Law Commons^™

Client Confidentiality, Professional Privilege And Online Communication: Potential Implications Of The Barton Decision, Kelcey Nichols

Washington Journal of Law, Technology & Arts

In a recent case of first impression, Barton v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit held that an online communication involving an online intake form filled out by prospective clients gave rise to an attorney-client relationship governed by the duty of confidentiality and subject to attorney-client-privilege. The Ninth Circuit’s multi-factored analysis suggests a modified framework for evaluating when the duty of confidentiality and attorney-client relationship can be formed through online communications. This Article discusses Barton’s implications for attorneys and law firms that communicate with clients and …

E-Contract Formation: U.S. And Eu Perspectives, Sylvia Mercado Kierkegaard

Washington Journal of Law, Technology & Arts

The United States (“U.S.”) and the European Union (“EU”) offer contrasting approaches to contract formation in Cyberspace. Two foci can be identified with EU law: (1) consumer protection and (2) market harmonisation. The American approach, however, is characterized by self-regulation and economic rationale. This Article examines and compares the EU and U.S. regulatory approaches to electronic contracting.

Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote

Washington Law Review

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …

Caveat Emptor: How Cafta Imperils State Recycled Paper Procurement Preferences, Ben Stafford

Washington Law Review

The federal government's use of its control over foreign commerce increasingly conflicts with powers reserved to the states. Article 9 of the Central American Free Trade Agreement (CAFTA) establishes requirements by which government agencies must abide in procuring goods and services. Specifically, CAFTA Article 9 establishes that procuring entities must afford "national treatment" to goods imported from other CAFTA nations by treating such foreign goods at least as favorably as similar domestic goods. The federal government reached an agreement wherein a number of states became bound by these rules, including fourteen states with state statutes related to governmental procurement preferences …

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Furman Fundamentals, Corinna Barrett Lain

Washington Law Review

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong

Washington Law Review

Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by …

New Word, Same Problems: Entry, Arrival, And The One-Year Deadline For Asylum Seekers, Joanna R. Mareth

Washington Law Review

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imposed a one-year filing deadline on all applications for asylum. Under this law, an alien applying for asylum bears the burden of showing that he or she applied for asylum within one year of arrival into the United States. The word "arrival" is not defined in immigration law, but the Second Circuit recently held that not every border crossing into the country is an "arrival" for purposes of the asylum filing deadline. The court's reasoning was reminiscent of the U.S. Supreme Court's 1963 decision in Rosenberg v. Fleuti, …

New Word, Same Problems: Entry, Arrival, And The One-Year Deadline For Asylum Seekers, Joanna R. Mareth

Washington Law Review

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imposed a one-year filing deadline on all applications for asylum. Under this law, an alien applying for asylum bears the burden of showing that he or she applied for asylum within one year of arrival into the United States. The word "arrival" is not defined in immigration law, but the Second Circuit recently held that not every border crossing into the country is an "arrival" for purposes of the asylum filing deadline. The court's reasoning was reminiscent of the U.S. Supreme Court's 1963 decision in Rosenberg v. Fleuti, …

Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote

Washington Law Review

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …

Furman Fundamentals, Corinna Barrett Lain

Washington Law Review

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

Caveat Emptor: How Cafta Imperils State Recycled Paper Procurement Preferences, Ben Stafford

Washington Law Review

The federal government's use of its control over foreign commerce increasingly conflicts with powers reserved to the states. Article 9 of the Central American Free Trade Agreement (CAFTA) establishes requirements by which government agencies must abide in procuring goods and services. Specifically, CAFTA Article 9 establishes that procuring entities must afford "national treatment" to goods imported from other CAFTA nations by treating such foreign goods at least as favorably as similar domestic goods. The federal government reached an agreement wherein a number of states became bound by these rules, including fourteen states with state statutes related to governmental procurement preferences …

Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong

Washington Law Review

Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by …

Perverse Main Bank Rescue In The Lost Decade: Proof That Unique Institutional Incentives Drive Japanese Corporate Governance, Dan W. Puchniak

Washington International Law Journal

Two of the most prominent Japanese corporate governance scholars, Professors Miwa and Ramseyer (“M&R”), have recently published numerous articles and a book setting out their contrarian free-market theory of Japanese corporate governance. According to their theory, contemporary Japanese corporate governance is, and always has been, driven by free-market forces and not government incentives. M&R’s theory is enchanting in its simplicity and universality, as it uses standard economic theory to provide a single, and seemingly logical, solution to a myriad of complex legal, institutional, historical and cultural conundrums that have challenged observers of Japanese corporate governance for decades. Unfortunately, M&R’s theory …

The Persecutor Bar In U.S. Immigration Law: Toward A More Nuanced Understanding Of Modern "Persecution" In The Case Of Forced Abortion And Female Genital Cutting, Lori K. Walls

Washington International Law Journal

Congress installed the persecutor bar to asylum seekers in the United States thirty years after the end of World War II to facilitate the deportation of Nazi war criminals. The persecutor bar’s legal evolution was rooted in part in the practical difficulties of prosecuting crimes committed in the distant past. The bar also is based on the notion, problematic in modern contexts, that persecution has a corollary persecutor. The persecutor bar does not map well to the messy political, cultural, and practical realities that give rise to modern “persecutors.” Ten years ago, for example, forces from opposite ends of the …

Introduction To The New Company Law Of The People's Republic Of China, Steven M. Dickinson

Washington International Law Journal

This article briefly analyzes the new Company Law and its effects on doing business in China. After a brief history of the previous version of the law, this article examines the many changes to management and articles of association, capital requirements, limited liability companies, access to corporate information, piercing the corporate veil, third party loans, and legal remedies for improper actions. It goes on to look at the impact on the structure of foreign investments and discusses the likely effects of the new law in actual practice.

Judgment On Unfair Competition Dispute Between Baidu Online Network Technology (Beijing) Ltd. Co. And Beijing 3721 Technology Ltd. Co., Pengyue Li

Washington International Law Journal

On October 20, 2003, Baidu Online Network Technology (Beijing) Ltd., Co. (“Baidu”), a Nasdaq-listed company known as the “Google of China,” filed a suit against its competitor Beijing 3721 Technology Ltd. Co. (“3721”) in Beijing Chaoyang District Court for copyright infringement and unfair competition. The case is regarded as China’s first copyright-infringement dispute involving website search-engine technology. Legal experts, the Chinese media, and the Supreme Court of China have paid close attention to the case, especially as it is related to China’s ongoing legislative effort to improve protection of intellectual property. The translation below is the appellate opinion in this …

Controlling Business Method Patents: How The Japanese Standard For Patenting Software Could Bring Reasonable Limitations To Business Method Patents In The United States, James S. Sfekas

Washington International Law Journal

In recent years, the United States has expanded the scope of subject matter that can be patented. The Court of Appeals for the Federal Circuit has evolved a standard that allows inventors to patent software as long as it produces a useful and tangible result. Japan has also expanded the scope of patentable subject matter, but in a more limited fashion. Under the Japanese standard, the Japan Patent Office will only grant a patent to software inventions that apply a law of nature. The U.S. standard is too generous in allowing patents on software and business methods. Business method patents, …

Establishing Secondary Liability With A Higher Degree Of Culpability: Redefining Chinese Internet Copyright Law To Encourage Technology Development, Yiman Zhang

Washington International Law Journal

While enjoying the tremendous economic benefit brought by the Internet to the nation, China has been attempting to update its intellectual property law to address online copyright infringement issues. The current legal framework, which premises copyright liability upon a direct infringement and joint liability theory, unfortunately has produced considerable ambiguity both within the judiciary and the affected industries. As shown in recent cases, the theory of joint liability, in addition to the broad scope of Chinese copyright law, has been particularly troublesome for China’s technology industry. Given China’s priority in technology innovation, its current copyright law has too low a …

Ending The Silence: Thai H-2a Workers, Recruitment Fees, And The Fair Labor Standards Act, Andrea L. Schmitt

Washington International Law Journal

Increasing numbers of Thai workers are coming to the United States using “H-2A” temporary agricultural worker visas. Compared with their Latin American counterparts, Thai H-2A workers are more vulnerable to poor working conditions and other abusive employment practices for two reasons. First, the workers often pay large recruitment fees to labor recruiters in Thailand, and they therefore arrive with a much weightier debt burden. This debt, combined with conditions inherent in the H-2A system, puts intense pressure on workers to remain silent. Second, Thai workers are more culturally and linguistically isolated in rural U.S. communities than their Latin American counterparts. …

Customary International Humanitarian Law And Multinational Military Operations In Malaysia, Drew R. Atkins

Washington International Law Journal

The International Committee of the Red Cross published a study in 2005 identifying rules of customary international law applicable to armed conflict and theoretically binding on all nations. This study found that customary state practice has come to encompass and in some cases exceed protections contained in the Additional Protocols of 1977 to the Geneva Conventions of 1949, regardless of their applicability to a given conflict. These findings may impact the domestic law enforcement practices of states not parties to Additional Protocol II, which regulates non-international armed conflict. Furthermore, the study may have indirect effects on military cooperation and legal …

The Marriage Amendment Act: Can Australia Prohibit Same-Sex Marriage?, Katy A. King

Washington International Law Journal

Both the United States and Australia have federal legislation, the Defense of Marriage Act and the Marriage Amendment Act 2004, that defines marriage as a union between a man and a woman. Australia has an express provision in its constitution granting Parliament the authority to pass laws on the subject of marriage. The United States, however, has no such constitutional provision. Consequently, Australia’s express constitutional provision may lead the High Court of Australia to rule that the Marriage Amendment Act 2004 is constitutional, which would likely preclude Australia’s states and territories from passing local same-sex marriage acts. This is fundamentally …

The Health Care Choice Act: The Individual Insurance Market And The Politics Of "Choice", Elizabeth Pendo

Articles

The Health Care Choice Act of 2005 (HCCA) aims to reform perceived problems in the individual market, and is touted as part of the solution to the problem of the uninsured. It purports to allow individuals who are not eligible for or cannot afford group coverage to purchase an individual policy in and from any state. If passed, the HCCA would allow health insurers to offer individual policies of insurance from any state without being required to comply with the laws of the insured's own state. Its proponents claim that it would lower the cost of individual health insurance by …

Recent Reforms To The Japanese Judiciary: Real Change Or Mere Appearance?, Daniel H. Foote

Articles

In June 2001, the Justice System Reform Council ("Reform Council" or "Council") issued its final report. The Council's recommendations included several proposed reforms to the judiciary, intended to insure the judiciary would "meet the expectations of the people." This essay examines a number of those recommendations and the resulting reforms.

The single reform to the judiciary that has received the most publicity is the introduction of the saiban'in system, through which ordinary citizens will participate directly in judging serious crim:inal cases and thus will have the opportunity to express their views directly in the deliberation of those cases. That system, …

Collateralizing Intellectual Property, Xuan-Thao Nguyen

Articles

This Article identifies and critiques the collateralization of intellectual property, revealing the complexity of intersecting secured transaction law, namely Article 9 of the Uniform Commercial Code, and doctrinal intellectual property laws such as patent law, copyright law, and trademark law. The inquiry challenges the silence surrounding the pervasive use of intellectual property as collateral in secured financing and suggests changes to the existing framework on secured financing law.

The Article proceeds as follows: Part II discusses the normative intellectual property rights for patents, copyrights, and trademarks and how such rights are utilized as corporate assets. Part III describes different forms …

Pro Se Executors—Unauthorized Practice Of Law, Or Not?, Michael Hatfield

Articles

This Article clarifies why under Texas law an individual named as executor in a will has the right to offer the will for probate and otherwise appear in a probate court without hiring a lawyer. This Article first provides an overview of the independent administration provisions of the Texas probate code before reviewing the unauthorized practice of law prohibition and the pro se exception. After establishing that executors qualify for the pro se exception in Texas because executors appearing in court are exercising their own management rights—rather than the rights of "the estate" or the beneficiaries—the Article explores suggestions of …

Alaska Native Rights, Statehood, And Unfinished Business, Robert T. Anderson

Articles

Alaska Native aboriginal rights to land and associated resources were never dealt with in a comprehensive fashion until 1971, when Congress passed the Alaska Native Lands Claims Settlement Act (ANILCA). Although general principles of federal Indian law provided strong support for the proposition that Alaska's Native people held aboriginal title to much of the new state, the Alaska Statehood Act itself carefully disclaimed any effect on aboriginal title. This approach was in keeping with the Congress's past dealings with Alaska Native property rights. This article outlines the history of Alaska Native aboriginal rights through the Statehood Act along with their …

The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues, Robert Aronson, Jacqueline Mcmurtrie

Articles

This essay first addresses the ethical and evidentiary standards for the emerging use of high-tech computer-generated animations and computer-assisted closing arguments. Next, this essay considers the same questions within the context of forensic DNA evidence. Third, this essay considers the ethics of prosecutors' use of such evidence and the consequences for the misuse of this evidence. Finally, this essay suggests remedies to ethical problems facing prosecutors in their use of this kind of evidence.

Rebuilding The Profession: Recommendations For Librarians Interested In Becoming Academic Law Library Directors, Barbara A. Bintliff, Laura N. Gasaway, Penny A. Hazelton, Frank G. Houdek, Janis L. Johnston, Martha Dragich Pearson, Charles Ten Brink, Michelle Wu

Articles

Based on papers presented at a 2005 workshop for individuals interested in becoming academic law library directors, this article begins by exploring the duties of academic director jobs—administrative skills and faculty responsibilities—before examining how to build credentials in preparation for such jobs. It concludes by focusing on the skills and knowledge needed to interview for director jobs.