Law Commons^™

The Perspective Of Law On Contract, Aditi Bagchi

Washington Law Review

What is the perspective of law on contract? This Article will consider two dimensions of the perspective we offer students. Part I will consider how we present the nature of contract law. That is, it will explore the extent to which traditional methods of teaching unduly underplay indeterminacy and disagreement. In that Part I distinguish between inductive and deductive legal reasoning and suggest we may give short shrift to the former in teaching. Part II will consider the attitude of the law toward contract as a social practice. Here I distinguish between internal and external perspectives on law and suggest …

Cases And Controversies: Some Things To Do With Contracts Cases, Charles L. Knapp

Washington Law Review

As a co-author of one of the two dozen or more currently-in-print Contracts casebooks, I obviously have both a point of view about, and a personal stake in, the survival of this particular method of instruction. Whether the legal casebook—or any other book, in the form of bound sheets of paper—will remain a part of our academic culture much longer is clearly up for grabs, however. Electronic records have so many advantages over the printed page that, at least for many purposes, they will surely become the dominant form of preserving, retrieving, and transmitting information, if indeed they are not …

Copyrights In Faculty-Created Works: How Licensing Can Solve The Academic Work-For-Hire Dilemma, Glenda A. Gertz

Washington Law Review

Many copyrightable works of university faculty members may be works-for-hire as defined under current U.S. copyright laws. Copyrights in works-for-hire are treated differently than copyrights in other works with respect to ownership, duration, termination rights, and requirements for transfer. Ambiguity over whether a specific faculty-created work is a work-for-hire creates legal uncertainties and potential future litigation about the initial ownership of the copyright, length of the copyright term, and termination rights which could impact all future transfers and licensing. Many universities have attempted to define ownership of faculty-created works through university policies. These policies are ineffective to alter the presumption …

Contract Stories: Importance Of The Contextual Approach To Law, Larry A. Dimatteo

Washington Law Review

How law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using “stories” to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses.

Unpopular Contracts And Why They Matter: Burying Langdell And Enlivening Students, Jennifer S. Taub

Washington Law Review

Thus, the purpose of this piece is to provide an alternative: a transformation of how Contracts is taught in law schools so that we meet a variety of educational objectives. This is less of a prescription than it is a resolution made in the public sphere: a promise to shake things up in my own classroom and thus hopefully do better by students in the long run. It is also the beginning of a search to benchmark against the practices of others, and to seek input from those who have already begun to transform their Contracts teaching materials and methods. …

Contract As Pattern Language, Erik F. Gerding

Washington Law Review

This essay examines how patterns enable the transformation of contractual provisions into contracts, contracts into transactions, and transactions into markets. Although contract design patterns are broader than contract boilerplate (as described in Part II.C. below), some of the extensive legal scholarship on boilerplate19 helps explain how contract patterns generate agreements, transactions, and markets. The work of Henry Smith on the modularity of contract boilerplate proves particularly useful in this regard. Contract patterns perform several functions. Contract patterns break complex problems and bargains into components. Attorneys can then repeatedly apply these particular solutions to similar problems. Patterns also serve as heuristics …

Making Science Useful In Complex Political And Legal Arenas: A Case For Frontloading Science In Anticipation Of Environmental Changes To Support Natural Resource Laws And Policies, Usha Varanasi

Washington Journal of Environmental Law & Policy

In the spirit of fostering interdisciplinary dialogue, the Washington Journal of Environmental Law and Policy is proud to present this Article. Professor Varanasi takes examples from her career as a fisheries scientist for the National Oceanographic and Atmospheric Administration to argue for a new model for ecological disaster planning and response, in which baseline ecosystem data is collected in advance of possible incidents so that decision-makers are empowered to make informed choices from the first stages of disaster response. She concludes by urging sustained and targeted funding for long-term ecosystem data collection to better understand various disasters’ effects on a …

"We Can Lead": Washington State's Efforts To Address Ocean Acidification, Amanda M. Carr

Washington Journal of Environmental Law & Policy

The world’s oceans have become approximately thirty percent more acidic since the Industrial Revolution and are currently acidifying at a rate ten times faster than anything the earth has experienced over the last fifty million years. Washington State is undertaking a groundbreaking effort to address ocean acidification, a global issue that has serious implications for the world’s oceans, marine ecosystems, and the individuals and communities that depend upon the services that they provide. These localized actions, in isolation, will be insufficient to effectively combat and adapt to the acidification of marine waters. While acknowledging this generally accepted premise, Washington has …

Practical Alternatives For Silvicultural Pollution Reduction In Light Of Decker V. Nedc, Erin Anderson

Washington Journal of Environmental Law & Policy

Decker v. Northwest Environmental Defense Center is a recently decided Supreme Court case that originated in the forests of Oregon. Frustrated by the level of pollution in Oregon rivers that was originating from logging roads, an environmental group sued the State to enforce the Clean Water Act and require Oregon to issue National Pollutant Discharge Elimination System (NPDES) permits for the pollution. The Supreme Court held that the Environmental Protection Agency’s (EPA) decision to exclude water pollution from logging roads from NPDES permitting was entitled to deference, reversing the Ninth Circuit’s decision that such pollution required NPDES permits under the …

Legal Hurdles Faced By Deep Green Buildings: Case Studies And Recommendations, Kathleen O'Brien, Nicole Denamur, Elizabeth Powers

Washington Journal of Environmental Law & Policy

The recent emphasis on building design, construction, and performance has revealed legal challenges and risks an owner or project team may face when attempting to construct a “deep green” building. The intent of this article is to encourage and facilitate the development of deep green and high performing buildings by reducing perceived and actual risks as well as challenges associated with their development, construction, and operation. This article explores these risks and challenges through a discussion of specific examples from two case study projects located in Seattle, Washington. These examples are arranged in two broad categories: (1) the process of …

Washington Environmental Law Year In Review, Abigail Pearl, Hunter Elenbaas

Washington Journal of Environmental Law & Policy

We are proud to present the first installment of the Washington Environmental Law Year in Review. This feature, which will be published annually in the Fall issue, will track significant developments in the environmental laws and regulations of Washington, and present a summary of these changes organized by topic.

A Sinking Ship: Epa Regulation Of The Navy Training Program Sinkex Under The Ocean Dumping Act And The Toxic Substances Control Act, Laura Zippel

Washington Journal of Environmental Law & Policy

The EPA currently regulates the Navy program Sink Exercise (SINKEX) under a permit issued under the Ocean Dumping Act. The Navy regards SINKEX as both a “live fire exercise,” important for the training of sailors in tactics and operations, and as a ship disposal program. Due to the toxic materials used to construct the derelict ships–including PCBs, asbestos, and lead–a case was filed in San Francisco District Court alleging that the EPA is required to regulate and permit SINKEX under the Toxic Substances Control Act (TSCA). This comment addresses the complexities arising from EPA permitting of SINKEX, including a comparison …

The Columbia River Treaty's Canadian Entitlement: The Role Of Liberalized And Integrated North American Electricity Markets In A New Calculation, Kevin Kirkpatrick

Washington Journal of Environmental Law & Policy

The Columbia River Treaty between the United States and Canada may be terminated unilaterally by either nation beginning next year; this has brough attention within the Pacific Northwest and beyond to the 1964 agreement on river flows. Much of the discussion about updating the accord highlights important goals such as bettering the protection of fish and increasing public participation in ecosystem governance, but often neglects analysis of how electricity markets have changed over the past fifty years. This Comment, through an examination of key developments in utilities law and application of economic theory, attempts to parse principles that may prove …

Reply Brief. Lawson V. Fmr Llc, 134 S. Ct. 1158 (2014) (No. 12-3), 2013 U.S. S. Ct. Briefs Lexis 4419, Eric Schnapper, Indira Talwani, Kevin G. Powers

Court Briefs

No abstract provided.

The Collateral Consequences Of Ex Post Judicial Review, Brianne J. Gorod

Washington Law Review

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable …

The Confusion Trap: Rethinking Parody In Trademark Law, David A. Simon

Washington Law Review

This Article suggests using existing doctrinal levers in trademark law to accommodate parodies in a more balanced fashion. To reach this conclusion, this Article examines the parody doctrine in U.S. trademark law using two lenses. The first lens is trademark doctrine itself. Here I explore the various approaches courts use to resolve trademark disputes involving parody. The other lens is copyright law. Through this lens I examine how courts deciding trademark parody disputes employ the Supreme Court’s most recent decision on parody in copyright, Campbell v. Acuff-Rose Music, Inc. (1994). I also use this decision to examine the relationship …

Washington Trust Laws' Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

Washington Law Review

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

"Carving At The Joints": Using Issue Classes To Reframe Consumer Class Actions, Jenna C. Smith

Washington Law Review

Achieving class certification in consumer litigation is a highly controversial and greatly debated area of civil procedure. Historically, certification under Federal Rule of Civil Procedure 23(b)(3) has been difficult to achieve due to the tension between the presence of individual issues and Rule 23(b)(3)’s predominance, superiority, and management considerations. The future of certification for Rule 23(b)(3) classes was further put in question with the United States Supreme Court’s landmark decision in Wal-Mart v. Dukes in 2011, which enhanced the level of scrutiny courts apply at the Rule 23(a) level of analysis. The Court’s 2013 decisions in Comcast Corp. v. Behrend …

Washington Trust Law's Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

Articles

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

The Decline And (Possible) Renewal Of Aspiration In The Clean Water Act, Robert W. Adler

Washington Law Review

In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward …

A Modified Theory Of The Law Of Federal Courts: The Case Of Arising-Under Jurisdiction, Simona Grossi

Washington Law Review

This Article examines and evaluates the legal process method as a perspective from which to assess the law of federal courts. It then offers a modified approach to legal process that encompasses the full range of considerations that ought to inform modern judicial decision-making in this context. With that modified approach in mind, the article describes and critiques the Supreme Court’s statutory arising-under jurisprudence, both as originally developed and as currently practiced. The article shows that while the Court’s early “arising-under” jurisprudence was founded on durable principles and on the reasoned application of those principles, more recent decisions by the …

Distinct Sources Of Law And Distinct Doctrines: Federal Jurisdiction And Prudential Standing, William James Goodling

Washington Law Review

Federal courts are courts of limited jurisdiction. Their jurisdiction is limited by subject-matter jurisdiction, personal jurisdiction, and, to an uncertain extent, standing. While it is well established that Article III standing is jurisdictional, the federal circuit courts are divided on whether judge-made prudential standing is jurisdictional, and the Supreme Court has not directly weighed in. The jurisdictional status of a doctrine has two important procedural consequences. First, litigants cannot forfeit a defense for lack of jurisdiction, meaning that such a defense can be raised for the first time on appeal. Second, federal courts have a sua sponte obligation to ensure …

Informal Collateral Consequences, Wayne A. Logan

Washington Law Review

After a thirty-year punitive binge, the nation is in the process of awakening to the vast array of negative effects flowing from its draconian crime control policies. The shift is perhaps most evident in the realm of corrections, which since the early 1980s has experienced unprecedented population growth. Driven by a number of factors, not the least of which is the enormous human and financial cost of mass incarceration, policy makers are now shrinking prison and jail populations and pursuing cheaper non-brick-and-mortar social control options. This Essay examines another facet of the shift: increasing concern over collateral consequences, the many …

An Uneasy Union: Same-Sex Marriage And Religious Exemption In Washington State, Peter Dolan

Washington Law Review

Same-sex marriage promises to be one of the defining issues of the twenty-first century. While supporters of same-sex marriage have welcomed a shift in the public’s perception and increasing acceptance of same-sex marriage in the last decade, controversy remains over how to balance the competing rights between marriage equality and religious freedom. While most same-sex marriage statutes around the country include religious exemptions for religious officials, it is unclear how, or whether, these protections should extend to wedding service providers who have a religious objection to same-sex marriage. Conflicts between same-sex couples seeking wedding services and wedding service providers who …

Shaking Out The "Shakedowns": Pre-Discovery Dismissal Of Copyright Infringement Cases After Comparison Of The Works At Issue, Evan Brown

Washington Journal of Law, Technology & Arts

In an era of copyright trolling, digital distribution, and widespread reappropriation of creative works, the specter of “shakedown” copyright infringement litigation looms larger than ever before. Some plaintiffs will hold the prospect of expensive and time-consuming discovery over alleged infringers to provoke settlement. In the wake of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, courts are more likely to consider the costs and time requirements of discovery when considering a defendant’s 12(b)(6) motion to dismiss. Several courts have recently indicated a willingness to grant motions to dismiss in copyright infringement cases when …

Trouble For Trolling: Courts Reject Copyright Trolling Tactics, Megan R. Haslach

Washington Journal of Law, Technology & Arts

Copyright trolling has become a popular, but widely criticized tactic used by copyright holders to defend their intellectual property rights. One method involves rights holders selling their rights to infringed works to holding companies, as those companies may more easily file hundreds of suits against potential infringers at once. Another method involves rights holders themselves filing mass lawsuits against hundreds of BitTorrent users at once using their anonymous IP addresses, threatening to name the alleged infringers in a lawsuit if a settlement is not paid. However, in many recent cases, courts have shut down such tactics by invoking procedural deficiencies …

Criminal Defenses To Anti-Circumvention Charges For Modifying Video Game Consoles, Peter Dang

Washington Journal of Law, Technology & Arts

In United States v. Crippen, Matthew Crippen was charged with modifying Xbox 360 consoles for others for a fee. His modifications allowed the consoles to run unlicensed software in violation of the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA). In the first criminal trial arising from these provisions, the United States District Court for the Central District of California granted a motion in limine allowing the government to exclude evidence of fair use, holding that the DMCA provisions contained no fair use exception. After the prosecution abruptly dropped the case in December 2010, several questions remain unanswered: …

Can You Hear Me Now? The Race To Provide America With Universal, High-Speed Wireless Coverage, Dina Neda Rezvani

Washington Journal of Law, Technology & Arts

As the United States becomes increasingly dependent on universal, high-speed wireless services, infrastructural limitations are producing tension. The interests of consumers, telecommunications companies, state and local authorities, and businesses, as well as national security, are all at stake. Yet legal uncertainty stemming from a split among federal circuit courts hampers the development of solutions. The courts diverge on the interpretation of a key provision of the Telecommunications Act (TCA), 47 U.S.C. § 332(c)(7)(B), that regulates wireless service providers’ ability to erect new towers. There is great need for a national standard to give mobile providers a uniform means of accommodating …

Tor Exit Nodes: Legal And Policy Considerations, Sarah Campbell Eagle, Abigail St. Hilaire, Kelly Sherwood

Technology Law and Public Policy Clinic

Anonymity Networks

The Internet is a constant companion to people the world over and as technology improves it is becoming more accessible every day. With the amount of communication that occurs online, it was only a matter of time before anonymity became an important topic of discussion. Several so-called “anonymity networks” have been developed to facilitate anonymous communication by the citizens of the web. Because the use of these networks is already so widespread, the time is ripe for a discussion of their merits and potential government responses to this phenomenon. An anonymity network “enables users to access the Web …

Amicus Curiae Brief Of Law Professors On Issue Of Exhaustion In Support Of Petitioners. Epa V. Eme Homer City Generation, 134 S.Ct. 1584 (2014) (Nos. 12-1182, 12-1183), Amy J. Wildermuth, Sanne H. Knudsen

Court Briefs

Amici Curiae are law professors who research, teach, and write on federal environmental and administrative law. They are concerned in this case by the majority's conclusion below that issues related to the interpretation of ambiguous statutory language could be reached even though they were never raised during the rulemaking process. This conclusion is contrary to the clear language of the issue exhaustion requirement articulated in Section 307(d)(7)(B) of the Clean Air Act and contrary to the proper role of reviewing courts under Chevron. As a result, it could have far-reaching impacts for a wide array of administrative cases and …