journal of Environmental Law & Policy

This article addresses the phenomenon of abandoned or failed commercial or residential developments, sometimes referred to as “zombie subdivisions” in America, and “ghost developments” in Europe. Both arose as a result of the real estate market disintegration after 2008. Around the world, but particularly in America and in certain European countries, developers ran out of funds and were unable to finish their projects, resulting in non-completed or largely vacant “zombie” or ghost properties. Such abandoned properties can be found throughout America and Europe, but they are more common in particular Intermountain states in the United States, and in Ireland, Spain …

The Failure Of Washington's Fish Consumption Rate: How It Affects Residents, The Economy, And The Environmental Protection Agency, Jenna Zwang

Washington Journal of Environmental Law & Policy

Washington’s fish consumption rate has remained unchanged since the 1980s, and now environmental groups are calling foul. While abiding by the State’s current rate, which is one of the lowest consumption rates in the nation, Washington industries are able to dump higher levels of carcinogenic materials into local waterways. However, the health risks that these toxic chemicals pose to Washington residents may pose liability issues for the state if the rate is not effectively changed. Washington has begun looking towards neighboring Oregon as a model for reframing the fish consumption rate discussion, but their proposal does not go far enough.

Revisiting Solving Jurisdiction's Social Cost: A Brief Rejoinder To Professor Klerman, Dustin E. Buehler

Washington Law Review Online

My recent article https://digitalcommons.law.uw.edu/wlr/vol89/iss3/2/">Solving Jurisdiction’s Social Cost examines issues implicated by nonwaivable federal court subject-matter jurisdiction. I argue that courts and commentators are prone to monistic theories of jurisdictional value, failing to consider the full range of interests implicated by jurisdictional rules. I then catalogue the various interests arising from jurisdictional rules. Lastly, I advance several solutions, including early jurisdictional certification orders, a cut-off point for jurisdictional challenges, interlocutory appeals of jurisdictional rulings, and sanctions to deter private-party abuse. Daniel Klerman’s response to my article is articulate, well-reasoned, and persuasive. Among other contentions, he suggests that mandatory jurisdictional …

Supreme People's Court Annual Report On Intellectual Property Cases (2013) (China), Tong Li, Xiaohan Lou, Zhenan Wang, Qiuwen Xu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April of each year, summarize and review new intellectual property cases. This translation includes all 30 cases and 39 legal issues of the 2013 Annual Report. It addresses patent law, trademark law, copyright law, unfair competition, contractual intellectual property rights, liability of intellectual property infringement, and intellectual property litigation procedure and evidence. While China is not a common law country, these cases and guidelines provide lower courts with meaningful insight and direction.

New Formalities For Casual Labor: Addressing Unintended Consequences Of China's Labor Contract Law, Daniel S.S. Cairns

Washington International Law Journal

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by …

Changing The Rules Of The (International) Game: How International Law Is Turning National Courts Into International Political Actors, Osnat Grady Schwartz

Washington International Law Journal

Courts are known to be political actors. National courts play the political game in the national domain. International courts play it in the international sphere. This article studies the transformation of national courts into international political actors (IPAs), and the part international law plays in so making them. The article identifies, categorizes, and demonstrates the influence of national courts and judges on international relations (IR), separating the influence into two main categories: direct and indirect. Direct influence, is the effect of a national court taking a position on international issues in concrete situations with immediate IR implications. Indirect influence is …

Arbitrage For Property Rights: How Foreign Investors Create Substitutes For Property Institutions In China, Weitseng Chen

Washington International Law Journal

This article revisits the prevailing wisdom regarding property rights based on empirical research on the behavior of foreign investors in China. The Property Law did not exist in China until 2007—four years after China replaced the United States as the most popular foreign direct investment destination worldwide. This seems to contradict the conventional wisdom about the indispensable role of property rights in economic growth. This article argues that China’s experiences in fact do not overrule the orthodox view, but rather shed light on the evolution of the regulatory property regime. Property rights still matter in China, but the structure of …

Supreme People's Court Annual Report On Intellectual Property Cases (2013) (China), Tong Li, Xiaohan Lou, Zhenan Wang, Qiuwen Xu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April of each year, summarize and review new intellectual property cases. This translation includes all 30 cases and 39 legal issues of the 2013 Annual Report. It addresses patent law, trademark law, copyright law, unfair competition, contractual intellectual property rights, liability of intellectual property infringement, and intellectual property litigation procedure and evidence. While China is not a common law country, these cases and guidelines provide lower courts with meaningful insight and direction.

Book Review, Mario L. Barnes

Articles

Reviewing Pulled Over: How Police Stops Define Race and Citizenship by Charles Epp, Steven Maynard-Moody, and Donald Haider (2014).

Institutionalizing The Uspto Law School Clinic Certification Program For Transactional Law Clinics, Jennifer S. Fan

Articles

With 188 transactional law clinics nationwide and the United States Patent and Trademark Office (“USPTO”) Law School Clinic Certification Program (“Program”) recently established as a statutory program of the USPTO, this Article argues that every transactional clinic that works on trademark and patent applications should apply to become part of the Program. In satisfying the participation requirements of the Program, transactional law clinics will usher in a new, uniform way to educate aspiring intellectual property attorneys. As a result, the law students will not only be “practice ready,” but also more effective attorneys once they are in practice. Participating in …

Coming Of Age: Innovation Districts And The Role Of Law Schools, Jennifer S. Fan

Articles

New urban models, dubbed “innovation districts” are gaining traction in entrepreneurial-focused areas across the United States. This article begins by defining what innovation districts are. It then examines the potential role that law schools, together with technology transfer offices, can play as innovation cultivators within such districts. Specifically, it looks at three potential models that law schools can consider when contemplating a relationship with the technology transfer office within a university. Integrating a clinic and technology transfer office within an innovation district does not come without its challenges, however. Accordingly, this article will suggest ways for transactional law clinics to …

"Driving While Black" Redux: Illuminating New And Myriad Aspects Of Auto(Matic) Inequality, Mario Barnes

Articles

Reviewing Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (2014).

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry

Articles

This article explores the evolution of business and human rights (BHR) from a lawyer’s perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes …

White Paper: Options For A Treaty On Business And Human Rights, Anita Ramasastry, Douglass Cassell

Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group took take place in Geneva in July 2015. The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales asked the present authors to prepare a “White Paper” on possible options for a treaty …

Revisiting The Client Conundrum: Whom Does Lawyer For A Government Represent, And Who Gives Direction To That Governmental Lawyer?, Hugh D. Spitzer

Articles

The issue of identifying a government attorney’s client is age-old, and Washington’s Rules of Professional Conduct provide somewhat different answers for lawyers who are government employees and for those who are with private firms. The matter becomes even more interesting when a government entity’s attorney is a publicly-elected legal official: an attorney general, prosecuting attorney, or city attorney in the case of Seattle and a number of other cities around the country. Others have written thoughtful pieces on the topic from a national perspective, and there is at least one excellent but slightly outdated piece by District of Columbia municipal …

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh D. Spitzer

Articles

This Article focuses on the tension between the late-nineteenth-century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” doctrine …

The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford [email protected]

Articles

As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …

‘Truth And Reconciliation’: A Critical Step Toward Eliminating Race And Gender Violations In Tenure Wars, Tamara F. Lawson, Angela Mae Kupenda

Articles

“All is fair in love and war,” and . . . tenure battles? However, even in war there are rules of engagement. In “tenure wars” rules apply too. The American Bar Association requires law schools to employ clear rules of engagement in “tenure wars,” akin to how the United Nations collectively proscribes rules of war between nation states as well as punishes violations committed on the battlefield. When innocent nations are attacked by illegal acts of aggression, a coalition of the willing allies within the United Nations defends against the aggression.

Even if all is fair in love, war, and …

Overtaxing The Working Family: Uncle Sam And The Childcare Squeeze, Shannon Weeks Mccormack

Articles

Today, many working parents are caught in a “childcare squeeze”: While they require two incomes just to make ends meet, they end up spending a strikingly large percentage of their income on childcare so that they can work away from the home. Worse still, some parents find themselves “squeezed out” of the market entirely, unable to earn the additional income their family requires because they cannot find jobs that pay enough to offset soaring childcare expenses. This Article argues that the tax laws have played an important role in aggravating these hardships. Currently, the Internal Revenue Code treats the childcare …

Financing Innovation: Legal Development Of Intellectual Property As Security In Financing, 1845–2014, Xuan-Thao Nguyen

Articles

There is a need for both traditional and online lenders to appreciate the intellectual property assets held by small businesses. The intellectual property assets should be included in the analytics in assessing the overall health of a business seeking a loan or a line of credit for its new innovative product, idea, or vision. The Article ends with a brief conclusion that in order to maintain the United States’ innovative edge, attention to the access to financing by small businesses must be at the center of the discussion, and intellectual property must be recognized as part of that center.

Saving An Old Friend From Extinction: A Proposal To Amend Rather Than To Abrogate The Ancient Documents Hearsay Exception, Peter Nicolas

Articles

This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are approaching the threshold age for being deemed "ancient" and could thus be swept into evidence via the exception.

In Part I of this Essay, I provide an overview of the proposed amendment. In Part II, I contend that although the proposal is a well-intentioned effort to …

Taxation And Surveillance: An Agenda, Michael Hatfield

Articles

Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration …

Water Rights, Water Quality, And Regulatory Jurisdiction In Indian Country, Robert T. Anderson

Articles

In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: "The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization. Did they give up all this?" The Court's answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to …