Law Commons^™

From Winans To Wallahee: Treaties, The Washington State Supreme Court, And The Pursuit Of A More Just Rule Of Law, Monte Mills

Washington Law Review

The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well …

Who Counts As A "Reasonable Employee"? The Third Circuit's Bungling Of Section 8(A)(1) Violations, Ben Milstein

Washington Law Review

The National Labor Relations Act (NLRA) protects private employees’ right to unionize and collectively bargain with their employers. Section 7 of the NLRA guarantees employees the right to self-organize labor unions, while section 8 outlines numerous unfair labor practices. Specifically, section 8(a)(1) bans employer interference, coercion, or restraint of any section 7 rights. In a 2022 case, FDRLST Media v. NLRB, the Third Circuit Court of Appeals reversed a National Labor Relations Board (NLRB) finding that FDRLST Media’s executive officer’s tweet constituted a section 8(a)(1) violation. This Comment examines the history of section 8(a)(1) violations, specifically discussing the widely …

The Reasonability Rule For Medical Damages In Tort: In Defense Of Chargemaster Recovery, Avery E. Tunstill

Washington Law Review

In a personal injury suit, Washington law requires the plaintiff to prove that their medical costs are reasonable to recover damages for those costs. Tort reform proponents attempt to use this reasonability rule to limit tort damages awards. They argue that a plaintiff should only recover a portion of a hospital’s bill because most people do not pay a hospital’s sticker price—or the “chargemaster rate”—for medical care. Some reformers argue that recovery rates should instead be based on a set figure. Others argue in favor of eliminating the collateral source rule, which prohibits juries from reducing tort damages awards in …

Shielding Freedoms: State Noncooperation In Hunts For Evidence And People, Mary D. Fan

Washington Law Review

The nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care. Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking …

Opioids And Oblivion: Corporate Bankruptcy And The Erosion Of Accountability In Big Pharma, Ying Yuan

Washington Law Review

In June 2024, the United States Supreme Court ruled in Harrington v. Purdue Pharma that nonconsensual releases for nondebtors are unconstitutional. The decision marked a key development in mass tort litigation involving Purdue Pharma, the company at the center of the opioid crisis. The Sackler family sought to use Purdue’s bankruptcy proceedings to shield themselves from liability, but the Court’s ruling invalidated the use of nondebtor releases to protect third parties from claims without the full consent of affected parties. While the ruling strengthens creditor protections, it creates uncertainty regarding how mass tort bankruptcies can efficiently compensate victims, particularly in …

Self-Determination Through Children's Rights: Resisting The Paradoxical Pretext Of Parents' Rights Legislation, Jeremiah Chin

Washington Law Review

Washington state law balances the interests of parents and the state in education, healthcare, and the general wellbeing of children. Despite the fact that children are at the center of emerging controversies, children’s rights are rarely discussed in state legislation debating the obligations and relationships between the state of Washington and parents. In education, for example, RCW 28A.605.005 finds “[p]arents are the primary stakeholders in their children’s upbringing.” While this may be true relative to the state, it overlooks the fact that children are the primary actors, agents, and rights bearers in their own personhood. This Article therefore considers ongoing …

From The Bench To The Feed: Conflict Between Public Official Accounts And The First Amendment, Betty Yu

Washington Law Review

Imagine one day waking up, opening Facebook, and discovering that the official White House account blocked you because you left a comment expressing a viewpoint. In this case, your First Amendment right to free speech would most likely be violated. However, what happens if your local official blocks you or deletes your comments? Are your First Amendment rights violated? Well, it depends.

Historically, public officials have used public forums such as town halls to meet with citizens and answer questions. However, as social media platforms like X and Facebook have become increasingly crucial tools for communication, the distinction between personal …

Getting Our House In Order: Mapping The Unconstitutional Conditions Doctrine Onto Washington’S Inclusionary Zoning Policies After Sheetz V. County Of El Dorado, John “Jack” Haskins

Washington Law Review

The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County of El Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary …

“That’S Not My Name”: The Linguistic Violence Of Misnaming Parties In Court Proceedings, Robert S. Chang, Cecily C. Hazelrigg, Linda Cj Lee

Washington Law Review

This Article calls attention to the harms done when parties are misnamed in legal proceedings. Misnaming, which many might initially consider trivial, is properly understood as a form of linguistic violence that can inflict dignitary harms as well as have material consequences. Misnaming takes on a different valence when it is done by the state. This Article focuses on the misnaming of Indigenous, Asian, and Latine people, beginning first with the way misnaming is done by the administrative state. The authors then discuss misnaming as it has operated in legal proceedings, providing both historical and contemporary examples from federal and …

A State Constitutional Challenge To Washington’S Denial Of Minimum Wage To Incarcerated Workers, Cailin Dahlin

Washington Law Review

This Comment challenges as unconstitutional Washington’s exemption of incarcerated individuals from the state Minimum Wage Act. Incarcerated people in Washington, unprotected by minimum wage guarantees, earn low wages in state-run inmate work programs. This statutory carveout is contrary to the rehabilitative purpose of Washington’s prisons because it impedes incarcerated people’s ability to afford necessities, participate in rehabilitative programs, and reintegrate into society. This exemption is unconstitutional under the state’s cruel punishment clause, because it is disproportionately cruel punishment and an excessive fine that incarcerated workers cannot afford. The exemption is also unconstitutional under the state’s privileges and immunities clause, because …

Forbidden Knowledge: School Libraries, The First Amendment, And The Right To Receive Information, Natalie H. Berg

Washington Law Review

In the past five years, numerous Republican legislators and conservative parental groups have aggressively pushed to restrict sexual content in public schools. Many school districts have adopted policies that limit what topics are covered in class, and several statewide laws have legitimized and mandated these policies. Consequently, books featuring queer themes or characters are rapidly disappearing from public school libraries. These library restrictions, or book bans, have sparked substantial controversy and litigation.

This Comment examines state laws restricting public school libraries in Texas, Florida, and Iowa, arguing that these library restrictions violate the First Amendment on multiple grounds. Additionally, it …

Making Youth Matter, Kimberly Ambrose

Washington Law Review

Gun violence is the leading cause of death for children and adolescents in the United States. The harm caused by this public health crisis falls disproportionately on Black and Brown youth. While it is broadly accepted that children are less blameworthy than adults for their criminal behavior, what does this mean when they have access to and use guns? The Supreme Court held that youth matters when juveniles face life without parole sentences because children are different from adults—they fail to appreciate risks and consequences; are more impulsive; more susceptible to peer and family influence; less able to remove themselves …

Another Broken Promise: The Mmiwg2s Crisis And The Violation Of The Federal Indian Trust Obligation, Marley Forest

Washington Law Review

Indigenous Women, Girls, and Two-Spirit people go missing and are murdered at rates nearly ten times the national average in the United States. This disproportionate epidemic of violence has been labeled the Missing and Murdered Indigenous Women, Girls, and Two-Spirit (MMIWG2S) crisis. Several factors exacerbate this crisis. First, European colonizers used violence against Native people, especially women and Two-Spirit people, as a tactic of control and domination since first contact in the 1600s. Second, nearly two hundred years of legislative actions and case law have effectively stripped Native Nations of all criminal jurisdictional power over crimes committed on their land …

Innovation Interrupted: Legal And Institutional Risks Of Undermining Public-Private Partnerships, Jennifer S. Fan, Xuan-Thao Nguyen

Articles

Part I traces the development of the Bayh–Dole Act and discusses public–private partnership collaboration. Part II focuses on intellectual property generation by universities, illustrating the benefits of public– private partnership. Then Part III highlights the Trump administration’s federal funding cuts to universities that jeopardize the established public–private partnerships. Finally, Part IV details the consequences of how federal funding cuts impact the venture capital sector and the legal architecture of innovation, eroding the United States’ standing in the innovation race.

Constitutional Futurism As Pedagogy, Jeremiah Chin

Articles

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

Constitutional Futurisms, Jeremiah Chin

Articles

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …

Redefining Child Pornography In An Age Of Technological Advancement: The Concept Of Avoidable Harm, Debra D. Burke, Christopher N. Doval

Washington Journal of Law, Technology & Arts

In 2020, Netflix released on its streaming service the movie Cuties, a coming-of-age story about an 11-year-old Senegalese immigrant who joined a dance group. The film is a commentary against the hyper-sexualization of children and the pressure young girls face from social media and society and received a director’s award at the Sundance Film Festival. Its release, however, kicked off a culture war, prompting a movement to cancel Netflix subscriptions in response to the film’s sexually provocative imagery of young girls. The movie’s award-winning director defended the film’s message, explaining that the film was her own story, struggling as a …

Stolen Humanity On Display: Lacking Legislation For Human Remains In U.S. Museums, Sarah M. Fassio

Washington Journal of Law, Technology & Arts

In museums across the United States, displays of human remains are not rarities. Yet few attendees stop to consider the provenance behind those once-living parts of our ancestors. To do so, one would have to contend with an unpleasant history rife with scientific racism and graverobbing for the personal collections of society’s upper crust. Considering the origins of such displays reveals that the labels and names attached to human remains in museums often serve more to alienate them from their humanity than they do to connect or contextualize.

Legal regulations pertaining to displayed human remains are piecemeal. There are federal …

Precise Operations, Imprecise Laws: How Nebulous Laws Wreak Havoc In Outer Space, Matthew H. Ormsbee, Harine Raaj

Washington Journal of Law, Technology & Arts

As space operations advance with unprecedented precision, the laws governing these activities remain outdated, vague, and incapable of addressing contemporary challenges. The Outer Space Treaty (OST) and the Liability Convention, drafted in the Cold War era, fail to adequately define fundamental terms such as damage, fault, and compensation. This lack of legal precision creates significant liability gaps, particularly as space debris, mega-constellations, and private-sector actors reshape the space landscape. This article explores how these ambiguities hinder legal predictability and fair compensation for victims of space-related harm. By analyzing real-world space incidents, including the Cosmos 954 reentry, the Iridium-Cosmos collision, and …

Tailoring The Law: Protecting Fashion In The Future, Imaad Huda

Washington Journal of Law, Technology & Arts

This article identifies how the current legal system in the United States harms fashion designers and the art they produce. It explains how fashion as an industry lacks a system of law that best fits the issues posed by design theft due to fast fashion. Fast fashion companies, through modern technology, are able to reproduce stolen designs with haste. Currently, there are a few notable cases that have spawned from design theft, but their verdicts may be limited in their ability to change policy or raise significant legal issues. This article analyzes both current federal enforcement mechanisms and design practices …

Washington State Supreme Court Hosts A Call To Justice For Native Tribes, Adam Eisenberg

Articles

In June 2025, the Washington State Supreme Court held a remarkable, first of its kind symposium called, “TÁĆELŚW SIÁM- A Call to Justice for Indigenous Peoples.” TÁĆÁĆELŚW SIÁM- a Salish term for welcoming a respected person–set the tone for the full-day event. The state Supreme Court bench and its guests met in the Washington State Temple of Justice to hear a variety of indigenous and ally voices speak about historic injustice and generational trauma. It was also an opportunity to learn about many of the contemporary legal issues faced by tribes, and the need to respect tribal sovereign

Expanding Equity And Innovation In Pharmaceutical Law And Drug Development: Paying Clinical Trial Participants For Their Data, Steve Calandrillo, Bernadette Tosti, Jefferson Smith, Jamison Koeman

Articles

Bringing a drug to market is exceedingly expensive and exposes pharmaceutical manufacturers to significant legal risk. But when companies are successful, their profits make the PowerBall jackpot look like petty cash. Staggering rewards measure in the billions or millions for the firms, CEOs, pharmacies, drug benefit managers, data brokers, and many more actors in the pharmaceutical-to-patient pipeline. The only individuals who don’t get paid handsomely are the clinical trial participants, whose voluntary participation and data helped make those successes possible. It is long past time that we reform the legal and regulatory roadblocks to paying clinical trial participants in the …

“Any Black Man Will Do”: A Transparency Framework For Eyewitness Identification In The Facial Recognition Technology Era, Ariam O. Kiflemariam

Washington Journal of Social & Environmental Justice

No abstract provided.

Drawing Lines In The Sea: Indigenous Sovereignty Through The Coastal Zone, Tyler Hall

Washington Journal of Social & Environmental Justice

No abstract provided.

(Environmental) Justice For All: Rethinking Environmental Disaster Remedies, Alyssa Umberger

Washington Journal of Social & Environmental Justice

No abstract provided.

Justice Lewis Powell’S Quiet Luxury: From Bakke To Sffa, Lucille A. Jewel

Washington Journal of Social & Environmental Justice

No abstract provided.

The Objective Observer: The Washington State Supreme Court's Remedial Aspirations And Experience On The Ground, David B. Owens

Washington Law Review

The Washington State Supreme Court has adopted an “objective observer rule” for addressing whether race impacted jury selection and extended this rule to evaluating all aspects of Washington courts, including jury trials. The objective observer rule allows courts to evaluate whether decisions in those courtrooms could be viewed as the result of racial bias, even where there is no evidence of specific racial animus and in the absence of racial slurs. The rule, which covers a form of disparate impact, has now existed for over half a decade. This Article outlines the Washington State Supreme Court’s development of the objective …

The Gift Of Public Funds Bogeyman, Noah Purcell, Michelle Saperstein

Washington Law Review

Washington’s “gift of public funds” doctrine is frequently misunderstood in ways that impede innovative ideas aimed at remedying some of our state’s most intractable problems. This doctrine arises from article VIII, sections 5 and 7 of the Washington Constitution, which prohibit state and local governments from gifting assets or loaning credit. While the Washington State Supreme Court historically applied these provisions in restrictive and confusing ways, the Court’s modern jurisprudence recognizes that the doctrine is inapplicable to funding expended for any of the many “fundamental purposes” of government. Even where a government program does not fall under this broad category, …

"A Man’S Home Is His Castle"? Intimate Partner Violence, Firearm Surrender, And Home Searches Under Article I, Section 7 Of The Washington Constitution, Dana Raigrodski

Washington Law Review

Intimate partner violence (IPV) remains a vexing problem in Washington. Firearms make intimate partner violence much more dangerous and, frequently, deadly. To protect victims of IPV and to reduce its severity when guns are present, the State of Washington put in place a comprehensive statutory scheme to disarm perpetrators of IPV. In 2022, however, the Washington Court of Appeals for Division II held, in State v. Flannery, that the statutory firearm surrender scheme violates article I, section 7 of the Washington Constitution, which prohibits disturbing a person’s private affairs or invading their home without authority of law. This Article …

Why Medicaid Is Addressing Homelessness With Section 1115 Waivers: A Critical Examination Of The United States' Federalist Mental Health System, Joshua Haas

Washington Law Review

Housing and health care are deeply interconnected, and their systemic relationship profoundly affects individual and societal well-being. Inadequate funding has undermined the American mental health system for decades, leading to gaps in care that have caused lasting harm to vulnerable individuals and society as a whole. This Comment examines the historical connections between homelessness and the American mental health system. It explores the benefits and criticisms of the United States’ federalist approach to health care, particularly focusing on Medicaid and its “section 1115 waivers,” which grant states flexibility to develop innovative, state-specific Medicaid programs. Recently, states began to utilize section …