Law Commons^™

Table Of Contents

Washington Journal of Environmental Law & Policy

No abstract provided.

“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer

Washington Law Review Online

For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …

2021 Biennial Report

Tech Policy Lab

The Tech Policy Lab at the University of Washington has become a leading source for tech policy research and education and an indispensable resource to local, national, and international policymakers. In its seven-year history, the Lab has built a strong network and increased credibility that allows us to work directly with policymakers, publish research and guides on emerging technologies, and provide opportunities for the public to learn from experts. The last two years found not only our state, but our nation and the world in a time of great uncertainty. American society strives to reconcile centuries of racial and other …

Judicial Discretion Is Advised: The Lack Of Discretionary Appointments Of Counsel For Children In Washington State Dependency Proceedings, Marisa Forthun

Washington Law Review Online

State agencies initiate dependency proceedings when a child is alleged, often due to parental neglect or abuse, to be a dependent of the state. The state must intervene “[w]hen parents do not comply with [Child Protective Services] requirements, or when the state believes the child is at too great a risk to remain at home even if parents were to comply with services.” Dependency proceedings usually take place in juvenile courts and involve the local state agency, the parents, and the child. After the government files a petition alleging circumstances of neglect or abuse, “[t]he court issues temporary orders regarding …

2021: How Gender And Race Affect Justice Now - Final Report, Justice Sheryl Gordon Mccloud, Dana Raigrodski, Sierra Rotakhina, Kelley Amburgey-Richardson

Books

In 1989, the Washington Supreme Court’s Task Force on Gender and Justice in the Courts produced a groundbreaking report on the impact of gender on selected areas of the law. It concluded that gender did affect the availability of justice. We – the Washington State Supreme Court Gender and Justice Commission – are a product of that report and its recommendations. Now, in 2021, we have completed our follow-up study.

Our legal and social science research, our data collection, and our independent pilot projects all led us to the same frustrating conclusion about the effect of gender in Washington State …

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

Articles

Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

Taxing Parents: Welfarist Theories, Shannon Mccormack

Articles

The Internal Revenue Code (the "Code") taxes parents inequitably. Couples with a sole earner are undertaxed compared to couples with dual earners and to single parents. Legal tax scholarship (including my own) has identified the many inequities that result from this sole-earner bias and have called for its elimination. But while these arguments have been sufficient for some, they do remain susceptible to the criticism that they are theoretically incomplete.

That critique might proceed as follows. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, it might be argued, the Code plays …

An Innovative Approach To Movement Lawyering: An Immigrant Rights Case Study, Christine N. Cimini, Doug Smith

Articles

The role of lawyers in social change movements is more important than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. …

The Rise Of Law And The Fall Of Circular 230: Tax Lawyer Professional Standards, 1985-2015, Michael Hatfield

Articles

This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. It opens with consideration of the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions, and then traces the response to that opinion as the response prods the development of the 1985 replacement with its “realistic possibility of success” standard. The Article documents the extensive interaction between Congress, the Treasury Department, and the tax bar over the next 30 years during which penalties are studied and revised …

The End Of Deportation, Angélica Cházaro

Articles

This Article introduces to legal scholarship a new horizon for pro-immigrant scholarship and advocacy: deportation abolition. The ever-present threat of deportation shapes the daily lives of noncitizens. Instead of aiming for a pathway to citizenship, most noncitizens must now contend with dodging the many pathways to banishment. Despite growing threats to immigrant survival, most pro-immigrant scholarship and advocacy that aims to reduce migrant suffering assumes deportation as inevitable. The focus remains on improving individual outcomes by aligning the process of deportation with due process and the rule of law. But considered from the point of view of those facing deportation, …

Presidential Control Of Elections, Lisa Marshall Manheim

Articles

In recent decades, presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment and subordination of expertise. These harms, in …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

#Metoo Innovators: Disrupting The Race And Gender Code By Asian Americans In The Tech Industry, Xuan-Thao Nguyen

Articles

This Article focuses on how Asian American women innovators of the #MeToo generation are disrupting the code of conduct in the tech industry. The code is hard-wired into the tech bro culture of mirrortocracy, resulting in hiring practices that perpetuate existing company demographics and statistics that show that Asian American women face 2.91 times the disadvantage compared to white women. In addition, of all gender and racial groups, Asian American female innovators are the least likely to become executives. This Article identifies and explains how these innovators are the disruptors on several fronts. Utilizing everything from judicial means to traditional …

Bridges To A New Era: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Public Lands, Monte Mills, Martin Nie

Articles

Deep ancestral and traditional connections tie many Native Nations to the federal government’s public lands. The removal of these lands from indigenous control, their acquisition by the federal government, and the federal government’s approach to their management are largely premised upon the erasure or marginalization of those connections. Both physically and legally, Indian tribes have been removed from the landscapes they occupied since time immemorial. Rather than centering, honoring, and using those connections, the current discussion of tribal co-management of federal public lands is mostly bereft of this full legal and historical context.

Compounding these limitations is the considerable discretion …

Promoting Corporate Irresponsibility? Delaware As The Intellectual Property Holding State, Xuan-Thao Nguyen

Articles

This article is about Delaware corporate irresponsibility. Delaware has stealthily become the center of all things intellectual property. As the leader of onshore tax havens since the early 1980s, Delaware attracts multistate corporations to engage in aggressive tax avoidance schemes. Specifically, Delaware has legislatively and methodically attracted the creation of Intellectual Property Holding Companies (IPHCs), enabling companies to avoid paying their share of taxes to sister states on the income generated from the use of Intellectual Property assets. This article traces the rise of Delaware as the intellectual property state and concludes that the benefits Delaware enjoys promote corporate irresponsibility …

The Automated Administrative State: A Crisis Of Legitimacy, Ryan Calo, Danielle Keats Citron

Articles

The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions. In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial …

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

Articles

In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

Attitudes Towards Ip Present Among Seattle Craft Breweries, Zahr K. Said

Articles

No abstract provided.

Antiracism, Reflection, And Professional Identity, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

Articles

Intent on more systematically developing the emerging professional identities of law students, the professional identity formation movement is recasting how we think about legal education. Notably, however, the movement overlooks the structural racism imbedded in American law and legal education. While current models of professional development value diversity and cross-cultural competence, they do not adequately prepare the next generation of legal professionals to engage in the sustained work of interrupting and overthrowing race and racism in the legal profession and system. This article argues that antiracism is essential to the profession’s responsibility to serve justice and therefore key to legal …

Taxing Parents: Welfarist Theories, Shannon Weeks Mccormack

Articles

The Internal Revenue Code (the “Code”) taxes parents inequitably. Couples with a sole earner are under-taxed compared to couples with dual earners or single parents. Previous scholarship has identified these inequities and then argued that this sole earner bias should be eliminated. These arguments, however, have often been incomplete. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, the Code plays favorites all the time. Scholars have traditionally turned to theories of distributive justice when evaluating whether tax preferences are warranted. These theories offer competing visions about the way resources should be …

Protecting Patients From Physicians Who Inflict Harm: New Legal Resources For State Medical Boards, Elizabeth Pendo, Tristan Mcintosh, Heidi A. Walsh, Kari Baldwin, James M. Dubois

Articles

State medical boards (SMBs) protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice. Despite this clear purpose, egregious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported. Even when egregious wrongdoing is reported to SMBs, it is unclear why SMBs sometimes fail to promptly remove seriously offending physicians from practice. Legal and policy tools that are targeted, well-informed, and actionable are urgently needed to help SMBs more effectively protect patients from egregious wrongdoing by physicians.

Past reviews of SMB performance have identified features of SMBs associated with higher rates of severe disciplinary …

The Right To Benefit From Big Data As A Public Resource, Mary D. Fan

Articles

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of …

Public (Ai)Ccomodations, Jevan Hutson, Deepak George, Aj Kidd, Sulaf Al-Saif, Mandy (Meiyun) Ku, Devin Glaser, Devin Glaser

Articles

This Note discusses the use of Al surveillance in places of public accommodations and its implications for civil rights and antidiscrimination law. Part I documents the extensive Al surveillance employed in areas of public accommodation, where American antidiscrimination laws explicitly provide for elevated protection. Part II uses critical race theory to explore how contemporary antidiscrimination law marries two approaches to antidiscrimination in a way that undercuts its own ability to remedy injustice. Part III reveals how antidiscrimination law fails to address issues implicated by Al surveillance in areas of public accommodations, and Part IV proposes a simple solution: abolish it.

Advisors Or Enablers? Bringing Professional Service Providers Into The Guiding Principles’ Fold, Anita Ramasastry

Articles

After a decade, different businesses adhere to the UN Guiding Principles on Business and Human Rights (UNGPs). Some key commercial entities, however, remain largely outside of the UNGPs universe, including professional service providers (PSPs) who are retained by businesses to provide  expert advice and services. These advisors include lawyers, management consultants, architects and others. Some may have specialized units that provide advice on the UNGPs when retained solely for that purpose. But when asked to provide general commercial legal advice, to design a building, or restructure a business, such advisors do not typically appear to apply the UNGPs, to identify …

Two Decades Of Laws And Practice Around Screen Scraping In The Common Law World And Its Open Banking Watershed Moment, Han-Wei Liu

Washington International Law Journal

Screen scraping—a technique using an agent to collect, parse, and organize data from the web in an automated manner—has found countless applications over the past two decades. It is now employed everywhere, from targeted advertising, price aggregation, budgeting apps, website preservation, academic research, and journalism, to name a few. However, this tool has raised enormous controversy in the age of big data. This article takes a comparative law approach to explore two sets of analytical issues in three common law jurisdictions, the United States, the United Kingdom, and Australia. As the first step, this article maps out the trajectory of …

Enforcing U.S. Foreign Policy By Imposing Unilateral Secondary Sanctions: Is Might Right In Public International Law?, Patrick C.R. Terry

Washington International Law Journal

Following the United States’ unilateral withdrawal from the agreement between the five permanent UN Security Council members, the European Union, Germany, and Iran, that intends to stop Iran from acquiring nuclear weapons, the United States has re-imposed and tightened its sanctions against Iran. The United States’ renunciation of the agreement, despite the agreement’s UN Security Council approval and verified Iranian compliance, arguably violated international law. Nevertheless, the United States is attempting to compel the other state parties (and others) to follow its policy on Iran by threatening those states’ companies and business executives with economic or even criminal sanctions to …

The "People's Total War On Covid-19": Urban Pandemic Management Through (Non-)Law In Wuhan, China, Philipp Renninger

Washington International Law Journal

Although COVID-19 was first detected in the People’s Republic of China, the pandemic now appears contained there. Western and Chinese media attribute this apparent success to the central level of the Chinese state and the Communist Party. However, this article reveals that local entities provided critical contributions to China’s COVID-19 management, particularly in the pandemic’s first epicenter: Wuhan city in Hubei province. Chinese cities like Wuhan can fight public health emergencies through legal and nonlegal instruments. Although Wuhan had prepared for possible pandemics, its existing plans, institutions, and warning systems initially failed against COVID-19. The city did not contain the …

Legal Complications Of Repatriation At The British Museum, Hannah R. Godwin

Washington International Law Journal

The British Museum has been the target of criticism around the world for its failure to repatriate controversial cultural property to their respective countries of origin. In 1753, a private collector left his collection to Great Britain if it agreed to build a public museum and designate a Board of Trustees whose duty was to protect the collection for the public. Statutorily incorporating the collector’s intent, Parliament passed legislation binding the Board of Trustees to abide by certain principles, including preserving the collection and prohibiting disposal of objects, except in very few circumstances. As such, the Museum is administrated through …

Guns-For-Hire: Chinese Mercenaries On The 21st Century Silk Road, Carl H. Peterson Iv

Washington International Law Journal

There has been an increased global use of private military contractors (PMCs) since the large-scale American use of them in the wars in Afghanistan and Iraq. This has included an increase in Russian and now Chinese PMCs. As China continues to develop its Belt and Road Initiative (BRI), it is likely that the world will see an increase in the number of Chinese PMCs used to protect these projects. In this event it is important to bring Chinese PMCs into the PMC industry’s most effective private regulatory bodies, as these bodies are often more effective at ensuring ethical PMC conduct …

Commercializing Cannabis: Confronting The Challenges And Uncertainty Of Trademark And Trade Secret Protection For Cannabis-Related Businesses, John Mixon

Washington Journal of Law, Technology & Arts

Over the last couple of decades, society has become more accepting of recreational cannabis and an ever-growing number of states have passed pro-cannabis legislation. With this change, the cannabis industry has, to some extent, exploded into a booming enterprise in states that have legalized marijuana. Nonetheless, cannabis' status as a Schedule I banned substance under the Controlled Substances Act of 1970 remains unchanged. As a result, businesses in the cannabis industry face the unique challenge of having to toe the line between "legally" operating under state law and violating federal law, which trumps state law. One particular situation in which …