Law Commons^™

The Parcel As A Whole: Defining The Relevant Parcel In Temporary Regulatory Takings Cases, Laura J. Powell

Washington Law Review

In regulatory takings cases, courts must look at the “parcel as a whole” rather than individual property interests to determine whether a taking has occurred. The Supreme Court, however, has not clarified how exactly the relevant parcel should be defined. The Federal Circuit’s recent decision in CCA Associates v. United States highlights the confusion surrounding the parcel as a whole. It also highlights the continuing need to clarify how the relevant parcel should be defined in temporary regulatory takings cases. This Comment analyzes the parcel as a whole in temporary regulatory takings cases, specifically those involving lost income. It argues …

The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads For Washington Defenders And Clients, Andrea Woods

Washington Law Review

The Standards governing Washington’s public defenders represent a significant reform aimed at protecting an important constitutional right for our state’s vulnerable citizens. This Comment provides the necessary introduction to the Standards and addresses skepticism on the part of current practitioners and elected officials. Cooperation among defense attorneys, local governments, and the courts could ensure the Standards’ success and—in turn—a better system of public defense for attorneys and defendants alike. Part I of this Comment introduces the reader to the new Standards. Part II offers an overview of common critiques of the Washington State Supreme Court Standards that were voiced by …

Policing By Numbers: Big Data And The Fourth Amendment, Elizabeth E. Joh

Washington Law Review

This article identifies three uses of big data that hint at the future of policing and the questions these tools raise about conventional Fourth Amendment analysis. Two of these examples, predictive policing and mass surveillance systems, have already been adopted by a small number of police departments around the country. A third example—the potential use of DNA databank samples—presents an untapped source of big data analysis. Whether any of these three examples of big data policing attract more widespread adoption by the police is yet unknown, but it likely that the prospect of being able to analyze large amounts of …

Machine Learning And Law, Harry Surden

Washington Law Review

Part I of this Article explains the basic concepts underlying machine learning. Part II will convey a more general principle: non-intelligent computer algorithms can sometimes produce intelligent results in complex tasks through the use of suitable proxies detected in data. Part III will explore how certain legal tasks might be amenable to partial automation under this principle by employing machine learning techniques. This Part will also emphasize the significant limitations of these automated methods as compared to the capabilities of similarly situated attorneys.

Machines Without Principals: Liability Rules And Artificial Intelligence, David C. Vladeck

Washington Law Review

No abstract provided.

Reexamining Crawford: Poll Worker Error As A Burden On Voters, Lauren Watts

Washington Law Review

American elections are administered by poll workers—individuals who are recruited and trained by states and localities for the particular task of helping people vote on Election Day. Several layers of law govern poll workers, including federal constitutional law, federal statutory law, state constitutional law, state statutory law, and local law. Among these laws are voter photo identification laws, or voter ID laws. Nineteen states have passed voter ID laws in the last ten years. With some variation, these laws require a person to present photo identification before he or she is allowed to vote. In 2008, the United States Supreme …

Artificial Meaning, Lawrence B. Solum

Washington Law Review

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry in the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

Street Diversion And Decarceration, Mary Fan

Articles

States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. [para] The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion—the power to sort who gets treatment rather …

Amicus Curiae Brief Of The National Association Of Criminal Defense Lawyers Supporting Respondent. Plumhoff V. Rickard, 134 S.Ct. 2012 (2014) (No. 12-1117), 2014 Wl 507161, Eric Schnapper, David M. Porter

Court Briefs

No abstract provided.

The Internet And The Constitution: A Selective Retrospective, M. Margaret Mckeown

Washington Journal of Law, Technology & Arts

Over the last two decades, the Internet and its associated innovations have rapidly altered the way people around the world communicate, distribute and access information, and live their daily lives. Courts have grappled with the legal implications of these changes, often struggling with the contours and characterization of the technology as well as the application of constitutional provisions and principles. Judge M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit has had a close-up view of many of these Internet-era innovations and the ways the courts have addressed them. In this Article, adapted from her …

Cause Lawyering In Japan: Reflections On The Case Studies And Justice Reform, Daniel H. Foote

Chapters in Books

Each of the case studies presented in this volume is an important and fascinating story in its own right. Taken together, the case studies enrich our understanding of cause lawyering and the relationship between law and social change in Japan. Despite their rather disparate subjects, the studies dovetail exceptionally well. They show numerous commonalities in the use of law to further social causes, as well as some important differences. They reveal a truly impressive level of creativity in the use of law, and they disclose several common barriers to successful litigation to promote social causes in Japan. As discussed below, …

Augmented Reality: Hard Problems Of Law And Policy, Franziska Roesner, Tamara Denning, Bryce Clayton Newell, Tadayoshi Kohno, Ryan Calo

Tech Policy Lab

Augmented reality (AR) technologies are poised to enter the commercial mainstream. Using an interdisciplinary research team, we describe our vision of AR and explore the unique and difficult problems AR presents for law and policy—including around privacy, free speech, discrimination, and safety.

Supreme People's Court Annual Report On Intellectual Property Cases (2012) (China), Shudan Zhu

Washington International Law Journal

Beginning in 2008, the Supreme People’s Court of China started publishing the Annual Report on Intellectual Property Cases each April. By summarizing and reviewing intellectual property cases recently decided, the annual reports cover legal issues of general guidance that are selected to reflect adjudication standards and methods, as well as legal policies endorsed by the Supreme People’s Court. This translation includes all 34 cases and 37 legal issues as set forth in the 2012 Annual Report, touching on patent law, trademark law, copyright law, competition law, and litigation procedure. Although China is not a common law country, these cases still …

Dare You Sue The Tax Collector? An Empirical Study Of Administrative Lawsuits Against Tax Agencies In China, Ji Li

Washington International Law Journal

Though taxes are as certain as death, each year tens of thousands of people in the United States go to court to challenge their assessed tax liabilities, and many succeed. By contrast, very few Chinese taxpayers litigate against tax agencies, and most of those who sue eventually settle, despite low formal litigation costs. China’s nonlitigious culture does not fully explain the reluctance to sue, as courts in Taiwan adjudicate five times more lawsuits against tax agencies. Judicial bias favoring government officials, weak enforcement of judgments against the state, and agency retaliation help to explain the aversion to litigate disputes with …

Reproductive Justice Begins With Contraceptive Access In The Philippines, Elisabeth S. Smith

Washington International Law Journal

Restrictive Philippine laws and a lack of public funding have limited Filipinos’ access to modern contraception, resulting in high maternal mortality rates, high birth rates, unmet needs for family planning, and health disparities between the lowest-income and wealthier women. Following the 1991 decentralization reforms, Local Government Units plan, administer, and fund most Philippine health services. In the context of reproductive healthcare, decentralization has led to inequality, inadequate financing, successful opposition to contraception by the Catholic Church, and a lack of clear national standards. After a fourteen-year legislative struggle, on December 21, 2012, President Aquino signed “The Responsible Parenthood and Reproductive …

Reap What You Sow: Soil Pollution Remediation Reform In China, Dustin D. Drenguis

Washington International Law Journal

As China undergoes the fastest economic development in the history of the world, so too has its environmental problems shattered all precedents. While China’s leaders recognize they must change course, environmental concerns have long taken a back seat to economic development. Soil pollution is destroying China’s environment, affecting public health, and reducing the country’s food supply. Soil pollution slows China’s economic development, preventing land development in urban centers. Soil pollution also threatens China’s social stability because it has inspired marginalized groups to organize in protest of environmental conditions. Environmental remediation, or the obligations of a facility or the government to …

Government Liability For Regulatory Failure In The Fukushima Disaster: A Common Law Comparison, Joel Rheuben

Washington International Law Journal

This article considers the Japanese government’s response to the 2011 Fukushima nuclear power disaster, in assisting Tokyo Electric Power Company (“TEPCO”) with handling claims for compensation. It argues that in setting guidelines for claims, establishing a government alternative dispute resolution (“ADR”) body to deal with disputes, and creating a convoluted funding structure that has led to the effective nationalization of TEPCO, the government has intervened significantly in what are essentially private disputes governed by the Nuclear Compensation Law. This is contrasted with the less interventionist response of the New South Wales government in Australia to mass tort claims for asbestos …

More Market-Oriented Than The United States And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui

Washington International Law Journal

Compared to the more illustrious conceptualization of private property, the conceptualization of public property remains at a surprisingly infantile stage. The very definition of public property is ambiguous. This article utilizes a comparative case study of traffic congestion policies in the United States, China, and Singapore to highlight the conceptual pitfalls posed by the current confusion on public property. This article proposes a refined public property framework that offers greater conceptual clarity on the real issues at stake. In particular, this article argues that “property” in public property should include regulatory permits while “public” in public property should not be …

Commercial Religious Exercise: Translating Commercial Speech Doctrine To The Free Exercise Clause, Danieli Evans

Articles

The Patient Protection and Affordable Care Act and implementing regulations require for-profit businesses with more than fifty employees to include contraceptive products in their health care coverage for employees. Throughout the country, privately held corporations and their owners challenged this requirement on the grounds that it violates the Religious Freedom Restoration Act (RFRA), which states that the government shall not “substantially burden” a religious practice unless the regulation is “the least restrictive means” of serving a “compelling governmental interest.” The employers argued that requiring them to include contraceptives in employees’ health coverage substantially burdened their religious opposition to using certain …

Citizen Participation: Appraising The Saiban’In System, Daniel H. Foote

Articles

Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban'in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the …

Scholarship With Purpose: The View From A Mission-Driven School, Christine N. Cimini

Articles

This essay explores the ways that a law school’s unique culture impacts the role of the Associate Dean for Scholarship. Written by the first person to hold this position at Vermont Law School (VLS), this essay focuses specifically on how the Associate Dean for Scholarship supports VLS’s commitment “to developing a generation of leaders who use the power of the law to make a difference in our communities and the world.” This vision of the role, as implemented at VLS, includes: providing support to all faculty, regardless of status; supporting faculty who speak to broad audiences; and embracing a broad …

Hands Off Our Fingerprints: State, Local, Andindividual Defiance Of Federal Immigrationenforcement, Christine N. Cimini

Articles

Secure Communities, though little-known outside law-enforcement circles, is one of the most powerful of the federal government’s immigration enforcement programs. Under Secure Communities, fingerprints collected by state and local law enforcement and provided to the Federal Bureau of Investigation for criminal background checks are automatically shared with the Department of Homeland Security, which checks the fingerprints against its immigration database. In the event of a match, an immigration detainer can be issued and an individual held after they would otherwise be entitled to release. Originally designed as a voluntary program in which local governments could choose to participate, the Department …

Sentencing In Tax Cases After Booker: Striking The Right Balance Between Uniformity And Discretion, Scott A. Schumacher

Articles

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines. In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review. However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as …

Taking Images Seriously, Elizabeth G. Porter

Articles

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts …

Mind The Gap: Basic Health Along The Aca’S Coverage Continuum, Sallie Thieme Sanford [email protected]

Articles

As ACA implementation proceeds, expansion states should mind the gap — the gap between Medicaid and Marketplace. In this transition between insurance platforms, people can stumble. As a bridge between expanded Medicaid and the insurance Marketplaces, the ACA allows states to enact a Basic Health Program (BHP) supported by federal funds. The BHP option, which has been delayed until 2015, aims to reduce insurance costs and increase care continuity for low-income individuals and families. Interested states face a complicated calculus, one with significant unknowns and moving parts. In this article, I first place this new insurance affordability program in the …

Pivoting To Progressivism: Justice Stephen J. Chadwick, The Washington Supreme Court And Change In Early Twentieth Century Judicial Reasoning And Rhetoric, Hugh D. Spitzer

Articles

Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided …

Ethics Issues In Representing Intergovernmental Entities, Hugh D. Spitzer

Articles

The creation and operation of intergovernmental entities raise special professional responsibility issues for the lawyers involved in the formation and the long-term activities of multi-governmental bodies. It is particularly important for attorneys to pay attention to conflicts of interest that arise from giving simultaneous assistance to several governments, or from representing one entity in negotiations with other governments the attorney or firm represents. This paper briefly reviews various categories of interlocal entities in Washington State, as an example. It points out the distinctly different dynamics during the formation period and the operations period of an intergovernmental body. It then analyzes …

Transplanting Secured Transactions Law: Trapped In The Civil Code For Emerging Economy Countries, Xuan-Thao Nguyen, Bich T. Nguyen

Articles

It is time for Vietnam to amend its secured transactions law by creating a body of secured transactions law separate from the Civil Code. This new secured transactions law should embody the international community’s unitary approach. Separating secured transactions law from the Civil Code would allow Vietnam to revise its secured transactions law to respond and adapt to market reality, without waiting for the entire Civil Code to be revised all at once.

The Sneetches As An Allegory For The Gay Rights Struggle: Three Prisms, Peter Nicolas

Articles

In this essay, I invoke both versions of Dr. Seuss's The Sneetches as an allegory for the modern struggle for gay rights in the United States viewed through three different prisms. The first and most obvious of these prisms is the battle between the heterosexual majority and the gay minority represented by the two groups of Sneetches. Members of the majority seek to distinguish themselves with markers of social acceptance such as marriage, parenting, and military service, as well as access to certain other markers of social acceptance, including the ability to donate blood and become members in private organizations …

Gay Rights, Equal Protection, And The Classification-Framing Quandary, Peter Nicolas

Articles

Commentators and lower courts will speculate for some time on the actual holding and potential sweep of the Supreme Court's decision in Windsor v. United States [699 F.3d 169, 175 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013)], as well as how the Court might have resolved Perry v. Brown [671 F.3d 1052, 1063 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)] on the merits.

Of at least equal and perhaps greater importance, however, is a subtle yet critical unresolved threshold question lurking in the background of these two decisions, …