Law Commons^™

Granting Permanent Resident Aliens The Right To Vote In Local Government: The New Komeitō Continues To Promote Alien Suffrage In Japan, Miles E. Hawks

Washington International Law Journal

Throughout the world, the dominant suffrage model has been voting rights based on citizenship. However, the trend of globalization, the increase of cross-border migration, and the advent of supranational institutions such as the European Union have prompted many countries to reconsider the relationship between nationality and voting rights. This has resulted in a growing trend, beginning in Europe and spreading most recently to South Korea, of adopting a notion of suffrage based on residency and community rather than citizenship. Japan is currently considering legislation, known as the “Local Suffrage Bill,” which would allow permanent resident aliens (“PRAs”) to vote in …

The Representative Power Of The Shareholders' General Meeting Under Chinese Law, Charles Zhen Qu

Washington International Law Journal

Under China’s company law regime, the power to represent the company resides not in the board of directors but in an individual person called a legal representative (fading daibiaoren) who is a senior officer of the company. The mechanism of legal representative, however, is often rendered ineffective as it is inherently susceptible to abuse. The mechanism becomes dysfunctional when the legal representative is unavailable. The legal representative’s unavailability, especially when the board of directors is also ineffective, raises the question of whether the general meeting has the power to control corporate actions. To answer this question, this Article considers the …

Picking Up On What's Going Underground: Australia Should Exempt Carbon Capture And Geo-Sequestration From Part Iiia Of The Trade Practices Act, Adam M. Andrews

Washington International Law Journal

Australia has identified carbon capture and geo-sequestration (“CCS”) as a partial solution to the problem of global warming. CCS involves capturing carbon dioxide from large point-source emitters, such as power plants, and injecting it deep below ground level for disposal. Australia has not yet enacted CCS-specific regulations. As it stands now, Australia’s third-party access law, Part IIIA of the Trade Practices Act, creates regulatory uncertainty for CCS infrastructure projects and will deter investment in the industry. This regulatory uncertainty results from the ambiguous criteria used to determine whether a piece of infrastructure is appropriate for third-party access. Legislators could address …

Data Privacy And Breach Reporting: Compliance With Various State Laws, G. Martin Bingisser

Washington Journal of Law, Technology & Arts

This Article discusses state laws requiring notification of a party whose personal information is held by a business or government agency when the third party’s security is breached and an unauthorized person accesses the personal information. In the wake of the 2005 ChoicePoint data breach, over half of the states passed legislation requiring that companies notify the affected parties after breach of personal information. Most of the state statutes followed the model set forth by California’s Security Breach Notification Act of 2002. However, significant variations exist between the different statutes, which can create compliance problems. This Article specifically illustrates the …

Applying The Americans With Disabilities Act To Private Websites After National Federation Of The Blind V. Target, Jeffrey Bashaw

Washington Journal of Law, Technology & Arts

The United States District Court for the Northern District of California recently held that websites which are tightly integrated with a physical store must be accessible to the blind, or risk running afoul of the Americans with Disabilities Act (“ADA”). The court in this case, National Federation of the Blind v. Target (“Target”), declined to grant summary judgment for Target, a retailer which operates both physical stores and an e-commerce website, in a suit alleging that Target’s website, Target.com, was discriminating against the blind. This Article will describe the narrow application of Target, which found that websites which are …

Copyright Liability For Those Who Provide The Means Of Infringement: In Light Of The Riaa Lawsuits, Who Is At Risk For The Infringing Acts Of Others?, Karen Horowitz

Washington Journal of Law, Technology & Arts

To date, the Recording Industry Association of America (RIAA) has become increasingly tough on the illegal downloading of copyrighted materials. In light of the increased prevalence of suits against minors or persons with little ability to pay, individuals or institutions that provide the means for the infringing activities, such as guardians or network owners (including, for example, the owner of an unsecured home network or the owner of an Internet café), need to be aware of the potential liability they might face. To place liability upon an individual or institution providing Internet access, a plaintiff could file suit for indirect …

The Evolution Of Intellectual Infrastructure, Peter Lee

Washington Law Review

This Article explores the concept of intellectual infrastructure in intellectual property law. It makes three principal contributions. First, it builds upon prior work to elaborate an infrastructure-based theory of productivity that encompasses trademark, copyright, and patent law. It is well-recognized that intellectual property law promotes productivity through allowing exclusive rights on refined intellectual creations such as source-identifying marks, particularized expressions, and specific inventions. Somewhat less appreciated, these bodies of law also promote productivity through ensuring wide access to productivity-enabling “intellectual infrastructure,” such as generic words, ideas, and natural principles, by making these assets ineligible for exclusive rights. This Article argues …

Abortion, Persuasion, And Emotion: Implications Of Social Science Research On Emotions For Reading Casey, Jeremy A. Blumenthal

Washington Law Review

Although abortion jurisprudence under Planned Parenthood of Southeastern Pennsylvania v. Casey condones State efforts to persuade a woman to forego an abortion in favor of childbirth, the opinion’s “truthful and not misleading” language can be read more broadly than it traditionally has. Specifically, even a truthful message may mislead when it inappropriately takes advantage of emotional influence to bias an individual’s decision away from the decision that would be made in a non-emotional, fully informed state. Drawing on empirical research in the social sciences, I suggest that the sort of emotional information that many states now provide in their “informed …

Washington: The Past And Present Populist State, Hugh D. Spitzer

Chapters in Books

Describes the impact of the late-nineteenth century populist movement on the structure and content of Washington’s constitution and the consequential impact on the state’s political and legal life. Suggests that the anti-business attitudes and skepticism about government prevalent among Washington State residents in the 1880s and 1890s, continues to influence that state's constitution, laws and politics today.

Geographical Indications In China: Why Protect Gis With Both Trademark And Oac-Type Legislation?, Bradley M. Bashaw

Washington International Law Journal

Geographical indications identify the place of origin of a good and signify a distinctive quality, reputation, or other characteristic of the good that is essentially attributable to that geographic source. Besides serving as source-identifiers and guarantees of quality, they are valuable business interests. Consequently, World Trade Organization members are required to afford them protection under the Agreement on Trade Related Aspects of Intellectual Property Rights. Signatories are free to choose the legal means by which they comply with TRIPS. While a few states rely solely on unfair competition law to meet their obligations, most primarily rely on either trademark law …

Money For Nothing, Your Crisis For Free?: A Comparative Analysis Of Consumer Credit Policies For Post-1997 South Korea And Thailand, Jasper Kim, Kemavit Bhangananda

Washington International Law Journal

Both the South Korean and Thai governments encouraged consumer credit card usage to boost consumer spending and reinvigorate the national economy following the 1997-98 Asian financial crisis. Today, almost a decade following the crisis, the authors provide a comparative analysis of how policymakers in both South Korea and Thailand have attempted to regulate the rapid upsurge in consumer credit card debt in their respective economies. This Article also notes some of the benefits and risks of the approaches taken by the South Korean and Thai governments, using as focal points the South Korean government’s Individual Debtor Rehabilitation Act, a personal …

Toward A Legislative Solution To The Growing Hiv/Aids Epidemic In Russia: A Case For Expanded Health Privacy, Carrie C. Gage

Washington International Law Journal

The Russian Federation faces one of the fastest growing rates of Human Immunodeficiency Virus (“HIV”) infection in the world. In 1995, Russia adopted comprehensive legislation addressing HIV and the disease caused by this virus, Acquired Immune Deficiency Syndrome (“AIDS”). The legislation prohibited discrimination based on HIV infection and provided access to medical care for people living with HIV/AIDS. Having recognized that Injecting Drug Users involved in sex work will likely act as a bridge to the general population, the Russian government has recently taken greater steps to curb transmission. Russia has moved to decriminalize the distribution of hypodermic needles for …

Sociolegal Islands?, Daniel H. Foote

Articles

In 1992, in an address at the American Society of Comparative Law annual meeting, Professor Mary Ann Glendon of Harvard Law School bemoaned the state of comparative legal studies in the United States. Many scholars specialized in comparative law, she observed. But at Harvard and other law schools, they were like islands; they conducted research and teaching largely in isolation, having little contact with the core curriculum or other faculty. From the many nods of agreement. it was evident she had voiced a common concern.

Primarily due to increased globalization, the situation has changed. At many law schools comparative perspectives …

Egypt's Supreme Constitutional Court: Managing Constitutional Conflict In An Authoritarian, Aspirationally Islamic State, Clark B. Lombardi

Articles

No abstract provided.

Confusion And Convergence In Consumer Payments: Is Coherence In Error Resolution Appropriate?, Anita Ramasastry

Articles

At present, there are no uniform rules governing retail payment systems in the United States. Checks, credit cards, debit cards, and new types of payment systems—such as stored-value cards and prepaid cards—are governed by different rules and provide consumers with varying protections. In addition, several phenomena may have confused consumers about the type of consumer protections they have when using different payment systems. First, new types of intermediaries have developed—such as online funds transmission and electronic bill presentment and payment—that piggyback on existing payment systems. Second, electronic check conversion systems may convert customer checks into a different payment system—electronic funds …

Teaching Contradiction: A Case Study, Michael Townsend

Articles

One of the most difficult realities confronting first-year law students is that American legal education is simultaneously theoretical and metatheoretical. At one moment students are at the "theoretical" level, by which I mean that they work "within" or "inside" the "black letter" in the context of various factual settings. In the next instant, students move to the "meta-theoretical" level, talking "about" the black letter from a number of "perspectives." That is, they slide between "learning law" and "learning about law." Many students find such transitions to be problematic, bewildering, and even stressful.

One response, for students and teachers alike, is …

“Whites Only Tree,” Hanging Nooses, No Crime?: Limiting The Prosecutorial Veto For Hate Crimes In Louisiana And Across America, Tamara F. Lawson

Articles

News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent …

The Other Famous Marks Doctrine, Xuan-Thao Nguyen

Articles

Debates on protection for famous trademarks often center around state and federal antidilution laws. Both the old Federal Trademark Dilution Act of 1995 and the new Trademark Dilution Revision Act of 2006 have generated many law review articles and numerous symposia. The dilution law focuses on trademarks deemed famous within U.S. boundaries. A debate on protection for famous trademarks today is incomplete without a discussion of the other famous marks doctrine. The other famous marks doctrine recognizes marks famous in other countries without actual use in the country where a user adopts the trademark on similar goods and services.

In …

Justice Scalia’S “Renegade Jurisdiction”: Lessons For Patent Law Reform, Xuan-Thao Nguyen

Articles

Justice Scalia called the Eastern District of Texas ("EDTX") the "renegade jurisdiction." Critics label it the "rocket-docket" for patents. All blame it on the ills of patent litigation, demanding for national reform. This Article challenges the prevailing myths with an empirical quantitative study of more than 27,000 patent cases filed in the last decade and a qualitative study on patent forum shopping. This Article contends that the proposed venue reforms will not prevent litigants from shopping for a favorable forum in which to resolve patent litigations. This Article suggests that instead of the quick fixes vis-à-vis proposed venue reform legislation …

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …

Reasonableness And Objectivity: A Feminist Discourse Of The Fourth Amendment, Dana Raigrodski

Articles

This article suggests that a critical reexamination of the Fourth Amendment and its jurisprudence through feminist lenses can shed new light and add to our understanding of it. These insights, in turn, can and should generate a positive feminist Fourth Amendment jurisprudence—a distinctive feminist voice to be integrated systematically into the law of search and seizure, leading to a transformation of the Fourth Amendment itself. Applying feminist theories to particular issues and normative layers of current Fourth Amendment jurisprudence may help guide us through the more difficult task of imagining a feminist jurisprudence of search and seizure law.

The Influence Of Law On Sea Power Doctrines: The New Maritime Strategy And The Future Of The Global Legal Order, Craig H. Allen

Articles

For much of the 2006-07 academic year, elements of the US Naval War College facilitated an elaborate process designed to provide the intellectual foundations for the Chief of Naval Operations (CNO) and his staff to draw upon in drafting a new maritime strategy. The process brought together experts from throughout the world to take part in workshops, strategic foundation "war" games, conferences and listening sessions.

It was my privilege as the Charles H. Stockton Chair of International Law to serve as legal advisor throughout the process. This article summarizes the contributions of the Naval War College International Law Department (ILD) …

Time Well Spent: An Economic Analysis Of Daylight Saving Time Legislation, Steve P. Calandrillo, Dustin E. Buehler

Articles

Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last thirty years. While congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored.

This Article …

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison

Articles

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of “technological protection measures” in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses.

While hailed as a victory by the software and entertainment industries, the academic and scientific communities ties have been far less enthusiastic. The DMCA’s goal of combating piracy is …

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

Articles

As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce …

Biodiversity, Baking And Boiling, Endangered Species Act Turning Down The Heat, Anna T. Moritz, Kassie R. Siegel, Brendan R. Cummings, William H. Rodgers, Jr.

Articles

Today the Earth faces an extinction event on a scale second only to Earth's largest mass extinction, the Permian-Triassic event, which occurred 250 million years ago. Upwards of 70 percent of the Earth's species could be at risk of extinction with a 3.5°C (6.3°F) rise in temperature, which could occur by the end of this century.

The driver is global warming, caused by anthropogenic greenhouse gas emissions. As such, a rational climate policy is needed immediately to prevent the complete collapse of biodiversity. Yet, the United States—the world's largest cumulative contributor to emissions—is in a state of paralysis when it …

Real Collaborative Context: Opinion Writing And The Appellate Process, Tom Cobb, Sarah Kaltsounis

Articles

Several questions motivated us to begin experimenting with new and more ambitious forms of collaboration in our teaching. We aimed to infuse the classroom with what might be called “real collaborative context.” We looked for instances of collaboration that actually occur in the legal process and asked students to participate in those processes in order to gain a better understanding of the social aspects of legal practice and jurisprudence.

Our hope is that students will experience collaboration not so much as a classroom performance whose main goal is to assist in learning something else that could also be taught in …

Book Review - Uninsured In America: Life And Death In The Land Of Opportunity, Elizabeth Pendo

Book Reviews

Health care reform tops our national policy agenda, ranking second only behind Iraq as the issue that the public wants the 2008 Presidential candidates to address. This is no surprise, as health care spending represents nearly one out of every six dollars spent in the national economy, costs continue to climb, and health insurance is increasingly hard to get, keep, and afford. The numbers are staggering, and numbing. Most of us have heard that 46.5 million people were without insurance for the entire year in 2006, and nearly 89.6 million people were without insurance for some period during 2006 or …

Tipping The Scale To Bring A Balanced Approach: Evidence Disclosure In Chinese International Arbitration, Bryant Yuan Fu Yang, Diane Chen Dai

Washington International Law Journal

Due to the ever-increasing trade between China and the rest of the world, commercial disputes have risen dramatically. Many foreign companies choose to resolve these disputes through arbitration to circumvent the Chinese courts and to retain more autonomy and control. Arbitration itself can also be a problem because rules and laws differ, depending on the jurisdiction and the institution involved. Under China’s civil law tradition, arbitrators are restricted in their ability to force parties to disclose evidence that may be detrimental to their case. Additionally, arbitrators have no authority to obtain evidence from uncooperative third parties. This Article seeks to …

Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto

Washington International Law Journal

Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or “hybrid court,” to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government’s primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that …