Law Commons^™

Addressing The Overrepresentation Of The Maori In New Zealand's Criminal Justice System At The Sentencing Stage: How Australia Can Provide A Model For Change, Joanna Hess

Washington International Law Journal

New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model …

China's Compliance With International Law: What Has Been Learned And The Gaps Remaining, Roda Mushkat

Washington International Law Journal

Chinese willingness and ability to play by the rules in the global arena is a critical issue that has long loomed large on the academic and policy agendas. A substantial body of knowledge has been built in the past two decades, shedding considerable light on key dimensions of the question. However, there is an apparent need to fine-tune the approach pursued thus far by seeking greater methodological robustness and better theoretical elucidation. Data collection procedures must be anchored more firmly in principles of scientific inquiry, providing a solid empirical foundation for reliable and valid generalizations, and single-cause explanations need to …

Regular Takings Or Regulatory Takings?: Land Expropriation In Rural China, Valerie Jaffee Washburn

Washington International Law Journal

This article takes as its starting point the recent spate of unrest in rural China over government takings of rural, agricultural land. Though the popular and scholarly press has paid a great deal of attention to this issue, few analyses have explored in depth the institutional and legal framework surrounding it. This piece first attempts such an exploration and concludes that the underlying issues have as much to do with China's national land use regulatory system as they do with the behavior of local governments that seize privately-farmed land for other uses. In fact, it is more productive to see …

Smooth Courtroom Moves: The "Exhibit Dance", Maureen A. Howard

Articles

Current court rules often require parties to identify proposed exhibits in advance of trial, as well as objections to the other side’s evidence, so the judge can make pretrial rulings on admissibility issues (e.g., FRCP 26). This practice saves precious trial time, minimizes the time that jurors are banished during sidebar discussions between judge and counsel, eliminates in large measure surprises about how the evidence will shape up at trial, and arguably promotes settlement. It also allows the exhibits to be pre-marked for identification, further streamlining the trial process.

Nonetheless, trial lawyers still need to be able to lay hands …

The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote

Articles

The theme of this symposium issue is ―Decision Making on the Japanese Supreme Court.‖ From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration.1 One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan’s career judiciary).2 The …

The Once And Future Equal Protection Doctrine?, Mario L. Barnes, Erwin Chemerinsky

Articles

This Essay is the third in a series of pieces assessing Equal Protection Doctrine and jurisprudence. Here, we endeavor to do two things: (1) to utilize constitutional structure, text, and history to interrogate the concept of equality protected under the Fourteenth Amendment; and (2) to critique the Supreme Court's present approach to adjudicating constitutional discrimination claims. With regard to the meaning of equality, we assert that if the text of the Reconstruction Amendments and the stated goals of Reconstruction are used to inform constitutional analysis, then equality should be understood as a substantive rather than formalist concept. Reconstruction, however, was …

The History Of Intellectual Property Taxation: Promoting Innovations And Other Intellectual Property Goals, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

No abstract provided.

Fame Law: Requiring Proof Of National Fame In Trademark Law, Xuan-Thao Nguyen

Articles

The public has always been infatuated with fame. Trademark law likewise has a long history of infatuation with fame. Protecting the fame embodied in a trademark against dilutive use by others has not been easy. The difficulty stems from the wording of the statute and judicial failure to understand the “fame” requirement. The fundamental question centers on what level of fame is required for the property-like protection against subsequent uses that dilute the famous trademark. This Article argues for national fame to be the requisite requirement for property-like anti-dilution protection under trademark law. The Article recommends that the proof of …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Articles

In this Article, I explore the division in the courts over the question of whether same-sex sexual conduct constitutes adultery in four contexts: (1) criminal adultery prosecutions, (2) fault-based divorce actions, (3) civil tort actions for interference with the marital relationship, and (4) murder cases raising a provocation defense based on a spouse's act of adultery.

In so doing, I arrive at the following conclusions. First, as illustrated in Part I, there is a significant overlap between states that recognize same-sex marriage and states where adulterous conduct is legally relevant, making this more than an interesting theoretical exercise. Second, Part …

Best Practices For Hiring And Retaining A Diverse Law Faculty, Kellye Y, Testy

Articles

As with all institutions, the history, character, identity, and accomplishments of each law school are the direct result of its people and their acts. For that simple reason, diversity is critical; it goes to the very core of what the institution is and what it does. With legal institutions, in particular, diversity plays a critical role in shaping the perception of the institution held by persons outside of it. In order for our system of law to function as the bedrock of our democratic society that it aims to be, legal institutions must be perceived as fair and just. If …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation,, Michael Hatfield

Articles

This essay is to help tax lawyers decide how to handle casual conversations centered on denying, defying, or destroying the tax system. One option is to walk away, ending the conversation and silencing the dialogue. The next option is to engage. I want to persuade tax lawyers that they should usually engage in the conversation. I try to do this in Part III.

There are two kinds of legal ethics essays, and one must choose which kind to write, and it is useful to the reader to know upfront which kind the author chose to write. One kind begins with …

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

Articles

This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.

Surviving (And Thriving) In The First Year Of Trial Practice, Maureen A. Howard

Articles

The substance and procedure of trial practice may vary across different law firms and agencies, but there are certain challenges that all first-year trial lawyers face when starting out. No matter how brilliant and capable a newly minted attorney may be, there are some lessons more indelibly learned on the job than in law school; while these lessons are undoubtedly valuable, they can be painful and embarrassing. Although reading about the possible pitfalls of the first year of trial practice is not as educational as walking through the fire oneself, I have collected over the years a few tips and …

Effective Pre-Trial Motions: Persuading The Judge, Maureen A. Howard

Articles

Victories won in pre-trial motions can significantly affect the direction and outcome of a trial. For this reason, successful trial lawyers prepare for motions with the same thoroughness that they employ for the trial itself. Arguing a motion to a trial judge, however, is different from arguing your case to a jury; to be effective, an advocate needs to be mindful of the difference.

Judges generally resist what they perceive as emotional manipulation, theatrics, or excessive rhetoric. Many judges expect lawyers to cleanly and succinctly argue the facts and the law without employing any appeal to emotion. That being said, …

The Boundaries Of Privacy Harm, M. Ryan Calo

Articles

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

Getting The "Story" Out: Teaching Admiralty At The University Of Washington, Craig H. Allen

Articles

I count myself fortunate indeed to be a law teacher and to have the privilege of teaching admiralty to the next generation of attorneys. My good fortune is compounded by the fact that I teach admiralty (and several other maritime law courses) at the University of Washington, a major research university with a complementary graduate level School of Marine Affairs. There is no finer venue for studying maritime law than the state of Washington. By any measure, Washington is among the most “marine” and most trade-dependent states in the nation, and it has long been home to a distinguished maritime …

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Articles

Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent …

The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor

Articles

The discovery and commercialization of biotechnology innovations often rely on collaborations between universities and for-profit firms. In the United States, the federal government funds much of university life sciences research and, under the Bayh-Dole Act, has some rights to research arising from that funding.

Two important strands of invention ownership issues in this web of collaboration arose under litigation that culminated in the recent United States Supreme Court decision Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc. (“Stanford v. Roche” or “Stanford”). The first is the question of whether Bayh-Dole …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld

Articles

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr.

Articles

This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better?

We know some of these things about all of these laws. I’ll exercise editorial judgment and declare four common features …

Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson

Articles

In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.

While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The …

Meaningful Legal Representation For Children And Youth In Washington's Child Welfare System: Standards Of Practice, Voluntary Training, And Caseload Limits In Response To Hb 2735, Lisa Kelly

Books

Introduction, pages 1-2

Executive Summary, pages 3-4

Child Recommendation Practice Standards, pages 5-14

Voluntary Training Recommendations, page 15

Supporting Documentation

• Appendix A, HB 2735, Tab A
• Appendix B, Children's Representation Sub-Workgroup Membership List, Tab B
• Appendix C, American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, Tab C

Patent Protection Of Medical Records—Focusing On Ethical Issues, Yūsuke Satō, Jiameng Kathy Liu

Washington International Law Journal

The following is a translation of “Patent Protection of Medical Methods—Focusing on Ethical Issues,” an article written by Professor Yūsuke Satō in the June 2007 issue of the Japanese periodical Annual of Industrial Property Law. In Japan, despite the lack of an explicit statutory prohibition, methods of medical treatment have never been patentable. The Japan Patent Office (“JPO”) has rejected patenting medical processes on ethical grounds, interpreting that they do not fulfill the statutory requirement of “industrial applicability” in the main sentence of Article 29, Section 1 of the Patent Act, and courts have been confirming this practice. In light …

Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz

Articles

Intellectual property (IP) sits at the center of the global economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who have expertise in intellectual property law. These lawyers are the new leaders in intellectual property law.

The global demand for intellectual property law-trained lawyers triggered a "big bang" in the creation of advanced intellectual property law programs (IP Programs) at American law schools. The new leaders in …

The "Three Strikes" Policy In Korean Copyright Act 2009: Safe Or Out?, Sun-Young Moon, Daeup Kim

Washington Journal of Law, Technology & Arts

Korea has grown to be one of the Internet powers in a short period. Because of insufficient copyright protection, Korea recently revised the Korean Copyright Act to reinforce protection of copyright and promote sound distribution of copyrighted works. The new law allows the Minister of Culture, Sports and Tourism to issue orders and the Korea Copyright Commission to issue recommendations. Orders and recommendations are distinguished by the subject of the issuance and the legal force. Orders and recommendations enable online service providers to delete or stop transmission of illegal reproductions, give warning notices to infringers, or suspend the account of …

Standardizing Warhol: Antitrust Liability For Denying The Authenticity Of Artwork, Gareth S. Lacy

Washington Journal of Law, Technology & Arts

Art authentication boards are powerful; their determinations of authenticity can render artwork worthless or add millions of dollars to market value. In the past, boards that denied authenticity of artwork typically risked tort liability for disparagement, defamation, or fraud. In Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., however, an art collector alleged monopolization and market restraint after an authentication board denied the authenticity of his Andy Warhol painting by stamping “DENIED” on the back of it. The case is the first antitrust lawsuit against an authentication board to survive the defendant’s motion to dismiss. The decision …

"Capital" Punishment: Evaluating An Investor's Secondary Copyright Infringement Liability After Veoh, James L. Proctor Jr.

Washington Journal of Law, Technology & Arts

In UMG Recordings, Inc. v. Veoh Networks, Inc., the U.S. District Court for the Central District of California considered claims that investors in a privately-held corpor-ation were secondarily liable for copyright infringement. The Veoh court findings, which set out current secondary copy-right infringement law, provide guidance for investors by clarifying their potential liability for copyright infringement committed by the company in which they invested. However, because the decision was fact-specific, this guidance is incomplete. For example, the court found that the investor neither controlled the infringing activities nor reaped direct financial benefit from them. This leaves open for further …

Exportability's Effect On Process Patent Enforcement: Why § 271(F) Export Restrictions Do Not Apply To Intangible Process Claims, Homer Yang-Hsien Hsu

Washington Journal of Law, Technology & Arts

Congress enacted 35 U.S.C. § 271(f) to broaden U.S. patent protection and prohibit shipping patented devices in smaller components for assembly overseas. Section 271(f) creates an infringement cause of action for sending comp-onents outside the United States for assembly. Whether § 271(f)—which clearly applies to physical things—also applies to process claims has been hotly debated. In Cardiac Pacemakers, Inc. v. St. Jude Med Inc., the United States Court of Appeals for the Federal Circuit held that § 271(f) does not apply to process claims because a compo-nent of a process claim is an intangible step that cannot be physically …

How Much Is Too Much? Copyright Protection Of Short Portions Of Text In The United States And European Union After Infopaq International A/S V. Danske Dagblades, Connor Moran

Washington Journal of Law, Technology & Arts

The recent case Infopaq International A/S v. Danske Dagblades Forening decided by the Court of Justice for the European Union could influence businesses that summarize or aggregate content. Under this ruling, excerpts of copy-righted material unproblematic in the United States could invite liability if reproduced in European Union member states. In the United States, copying words or phrases only infringes a copyright where those words or phrases are particularly unique or core to the original work. By contrast, the European Union Information Society Directive provides an exclusive right to even partial reproductions. In the Infopaq case, the European Court of …

Everday Research, Mary Whisner

Librarians' Articles

Law students and lawyers, like the rest of us, need to find information for their everyday lives. Ms. Whisner outlines ways that law students can use research to help them find jobs or decide what type of legal career they want to pursue.