Law Commons^™

Emerging Privacy Legislation In The International Landscape: Strategy And Analysis For Compliance, Jonathan Mcgruer

Washington Journal of Law, Technology & Arts

Big data is a part of our daily reality; consumers are constantly making decisions that reflect their personal preferences, resulting in valuable personal data. Facial recognition and other emerging technologies have raised privacy concerns due to the increased efficiency and scope which businesses and governments can use consumer data. With the European Union’s General Data Protection Regulation ushering in a new age of data privacy regulation, international jurisdictions have begun implementing comparable comprehensive legislation, affecting businesses globally. This Article examines the similarities between emerging U.S. state data privacy laws and the General Data Protection Regulation, with suggestions for businesses implicated …

Public Performance? How Let's Plays And Livestreams May Be Escaping The Reach Of Traditional Copyright Law, Brianna K. Loder

Washington Journal of Law, Technology & Arts

Let’s Plays and livestreams are popular online videos of videogames being played. The Copyright Act protects videogames as audiovisual works, and therefore provides videogames with the exclusive right of public performance. The Supreme Court issued a ruling in ABC, Inc. v. Aereo, Inc. which clarified that performances in an online setting can be public even if the individuals receiving the content are doing so privately. However, the Court’s holding did not provide guidance on who is a performer, and therefore is liable for the infringing conduct, beyond the specific context by which Aereo transmitted content to its subscribers. Let’s Plays …

Pseudo-Gambling And Whaling: How Loot Boxes Pray On Vulnerable Populations And How To Curtail Future Predatory Behavior, Alexander Mann

Washington Journal of Law, Technology & Arts

The video game industry has blossomed from a niche hobby into a mainstream cultural industry, outpacing global box office sales in annual revenue. Yet the price of a video game has barely increased since the industry’s inception, and the current standard price point of sixty dollars has survived for over a decade. Competitive market forces drive companies to invest ever more time and money into creating increasingly complex software in order to remain on the cutting edge of graphics and design, while simultaneously increasing revenue. Thus, video game developers and publishers have developed a multitude of alternative money- making services …

Externalities And The Common Owner, Madison Condon

Washington Law Review

Due to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive incentives that arise when a firm’s largest shareholders own similarly sized stakes in the firm’s industry competitors. This Article expands the consideration of the effects of common ownership from the industry level to the market portfolio level and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change related activism of institutional investors, who have applied coordinated shareholder power …

Candidate Privacy, Rebecca Green

Washington Law Review

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers’ concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a …

The Story Of A Class: Uses Of Narrative In Public Interest Class Actions Before Certification, Anne E. Ralph

Washington Law Review

When litigants in public interest class actions tell their stories, the narratives can advance the law and influence public debate. But before class members’ stories can vindicate civil rights on the merits, plaintiffs must overcome the hurdle of class certification.

For decades, obtaining class certification under Federal Rule of Civil Procedure 23 was not a significant challenge for plaintiffs seeking to litigate as a class. But recent restrictive procedural developments—including heightened standards for class certification—threaten the powerful stories that can be told through public interest class actions.

Missing in the critical analysis of class action jurisprudence is any discussion of …

The Substantial Impact Approach: Reviewing Policy Statements In Light Of Apa Finality, Emily Parsons

Washington Law Review

Federal agencies engage in a wide range of non-binding action, issuing guidance documents such as policy statements and interpretive rules. Although these guidance documents may have a substantial impact on industries or members of the public, courts often refuse to review their substance. The Administrative Procedure Act requires agency action to be “final” before courts can review it. The D.C. Circuit and the Ninth Circuit have taken conflicting and often messy approaches in determining whether interpretive rules and policy statements are final and thus reviewable. This Comment proposes a new approach: the substantial impact approach. Under this approach—repurposed from a …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney K. Cross

Washington Law Review

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts—even acts that carry low to no risk of infection—can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

The Trauma Of Trump's Family Separation And Child Detention Actions: A Children's Rights Perspective, Jonathan Todres, Daniela Villamizar Fink

Washington Law Review

In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And subsequent reports—from both the government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention …

Incarcerated Parents And Child Welfare In Washington, Sayer Rippey

Washington Law Review

From 2006 to 2016, 32,000 incarcerated parents in the United States permanently lost their parental rights without ever being accused of child abuse.1 Of these, approximately 5,000 lost their parental rights solely because of their incarceration.2 This “family separation crisis”3 followed on the heels of the Adoption and Safe Families Act (ASFA), a federal law which directs states to initiate parental termination proceedings against parents when their children have been in foster care for fifteen of the last twenty-two months.4 Some states, including Washington, attempted to mitigate ASFA’s devastating impact on incarcerated parents by adding exceptions for incarceration.5 This Comment …

Privacy As Safety, A. Michael Froomkin, Zak Colangelo

Washington Law Review

The idea that privacy makes you safer is unjustly neglected: public officials emphasize the dangers of privacy while contemporary privacy theorists acknowledge that privacy may have safety implications but hardly dwell on the point. We argue that this lack of emphasis is a substantive and strategic error and seek to rectify it. This refocusing is particularly timely given the proliferation of new and invasive technologies for the home and for consumer use more generally, not to mention surveillance technologies such as so-called smart cities.

Indeed, we argue—perhaps for the first time in modern conversations about privacy—that in many cases privacy …

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Washington Law Review

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of …

Limitations Of Washington Evidence Rule 413, Sarah Desautels

Washington Law Review

This Comment analyzes Washington State Evidence Rule 413 (ER 413). ER 413 renders evidence of the immigration status of criminal defendants, civil plaintiffs, and witnesses presumptively inadmissible at trial. The Washington State Supreme Court adopted ER413 in September 2018. It is the first of its kind in the nation. ER 413 provides a clear, uniform rule limiting the use of immigration evidence, an area where prior caselaw had created uncertainty. However, ER 413 falls short of its goal of promoting access to justice and protecting immigrants from jury bias without a supporting system that addresses (1) the dangers of implicit …

The Liberty Impact Of Gender, Kingsly Alec Mcconnell

Washington Law Review

Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise …

The Birth Of Fertility Fraud: How To Protect Washingtonians, Sarah Chicoine

Washington Law Review Online

Doctors in multiple states have been accused of using their own sperm to impregnate patients without the patient’s consent. Because most states do not have laws prohibiting fertility doctors from using their own sperm to impregnate their patients, families have not been able to seek meaningful legal remedies. State legislatures enacted new fertility fraud laws to deter, criminalize, and provide a legal civil cause of action to those harmed by these actions—but only after these allegations came to light. If the Washington State Legislature creates a law before any similar allegations come to light in Washington, those patients harmed in …

Designing Tech Policy: Instructional Case Studies For Technologists And Policymakers, David G. Hendry

Tech Policy Lab

The UW Tech Policy Instructional Case Studies position students to consider the deeply interactional processes of human values and technology. Within pedagogical bounds, students engage both technical and policy elements and develop design solutions. For instructors, the case studies have been written and formatted so that they can be appropriated for varied educational settings.

Each of the tech policy instructional case studies (see Table 1) follow this three-part pattern:

1. Background. The case studies begin with information on the technology and social context at hand. This introduces both the students and the instructor to the technical problem and the social …

Letter From Jeffery M. Kadet To Technical Director, Financial Accounting Standards Board (Feb. 7, 2020) On Income Taxes (Topic 740) Proposed Accounting Standards Update (Revised), Jeffery M. Kadet

Articles

There is a critical need to expand required disclosures for multinational groups (MNCs) under generally accepted accounting principles. In particular, to have any hope of assessing the potential for tax risk and management’s relative aggressiveness in managing its tax obligations to governments around the world, all stakeholders urgently need the information that country-bycountry reporting (CbCR) and the other suggestions made in this letter would provide. As is set out below, many MNCs carry material tax risks from their adoption over the past several decades of increasingly aggressive and sometimes questionable profit-shifting structures that seriously divorce legal form and reality.

This …

State Action And Gender (In)Equality: The Untapped Power Of Washington's Equal Rights Amendment, Maria Yvonne Hodgins

Washington Law Review Online

Washington’s Equal Rights Amendment (ERA) is a powerful legal tool. Its sweeping, protective language triggers the application of an absolute standard of review—a level of review even higher than strict scrutiny. Yet the ERA is underutilized by litigants seeking protection against gender-based discrimination. This may be due to the inconsistencies in the Washington State Supreme Court’s state action jurisprudence. Though the ERA includes the phrasing “under the law,” its plain language does not necessarily support a finding of a state action requirement. The state action doctrine is grounded in federalism and separation of power concerns that are not present at …

Accounting For Environmental Standards, Malori M. Mcgill

Washington Law Review Online

A meaningful percentage of the regulation that companies in the United States must follow concerns two distinct topics: accounting and the environment. The values underlying the regulatory framework of securities and the environment are distinct, but they are not wholly opposite. This Comment responds to growing trends of private governance in the area of environmental regulation. Besides federal regulation, a significant portion of environmental regulation touching U.S. companies today remains sourced from and enforced by private standard-setters. Federal accounting regulations are now governed by the Financial Accounting Standards Board (FASB)––a private entity recognized by the Securities and Exchange Commission (SEC)––but …

Science Or Status Quo? Disregard For A Defendant's Mental Illness In Tort Suits, Gabrielle Lindquist

Washington Law Review Online

Mental illness is almost never considered when courts determine whether a defendant is liable for a tort. Nearly every United States jurisdiction—Washington state included—declines to offer a modified “reasonable person” standard for negligent tort defendants with mental illnesses or any form of mental illness-based affirmative defense for intentional tort defendants. There is much debate about whether tort law should evolve to accommodate defendants with mental illnesses. This Comment seeks to dive deeper into why that debate persists.

Although there are numerous justifications for this current state of tort law, the most common rationalizations given are twofold. First, that the primary …

Challenging Presidential Tweets, Mallory Barnes-Ohlson

Washington Law Review Online

Presidents have tried to control agency behavior for decades. The rise of social media gave the President new and innovative tools for controlling agency behavior. As President Obama demonstrated during his time in office, social media became a platform through which the President could communicate to his constituents, align himself with agency actions he supported, and urge agencies to enact policies he favored. After he was elected in November of 2016, President Donald Trump continued his predecessor’s use of social media to engage with both agencies and the public. Different from his predecessor, however, President Trump and his presidential orders …

Registering A Home When Homeless: A Case For Invalidating Washington’S Sex Offender Registration Statute, Sarah Kohan

Washington Law Review Online

Sex offenders experiencing homelessness face unique challenges in Washington that sex offenders with housing do not. When individuals commit a sex offense, they are required to register as a sex offender by providing the state with a current home address. But what happens if an offender has no home? Currently, Washington’s sex offender registration statute forces sex offenders experiencing homelessness to appear in person weekly at the county sheriff’s office to meet registration requirements. Failing to appear for even one week can result in a charge for failure-to-register as a sex offender. In contrast, the statute requires non-homeless sex offenders …

Sex-Based Discrimination In Health Care Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

Articles

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the …

The Role Of Law And Policy In Achieving Healthy People’S Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa I. Iezzoni

Articles

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

Justice System Reform And Internationalization, Daniel H. Foote

Articles

As discussant. normally my role would be to offer trenchant and perceptive critiques of each of the three main reports. those by Professors Takamizawa. Matsuo. and SuamL Those reports are broad in scope, both geographical and historical; each report is outstanding: and each provides much food for thought. Yet even if time and space permitted, I myself lack sufficient knowledge regarding China. Southeast Asia and Europe to provide a thorough critique. Instead. in this essay I will shift the focus back to Japan and examine various respects in which the justice system reforms have sought to promote internationalization.

Letter From Jeffery M. Kadet And David L. Koontz To Internal Revenue Service (Jan. 16, 2020) On Proposed Regulations Reg-100956-19, Jeffery M. Kadet, David L. Koontz

Articles

No abstract provided.

Deadly Drones? Why Faa Regulations Miss The Mark On Drone Safety, Steve Calandrillo, Jason Oh, Ari Webb

Articles

A rapidly growing commercial drone industry has prompted the introduction of numerous regulations governing American airspace. Congress has tasked the Federal Aviation Administration (FAA) with “developing plans for the use of the navigable airspace to ensure the safety of aircraft and the efficient use” of American skies. While well-intended, the FAA has departed from Congressional will by imposing an excessive regulatory regime that threatens to stifle drone technology and innovation. In fact, many FAA regulations fail to address the very problem they seek to fix, namely the safety of our airspace. The unfortunate result is that myriad scientific and pragmatic …

A Case Study: Effectively Connected Income, Jeffery M. Kadet, David L. Koontz

Articles

In this report, Kadet and Koontz continue their series of articles on various aspects of applying effectively connected income taxation to multinationals by creating an ECI case study using the facts provided in a Hong Kong decision concerning an unidentified multinational that is clearly based in the United States.

Presidential Control Over Disputed Elections, Lisa Marshall Manheim

Articles

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Cracks In The Foundation, Lisa Marshall Manheim

Articles

This essay is part of a symposium on Richard L. Hasen’s book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020). It discusses how intentional voter suppression runs contrary to a universalist conception of voting and exacerbates the other major threats facing American elections.