Law Commons^™

Bridging The Global Divide In Ai Regulation: A Proposal For A Contextual, Coherent, And Commensurable Framework, Sangchul Park

Washington International Law Journal

As debates on potential societal harm from artificial intelligence (AI) culminate in legislation and international norms, a global divide is emerging in both AI regulatory frameworks and international governance structures. In terms of local regulatory frameworks, the European Union (E.U.), Canada, and Brazil follow a “horizontal” or “lateral” approach that postulates the homogeneity of AI, seeks to identify common causes of harm, and demands uniform human interventions. In contrast, the United States (U.S.), the United Kingdom (U.K.), Israel, and Switzerland (and potentially China) have pursued a “context-specific” or “modular” approach, tailoring regulations to the specific use cases of AI systems. …

Crypto Losses, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The crypto industry has been hit hard with various market forces and scams, leaving investors with trillion-dollar losses in recent years. The appropriate tax treatment of such losses has yet to be fully examined, as there is scant guidance and a dearth of academic literature on the subject. This Article attempts to fill this gap by applying general tax principles to crypto losses and making several recommendations to improve the clarity and consistency of tax results. It explores various theories of crypto loss “realization” (including theft, abandonment, and worthlessness), highlighting where additional guidance is needed. And it considers appropriate legislative …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

Articles

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

The Need For An International Ai Research Initiative: How To Create And Sustain A Virtuous Research-Regulation Cycle To Govern Ai, Kevin Frazier

Washington Journal of Law, Technology & Arts

This paper explains the need for an international AI research initiative. The current focus of lawmakers at the subnational, national, and international level on regulation over research has created an imbalance, neglecting the critical role of continuous, informed research in developing laws that keep pace with rapid technological advancements in AI.

The proposed international AI research initiative would serve as a central hub for comprehensive AI risk analysis, modeled on successful precedents like CERN and the IPCC. CERN exemplifies a collaborative research environment with pooled resources from member states, leading to significant advancements in particle physics. Similarly, the IPCC has …

Google Searching For The Truth: Examining The Admissibility Of Internet Search History, Chisup Kim

Washington Journal of Law, Technology & Arts

The internet has become more ubiquitously available than ever before, with search engines serving as the portals to an unparalleled amount of information. As a byproduct of this phenomenon, a vast amount of internet search history has also begun to enter legal proceedings as evidence. The most intimate questions that defendants have asked their search engines have begun to be examined under the scope of the Federal Rules of Evidence or a state equivalent. This Comment examines the admissibility of internet search history and provides a general legal framework based on the Federal Rules of Evidence. Drawing upon six cases, …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Washington Journal of Law, Technology & Arts

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

When Ai Remembers Too Much: Reinventing The Right To Be Forgotten For The Generative Age, Cheng-Chi Chang

Washington Journal of Law, Technology & Arts

The emergence of generative artificial intelligence (AI) systems poses novel challenges for the right to be forgotten. While this right gained prominence following the 2014 Google Spain v. Gonzalez case, generative AI’s limitless memory and ability to reproduce identifiable data from fragments threaten traditional conceptions of forgetting. This Article traces the evolution of the right to be forgotten from its privacy law origins towards an independent entitlement grounded in self-determination for personal information. However, it contends the inherent limitations of using current anonymization, deletion, and geographical blocking mechanisms to prevent AI models from retaining personal data render forgetting infeasible. Moreover, …

Disparately Disabled: Advocating For All Federal Courts Of Appeals To Make Disparate Impact Claims Cognizable Under Federal Disability Rights Law, Dustine Bowker

Washington Law Review

People with disabilities have the same rights and deserve to enjoy the same privileges as everyone else. However, people with disabilities face societal inequities that hinder their full participation in society. As a result of persistent advocacy and civil protest, federal laws have been enacted to prohibit discrimination based on a person’s disability. Yet, policies that discriminate against people with disabilities have continued. One cause of this troubling situation is that federal circuit courts still disagree on whether federal disability rights laws, including Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), allow plaintiffs …

Washington Civil Jury Trials Via Zoom: Perspectives From The Bench, Marisa Pasnick

Washington Law Review

Many professions have felt the impact of the coronavirus (COVID-19) pandemic, including the legal field. At the onset of COVID-19, many courthouses closed and trials halted, but as the pandemic continued, the need to resume judicial proceedings led courts to turn to virtual platforms to conduct civil jury trials. This Comment examines the response of judges in Washington State to the use of Zoom for conducting civil jury trials. Interviews with judges across Washington reveal a stark contrast in opinions among judges in different districts as well as within districts. This Comment answers the question of how judges feel about …

Radical Visions For The Law Of Peace: How W.E.B. Du Bois And The Black Antiwar Movement Reimagined Civil Rights And The Laws Of War And Peace, Andrew J. Lanham

Washington Law Review

This Article reconstructs the history of Black antiwar activism in the twentieth-century United States and argues that Black antiwar activists played a significant but largely forgotten role in the development of both modern civil rights law and the international law of war and peace. The Article focuses on the career of W.E.B. Du Bois, tracing how he built coalitions between civil rights and antiwar organizations to pursue a series of shared legal campaigns. Du Bois’s antiwar work was also representative of a larger tradition, and his career illuminates how a range of Black activists and civil rights lawyers like Pauli …

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Washington Law Review

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

The Penal Judgment Exception To Full Faith And Credit: How To Bind The Bounty Laws, Walker Mckusick

Washington Law Review

In the current moment of interstate friction over abortion, the penal judgment exception poses a barrier against interstate enforcement of bounty laws. A doctor who prescribes a medicated abortion to a Texas patient may be exposed to civil liability—even in faraway Washington State. A Washington court asked to enforce a Texas judgment against the doctor is subject to the Full Faith and Credit Clause. Article IV, Section 1 of the United States Constitution mandates that each state give full faith and credit to judgments rendered in sister states. Under Texas Senate Bill 8 (S.B. 8), any member of the public …

From Lightbulbs To #Sheinhauls: Considerations For Planned Obsolescence Regulation In The Modern Era, Nicole Cullen

Washington Law Review

“Planned obsolescence,” broadly defined as conduct by manufacturers to shorten product lifespans and spur consumption, is characteristic of the American economy. Such conduct largely manifests in widely accepted competitive strategies that require consumer participation: The periodic release of products or emergence of a trend, for example. In some instances, planned obsolescence conduct reaches beyond the accepted competitive practices, desired by consumers, to conduct that clearly harms consumers with no countervailing rationale. Such practices effectively cease product function prematurely, either through product failure or poor performance and inefficient repair costs. While this conduct largely evades legal capture, it intersects with many …

Internet Drug Prohibition And The Opioid Overdose Crisis, Benjamin A. Barsky

Washington Law Review

The Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) prohibits controlled substance tele-prescribing when it occurs without a preliminary in-person medical evaluation. This Article details the Ryan Haight Act’s consequences for the practice of telemedicine in general and opioid addiction treatment in particular. In doing so, it builds on literature exploring the tension between the federal criminal regulation of controlled substance prescribing and the management of large-scale public health crises, particularly the opioid overdose crisis.

By restricting the tele-prescription of certain controlled substances used for opioid addiction treatment, the Ryan Haight Act limits access to care for a …

Reynolds Revisited: The Original Meaning Of Reynolds V. United States And Free Exercise After Fulton, Clark B. Lombardi

Articles

This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article …

Constitutional Rights Of Artificial Intelligence, Mizuki Hashiguchi

Washington Journal of Law, Technology & Arts

On February 8, 2022, the Italian Parliament approved constitutional amendments to protect the environment. A member of Parliament stated that the environment is an element of Italy, and that safeguarding the environment means safeguarding humans. The need to protect the environment seems to have become a critical component of public conscience. Likewise, if society perceives that artificial intelligence is vitally important for humanity, does constitutional law allow constitutional rights for artificial intelligence to be created?

Extending constitutional rights to artificial intelligence may be consistent with the jurisprudential history of rights. Constitutional rights have undergone metamorphosis over time to protect new …

Rembrandt’S Missing Piece: Ai Art And The Fallacies Of Copyright Law, Eleni Polymenopoulou

Washington Journal of Law, Technology & Arts

This article discusses contemporary problems related to Artificial Intelligence (AI), law and the visual arts. It suggests that the fallacies of copyright law are already visible in legal conundrums raised by AI in the creative sector. These include, for instance, the lack of uniformity in relation to creations’ copyrightability, the massive scale of copyright infringement affecting visual artists and the creative industry, and the difficulties in implementing media regulation and cyber-regulation. The deeply cherished ‘human authorship’ criterion that was sustained recently by a US Federal Appeals Court in Thaler, in particular, is a short-term solution to the legal challenges …

All Eyez On Rap & Hip-Hop: Analyzing How Black Expression Is Criminalized And The Language Of The Rap Act Of 2022, Maia Young

Washington Journal of Law, Technology & Arts

The Black existence, in the United States of America, has always been regarded as a conditional right. Conventionally, Blackness must always be nonviolent and non-disruptive to safely exist. Because of this, Blackness cannot be confined to restraints and disrupts these conventions with acts of joy and creative expression. Black creativity is both unconventional and sacred. Black creative expression documents, preserves, and unifies cultural lived experiences, from a first-hand lens of those oppressed. Creative and artistic expression celebrates the myriad of stories that are a part of the collective Black experience. Yet, Black creative expression is now being weaponized by prosecutors …

Brief Of Amicae Curiae Susan Boundy-Sanders And Paula Waters In Support Of Friends Of Sammamish Valley And Futurewise, King County V. Friends Of Sammamish Valley, Washington State Supreme Court Docket No. 102177-1, William Bailey

Court Briefs

No abstract provided.

Amicus Brief Of Native Nations In Montana, Kathryn Shanley, And Denise Juneau, Held V. State Of Montana, Montana Supreme Court Docket No. Da 23-0575, Monte Mills, Jeremiah Chin, Mia Montoya Hammersley, Fredrick Ole Ikayo, Clare Derby, Natasha De La Cruz

Court Briefs

Montana’s Constitution specifically recognizes and protects the right of Native Nations and Indigenous individuals to preserve and sustain their cultural traditions through the education of future generations. These rights are inherently tied to the right to a clean and healthful environment.

Big Data Searches And The Future Of Criminal Procedure, Mary Fan

Articles

This Article proceeds in three parts. Part I illuminates the nostalgic Luddism that influences Fourth Amendment jurisprudence and the challenges posed by evolving technologies to this dominant lens. This Part explains the operation of geofence and keyword warrants and how their power to crack cold cases by unidentified perpetrators both tempt and terrify. The confusion in the courts over the constitutionality of geofence and keyword warrants is emblematic of the larger challenges of the Romantic Luddism in Fourth Amendment originalism that has grown in influence over the decades.

Part II frames and theorizes the concepts of collateral impact and collateral …

Public Health Consequences Of Appellate Standards For Hostile Work Environment Claims, Lauren Krumholz

Washington Journal of Social & Environmental Justice

No abstract provided.

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith

Washington Journal of Social & Environmental Justice

No abstract provided.

Pursuing The Exemption: The Makah's White Whale, Sarah Van Voorhis

Washington Journal of Social & Environmental Justice

No abstract provided.

A Tale Of Two Subject-To-Tax Rules, Sol Picciotto, Jeffery M. Kadet, Bob Michel

Articles

In this article, we analyze and compare two proposals for a new subject-to-tax rule (STTR) provision to be included in tax treaties, one from the U.N. Tax Committee and the other from the G20/OECD inclusive framework on base erosion and profit shifting. The U.N. proposal is broad, and would clarify that restrictions in tax treaties on taxation of income at the source where it is derived are conditional on that income being taxed at an agreed-upon minimum rate in the country where it is received. The inclusive framework version is much more limited, being confined to payments between connected entities …

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

In The Midst Of Bankruptcy: How Cryptocurrency's Classification Affects Creditors Who Were Once Customers, Mia Qu

Washington Law Review

In 2022, Congress proposed the Digital Commodities Consumer Protection Act to amend the Commodity Exchange Act and define a new type of commodity: digital commodity. The definition of digital commodity encompasses cryptocurrency and provides the Commodity Futures Trading Commission with jurisdiction over digital asset transactions. This definition of digital commodity has two important implications. First, it signals the lawmakers’ tendency to generalize cryptocurrency as a commodity. Second, it brings complications into how creditors—especially individual crypto account holders—can recover in the recent bankruptcy cases involving prominent crypto companies. This Comment contains four components. First, it provides a brief explanation of cryptocurrency …

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Washington Law Review

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

The Consumer Bundle, Shelly Kreiczer-Levy

Washington Law Review

Can property law have a consumer protection purpose? One of the most important consumer law concerns today is the limited control consumers have over the digital assets and software-embedded products they purchase. Current proposals for reform focus on classifying the transaction as either license or sale and rely mostly on contract law and consumer protection regulation with a few calls for restoring ownership rights. This Article argues that property law can protect consumers by establishing a minimum bundle of rights for consumers: the “consumer’s bundle.” Working with property theory and an analysis of property values, this Article explains the importance …