Law Commons^™

The Claim-Centered Approach To Arising-Under Jurisdiction: A Brief Rejoinder To Professor Mulligan, Simona Grossi

Washington Law Review

My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies. My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does …

Gully And The Failure To Stake A 28 U.S.C. § 1331 "Claim", Lumen N. Mulligan

Washington Law Review

In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view—read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in chief, for …

Arriving At Clearly Established: The Taser Problem And Reforming Qualified Immunity Analysis In The Ninth Circuit, Kate Seabright

Washington Law Review

Federal law allows private citizens to bring civil suits against government officials who violate their constitutional rights while acting under the color of state law. The doctrine of qualified immunity shields officials from liability when their conduct does not violate clearly established constitutional rights. When determining whether a right was clearly established at the time of a particular injury, the Ninth Circuit purportedly looks to whatever decisional law is available to inform its analysis. This Comment examines recent Taser-related cases to show that, in practice, courts in the Ninth Circuit actually take two divergent approaches. Some look only to binding, …

Killing A Chicken To Scare The Monkey: The Unequal Administration Of Death In China, Jessica J. Shen

Washington International Law Journal

China’s frequent usage of the death penalty in order to achieve deterrence of crime is well known to the international community; however, China also has a strong tradition of legal mercy stemming from imperial rule. In turn, imperial legal mercy originated from Confucian values of benevolence and humaneness. Although modern China emerged as a rejection of Imperial China’s Confucian hierarchal social structures, these cultural traditions have endured. For example, Confucianism’s humane influence can be seen in statutory and procedural mechanisms demonstrating benevolence towards criminals. However, only applying this benevolence to a select group of people betrays modern China’s statutory and …

Enlightened Regulatory Capture, David Thaw

Washington Law Review

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest: (1) legislatively mandated adoption of recommendations by an advisory committee …

"Without Good Cause": The Case For A Standard-Based Approach To Determining Worker Qualification For Unemployment Benefits, Emily Toler

Washington Law Review

Under Washington’s Employment Security Act, workers who voluntarily quit their jobs are qualified to receive unemployment benefits only if they establish “good cause” for leaving work. For forty years, the agency that administers the statute and the courts had substantial discretion to find good cause under the statute’s flexible, standard-based approach. However, beginning in 1977, the legislature began to restrict the scope of that discretion by moving toward a rule-based approach. This trend reached its apex in 2009, when the legislature stripped the agency and the courts of all discretion and limited good cause to eleven reasons enumerated in the …

Enlightened Regulatory Capture, David Thaw

Washington Law Review

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest: (1) legislatively mandated adoption of recommendations by an advisory committee …

Loss-Of-Chance Doctrine In Washington: From Herskovits To Mohr And The Need For Clarification, Matthew Wurdeman

Washington Law Review

Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification—definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term “loss of chance” as if it …

Foreigners In Burma: A Framework For Responsible Investment, Rachel E. Ryon

Washington International Law Journal

Burma is hailed as a great democratic success story: a once-rogue nation holding elections, releasing political prisoners, and promising human rights reforms. The people elected to Parliament Aung San Suu Kyi, the leader of the democratic movement who was under house arrest for more than twenty years. The world responded with applause and open pocketbooks. In April of 2012, Ban Ki-moon, Secretary General of the United Nations, asked members to lift their sanctions on the formerly “rogue” nation and begin investing. But for a resource-rich country with a long track record of corruption, this flood of foreign investment will likely …

Global Analytical Lessons For Evaluating A Myanmar Sovereign Wealth Fund, Oliver T. Gilbert

Washington International Law Journal

After decades of international condemnation, Myanmar, also known as Burma, has initiated rapid political, economic, and legal reforms. In recognition of these reforms, Western governments have broadly curtailed longstanding sanctions against investing in Myanmar. This sudden opportunity for foreign companies to extract Myanmar’s plentiful petroleum resources has increased the need for Myanmar to implement resource revenue management strategies to guard against adverse consequences of the resource curse. Among these strategies is a call by respected global commentators to create a Myanmar sovereign wealth fund (“SWF”). This article describes each of the main effects generally associated with the resource curse and …

"All His Sexless Patients": Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison J. Lynch

Washington Law Review

In this Article, we consider these attitudes while seeking to answer the following questions: • In this area of law and policy, is there any unitary definition of competence? • Are there certain factors that must be considered in determining “sexual competence”? • How does domestic law and policy relate to issues of sexual competence, and does it impact how we should approach these issues? • What are the international human rights law and therapeutic jurisprudence implications of the answers to these questions? In Part I, we will discuss competence to engage in sexual activity in matters involving persons with …

Arriving At Clearly Established: The Taser Problem And Reforming Qualified Immunity Analysis In The Ninth Circuit, Kate Seabright

Washington Law Review

Federal law allows private citizens to bring civil suits against government officials who violate their constitutional rights while acting under the color of state law. The doctrine of qualified immunity shields officials from liability when their conduct does not violate clearly established constitutional rights. When determining whether a right was clearly established at the time of a particular injury, the Ninth Circuit purportedly looks to whatever decisional law is available to inform its analysis. This Comment examines recent Taser-related cases to show that, in practice, courts in the Ninth Circuit actually take two divergent approaches. Some look only to binding, …

Loss-Of-Chance Doctrine In Washington: From Herskovits To Mohr And The Need For Clarification, Matthew Wurdeman

Washington Law Review

Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification—definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term “loss of chance” as if it …

The Slow-Burning Genocide Of Myanmar's Rohingya, Maung Zarni, Alice Cowley

Washington International Law Journal

Since 1978, the Rohingya, a Muslim minority of Western Burma, have been subject to a state-sponsored process of destruction. The Rohingya have deep historical roots in the borderlands of Rakhine State, Myanmar, and were recognized officially both as citizens and as an ethnic group by three successive governments of post-independence Burma. In 1978, General Ne Win’s socialist military dictatorship launched the first large-scale campaign against the Rohingya in Rakhine State with the intent first of expelling them en masse from Western Burma and subsequently legalizing the systematic erasure of Rohingya group identity and legitimizing their physical destruction. This on-going process …

3d Printers, James Barker, Nicholas Pleasants, Peter Montine, Shudan Zhu

Technology Law and Public Policy Clinic

A preliminary report, addressing potential market disruption, the state of the law, and recommendations on future legislative action regarding consumer-grade 3D printing.

Automated Vehicles, James Barker, Nicholas Pleasants, Shudan Zhu, Peter Montine, Rachel Wilka

Technology Law and Public Policy Clinic

No abstract provided.

Uwlaw, Spring 2014, Vol. 67

Alumni Magazines

No abstract provided.

Petition For A Writ Of Certiorari, Volume 1 Of 2 (Petition With Appendix Pages 1a-563a). Lynch V. Alabama, 135 S. Ct. 53 (2014) (No. 13-1232), 2014 U.S. Lexis 5672, Larry T. Menefee, Edward Still, Eric Schnapper, James U. Blacksher

Court Briefs

QUESTIONS PRESENTED

(1) The district court found that several provisions of the Alabama Constitution of 1901 were adopted for the purpose of limiting the imposition on whites of property taxes that would pay for the education of black public school students. The first question presented is: Do black public school children and their parents have standing to challenge the validity under the Equal Protection Clause of state constitutional provisions adopted for the purpose of limiting the imposition on whites of property taxes that would be used to educate black public school students?

(2) In 2004 the District Judge in Knight …

Beyond The Fakultas'S Four Walls: Linking Education, Practice, And The Legal Profession, Stephen A. Rosenbaum

Washington International Law Journal

More than fifty years after the first post-colonial Southeast Asian regional conference on legal education, commentators and educators do not necessarily agree on the appropriate curricular balance between theory, doctrine, and practice, or what role the government should play in directing the orientation of legal studies and careers in Indonesia’s law schools. The author argues in favor of legal education that is rich in experiential learning and integrates the involvement of practitioners and doctrinal faculty. This objective may be a relatively new reality in Indonesia, but also one that needs revitalization in other Southeast Asian nations and beyond. This article …

Who Knew? Refining The "Knowability" Standard For The Future Of Potentially Hazardous Technologies, Scott P. Kennedy

Washington Journal of Law, Technology & Arts

As consumer technology becomes increasingly complex, so too does the manufacturer’s task in assessing the scope of its duty to warn of potential dangers. A recent decision by the United States Court of Appeals for the Ninth Circuit, Rosa v. Taser International, Inc., offers a prime illustration of this challenge through its analysis of a hazard posed by Taser weaponry. The Rosa court highlights a point of uncertainty in this area of law: courts typically determine which hazards were knowable at the time of manufacture as a matter of law, but they sometimes do so in the absence of …

Are Courts Phoning It In? Resolving Problematic Reasoning In The Debate Over Warrantless Searches Of Cell Phones Incident To Arrest, Derek A. Scheurer

Washington Journal of Law, Technology & Arts

In 1973, the United States Supreme Court in United States v. Robinson granted police broad authority to search arrestees’ personal property. Robinson’s broad rule has not been significantly limited and appears increasingly anachronistic in an age of rapidly advancing mobile technologies. Whether upholding or invalidating such searches, courts have relied on reasoning that ignores or conflicts with Robinson. This Article illustrates four problematic contrivances used by state and federal courts: (1) the comparison of mobile devices to “containers; (2) the misinterpretation of United States v. Chadwick’s concept of “property not immediately associated with the person;” (3) the …

Forced Turnovers: Using Eminent Domain To Build Professional Sports Venues, Peter Montine

Washington Journal of Law, Technology & Arts

If a city wants to keep a professional sports team within its borders, can that city use the power of eminent domain to do so? Although cities have not been able to successfully condemn the actual sports franchises within their respective cities, they have been successful in condemning land for the development of new sports venues intended to entice their teams to stay. In 2005, the City of Arlington, Texas invoked the power of eminent domain to condemn and destroy houses to make room for the Dallas Cowboys’ new stadium. In 2006, New York City used eminent domain on land …

Sentencing Court Discretion And The Confused Ban On Internet Bans, Matthew Fredrickson

Washington Journal of Law, Technology & Arts

In United States v. Wright, issued June 2013, the Sixth Circuit cited a supposed consensus among circuit courts that Internet bans are per se unreasonably broad sentences in electronic child pornography possession and distribution cases. This Article demonstrates that the Sixth Circuit’s claim of a consensus is mistaken. While some circuit courts of appeal have limited judicial sentencing discretion when it comes to imposing Internet bans, many more have not imposed this limit. Despite this lack of consensus, in cases where such bans are challenged, most courts make their decisions partly based on either the Internet’s pervasive importance in …

Fishers Of Men: The Neglected Effects Of Environmental Depletion On Labor Trafficking In The Thai Fishing Industry, Joanna G. Sylwester

Washington International Law Journal

Migrant fishermen are left out. Both Thailand’s labor trafficking laws and anti-trafficking measures espoused by international bodies fail to effectively protect men coerced into working in Thailand’s fishing industry. Thailand is a prominent destination for human trafficking victims because of the country’s economic, social, and political conditions. The majority of trafficking victims identified within Thailand are migrants from Thailand’s neighbors—predominantly Myanmar (Burma)—who often escape from conditions of poverty or political persecution. Because of a high demand for Thai fish products and labor shortages in the fishing industry, the commercial fishing industry is a hotbed for labor trafficking. The Government of …

Why Japan Should Legalize Surrogacy, Trisha A. Wolf

Washington International Law Journal

Beyond a recommendation from the Japanese Society of Obstetrics and Gynecology to not work with patients who want to engage in surrogacy contracts, no legal framework exists for regulating surrogacy in Japan. Because of this recommendation, as of December 2013, only one doctor in the entire country will work with families using surrogates. Therefore, Japanese families often travel abroad to use surrogates, generally to the United States, India, or Thailand. Surrogacy tourism creates a number of problems. Babies born to surrogates have been considered stateless because neither the surrogate’s country nor Japan recognizes them as citizens. Furthermore, Japan’s complex family …

Criminal Liability Of Arbitrators In China: Analysis And Proposals For Reform, Duan Xiaosong

Washington International Law Journal

This article is prompted by a Chinese criminal provision governing the impartiality of arbitration. The goals of the article are to critically examine the criminal statute created by the provision and to put forward some proposals for reform, which can be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the provision appears to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding United States provision as well as an analysis of some cultural and traditional …

The Emerging Structures Of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention And The Chinese Constitutional Order, Larry Catá Backer, Keren Wang

Washington International Law Journal

China is developing its own distinctive path towards socialist constitutionalism and rule of law, one that reflects China's history and its unique circumstances but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the Chinese Communist Party (“CCP”). This constitutional order is reflected in two related but distinct legal contexts—laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-CCP discipline of its cadres, …

Copyright And 3d Printing, James Barker

Technology Law and Public Policy Clinic

The implications of 3D printing are manifold, with some commentators anticipating permanent market disruption in the massive (and ill-defined) field of small physical things. I begin this paper by asserting that the opportunities afforded by 3D printing are so attractive that it is a mere matter of time before an explosion of use; but that the diffusion of manufacturing to the consumer level is poised to put individual end-users in uncomfortably close contact with intellectual property law.

By analogy to the physical CD-distribution model, and the ways in which it broke down in the Napster era, (and with sensitivity to …

Petition For A Writ Of Certiorari. Debord V. Mercy Health System Of Kansas, Inc., 134 S. Ct. 2664 (2014) (No. 13-1118), 2014 U.S. S. Ct. Briefs Lexis 1120, Eric Schnapper, Mark A. Buchanan

Court Briefs

QUESTION PRESENTED

Section 704(a) of Title VII of the Civil Rights Act of 1964 forbids an employer to retaliate against any employee because that worker "opposed" unlawful discrimination.

The question presented is:

Does section 704(a) prohibit retaliation against a worker because of the worker's statements:

(1) only when the statements are made to the worker's own employer or to federal or state anti-discrimination agencies (the rule in the Tenth and Fourth Circuits), or (2) also when the worker's statements are made to any other person (the rule in the First, Second, Third, Fifth, Sixth and Ninth Circuits)?

The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank Pasquale

Washington Law Review

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …