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Articles 661 - 690 of 6130
Full-Text Articles in Law
Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth
Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth
Washington International Law Journal
Although contemporary populist authoritarians have not entirely abandoned the aims and methods of their ancestors, authoritarianism has been undergoing a reinvention in recent years. Behind a façade of constitutionalism, new authoritarianism claims to abide by democratic principles. Populist authoritarians legitimize themselves through popular elections and maintain the entire set of formal institutions associated with constitutional democracy, using them as both an appearance of representation and a tool of authoritarian imposition. The article focuses on the concepts of trust and distrust of representative government to afford a better understanding of populist authoritarianism. The paper describes two rival theoretical conceptions of government, …
Debugging The Tallinn Manual 2.0'S Application Of The Due Diligence Principle To Cyber Operations, Colin Patrick
Debugging The Tallinn Manual 2.0'S Application Of The Due Diligence Principle To Cyber Operations, Colin Patrick
Washington International Law Journal
As global cyber connectivity increases, so does opportunities for large-scale nefarious cyber operations. These novel circumstances have necessitated the application of old-world customs to an increasingly complex world. To meet this challenge, the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations was created. The Manual provides 154 black letter rules detailing how international law applies to cyber operations during peacetime. Of particular import is the Manual’s interpretation of the due diligence principle. This principle, which defines the contours of a state’s obligation to prevent their territory to inflict extraterritorial harm, is increasingly significant in light of the …
The Changing Nature Of Bureaucracy And Governing Structure In Japan, Mayu Terada
The Changing Nature Of Bureaucracy And Governing Structure In Japan, Mayu Terada
Washington International Law Journal
This paper analyzes and criticizes changes in the relationship between politics and the bureaucracy, in Japan up to the present from the viewpoint of administrative organizations and related public law system. Drastic changes in the legal system, or legal reform, may sometimes undermine the true intention of the policy and its implementation. Thus, bringing political leadership in administrative decision-making bodies cannot be easily concluded as better or worse than the complete separation of administration and government. To analyze this matter in detail, this paper looks at the following points: 1) Analysis of the operation of the limited political appointment system …
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Washington International Law Journal
Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …
Transformative Variations: The Uses And Abuses Of The Transformative Use Doctrine In Right Of Publicity Law, Matthew D. Bunker, Emily Erickson
Transformative Variations: The Uses And Abuses Of The Transformative Use Doctrine In Right Of Publicity Law, Matthew D. Bunker, Emily Erickson
Washington Journal of Law, Technology & Arts
In 2001, the California Supreme Court embarked upon a novel experiment in its right of publicity jurisprudence. The court imported a single element from copyright's fair use analysis. That element—transformative use—has since become an enormously important defense for publicity defendants. Unfortunately, the transformative use doctrine is notoriously protean, and has resulted in significant confusion in publicity law that almost certainly chills protected speech. Many courts seem to lack a clear idea of what a sophisticated transformative use analysis should even look like. This article unpacks these issues and proposes improvements to this difficult legal area.
Animal Healthcare Robots: The Case For Privacy Regulation, Sulaf Al-Saif
Animal Healthcare Robots: The Case For Privacy Regulation, Sulaf Al-Saif
Washington Journal of Law, Technology & Arts
Animal healthcare robots are a form of healthcare or wellness devices that possess the appearance of animals or pets and that collect data on the user. The appearance, use, and nature of data collected by these robots illustrate two types of devices for which privacy regulation falls short: Internet of Things (“IoT”) devices and healthcare devices. This paper surveys the animal healthcare robots currently in the market, details the special privacy concerns associated with such robots, examines the current state of potentially relevant privacy laws, and makes recommendations for privacy regulation in the future.
Unenumerated Power And The Rise Of Executive Primacy, Cheng-Yi Huang
Unenumerated Power And The Rise Of Executive Primacy, Cheng-Yi Huang
Washington International Law Journal
This article argues that contemporary syndromes of constitutional dysfunction do not solely stem from the failures of the controlling executive power. Rather, the tendency of chief executives’ appropriation of power is largely due to the fact that the institutional logic of executive power makes them do so. To govern, the chief executive needs to run the government with power, either political or constitutional. These powers are not always enumerated in the constitution, but would still be regarded as constitutional. This paper argues that the idea of taming unenumerated executive powers by definite constitutional language and text is mostly futile. Drawing …
Taxing Selling Partners, Emily Cauble
Taxing Selling Partners, Emily Cauble
Washington Law Review
When a partner sells a partnership interest, the resulting gain or loss is treated as capital gain or loss, except to the extent that the partnership holds certain items whose sale would result in gain or loss that was not capital. Seemingly, the purpose of this regime is to prevent taxpayers from obtaining more favorable treatment by selling an interest in a partnership than what would result if the partnership were to sell its underlying assets. But given this legislative aim, the existing tax provisions produce results for taxpayers that are both unduly favorable (in that sale of a partnership …
Veil Piercing And The Untapped Power Of State Courts, Catherine A. Hardee
Veil Piercing And The Untapped Power Of State Courts, Catherine A. Hardee
Washington Law Review
The U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court’s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has not yet explicitly …
Corn, Cows, And Climate Change: How Federal Agricultural Subsidies Enable Factory Farming And Exacerbate U.S. Greenhouse Gas Emissions, Trevor J. Smith
Corn, Cows, And Climate Change: How Federal Agricultural Subsidies Enable Factory Farming And Exacerbate U.S. Greenhouse Gas Emissions, Trevor J. Smith
Washington Journal of Environmental Law & Policy
As people around the globe grapple with the realities of an ever-warming planet, Americans, too, are coping with some of the attendant consequences of climate change: severe droughts, storms, and wildfires to name just a few. In response, Americans are evaluating their personal and collective contributions to the climate crisis. Notwithstanding President Trump’s unilateral move in June 2017 to withdraw the United States from the Paris Agreement, the international community is pressing forward with comprehensive strategies to mitigate anthropogenic sources of atmospheric carbon. Despite their best efforts, however, most of these actions focus on the energy and transportation sectors while …
Crashworthy Code, Bryan H. Choi
Crashworthy Code, Bryan H. Choi
Washington Law Review
Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb. Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the …
Patent Law And The Emigration Of Innovation, Gregory Day, Steven Udick
Patent Law And The Emigration Of Innovation, Gregory Day, Steven Udick
Washington Law Review
Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. Because, however, patent law is bound by strict territorial limitations, one cannot strengthen patent protection by innovating abroad; as a result, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent. In essence, then, there is a debate pitting industry leaders against scholarship about whether firms can use offshore innovation to secure stronger patent rights, influencing the rate of innovation. To resolve this puzzle, we offer a novel theory of patent rights—which we …
Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever
Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever
Washington Law Review
Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve …
Striking A Balance: Privacy And National Security In Section 702 U.S. Person Queries, Brittany Adams
Striking A Balance: Privacy And National Security In Section 702 U.S. Person Queries, Brittany Adams
Washington Law Review
The transformation of U.S. foreign intelligence in recent years has led to increasing privacy concerns. The Foreign Intelligence Surveillance Act of 1978 (FISA) traditionally regulated foreign intelligence surveillance by authorizing warrant-based searches of U.S. and non-U.S. persons. Individualized court orders under traditional FISA were intended to protect U.S. persons and limit the scope of intelligence collection. In a post-9/11 world, however, the intelligence community cited concerns regarding the speed and efficiency of collection under traditional methods. The intelligence and law enforcement communities recognized the “wall” preventing information sharing between the communities as a central failure leading to the 9/11 attacks. …
What Do You Know? Discovering Document Compilations In 39(B)(6) Depositions, Sara Leonetti
What Do You Know? Discovering Document Compilations In 39(B)(6) Depositions, Sara Leonetti
Washington Law Review
The work product doctrine emerged as a judicially created, practical solution to resolve problems inherent in the Federal Rules of Civil Procedure (FRCP). While the FRCP famously sought to broaden discovery and increase parties’ access to information, the rules infamously failed to prevent attorneys from discovering each other’s work product. For policy reasons—primarily to keep some semblance of the adversarial system—the U.S. Supreme Court created work product qualified immunity to prevent attorneys from discovering their opponents’ work, mental impressions, and legal strategies. At the end of the twentieth century, courts significantly extended the work product doctrine when they began to …
The Fight Over Columbia River Basin Salmon Spills And The Future Of The Lower Snake River Dams, Michael C. Blumm, Doug Deroy
The Fight Over Columbia River Basin Salmon Spills And The Future Of The Lower Snake River Dams, Michael C. Blumm, Doug Deroy
Washington Journal of Environmental Law & Policy
One of the nation’s most longstanding environmental-energy conflicts concerns the plight of numerous Columbia Basin salmon species which must navigate the Federal Columbia River Power System (FCRPS), a series of hydroelectric dams that make the basin one of the most highly developed in the world. Although the FCRPS dams produce a wealth of hydropower, the mortalities they cause due to the construction and operation of FCRPS dams led to Endangered Species Act listings for the basin’s salmon. Since those listings a quarter-century ago, the federal government has repeatedly failed to produce biological opinions that can survive judicial scrutiny. The latest …
An Empirical Study Of Fast-Food Franchsing Contracts: Towards A New "Intermediary" Theory Of Joint Employment, Kati L. Griffith
An Empirical Study Of Fast-Food Franchsing Contracts: Towards A New "Intermediary" Theory Of Joint Employment, Kati L. Griffith
Washington Law Review
The “Fight for Fifteen and a Union” movement among fast-food workers and their allies has raised awareness about wage inequality in the United States. Rather than negotiating for better wages and working conditions with economically weak restaurant-level franchisees, the movement aims to affect the practices of what they view as the all-powerful brands—the franchisors. Few would dispute the notion that the franchisor brands, not their franchisees, set industry-wide standards and, thus, have the ability to offset rising wage inequality and improve working conditions. And yet, the movement has raised controversial law and policy questions about the legal responsibilities of these …
Who Decides Fair Use–Judge Or Jury?, Ned Snow
Who Decides Fair Use–Judge Or Jury?, Ned Snow
Washington Law Review
For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent. Oracle raises a fundamental question in jurisprudence: Who should decide an issue–judge …
Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz
Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz
Washington Law Review
Football is a staple in many American households: each week, millions watch the game. Every year, National Football League athletes benefit by taking advantage of this passion, not only by earning millions of dollars in salary, but also by signing lucrative endorsement deals. While success on the field is a starting point, an athlete with a captivating personality stands to gain even more financially. A unique end zone celebration that captures fans’ hearts contributes to that personality and makes the player more marketable. In 2017, after announcing plans to relax the rules against end zone celebrations, the National Football League …
Tuesday Morning Detective Work, Mary Whisner
Tuesday Morning Detective Work, Mary Whisner
Librarians' Articles
The author describes her process for tracking down information requested by a law student.
Annual Report, 2019 (Five Year Report 2013-2019)
Annual Report, 2019 (Five Year Report 2013-2019)
Tech Policy Lab
With this report, we celebrate the Tech Policy Lab’s five-year anniversary. We are deeply grateful to the community for helping us mark this milestone. We came together in the fall of 2013 to create a deeply interdisciplinary research collaboration with real-world impacts. We chose to model our new collaboration on a laboratory—a place to experiment with a distinct interdisciplinary model for research, to develop tangible and innovative new resources, and to train the next generation of tech policy experts. With co-equal faculty directors from three distinct disciplines, and students and faculty from many more, we set out to bridge the …
Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling
Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling
Washington International Law Journal
Japan's Liberal Democratic Party has advocated many years for constitutional revision, and after attaining a two-thirds majority in both Houses of the Diet in 2017, Prime Minister Shinzō Abe is poised to move forward with that goal. The only hurdles to amending the Constitution of Japan are the amendment procedures stipulated in Article 96. The plain text of Article 96 requires a two-thirds vote in both Houses followed by popular referendum, but it poses no explicit limitations on the scope of any amendment even the amendment process itself is fair game at first glance. Nevertheless, Japanese scholars have claimed that …
Crouching Tigers And Hidden Dragons On The Great Wall Street: Decoding The Corporate Goverance Of Chinese Commercial Banks, Yueh-Ping (Alex) Yang
Crouching Tigers And Hidden Dragons On The Great Wall Street: Decoding The Corporate Goverance Of Chinese Commercial Banks, Yueh-Ping (Alex) Yang
Washington International Law Journal
As China’s economic influence on the world grows, its system of state capitalism is likewise receiving increasing scrutiny. Behind the state capitalism, China’s banking sector, the “Great Wall Street”—parallel to the “Wall Street” in the United States—plays a fundamental role in financing and supporting China’s economy. Contemporary studies of China’s state capitalism, however, focus mainly on Chinese state-owned enterprises, leaving less attention specific to China’s state-owned banking sector which adopts a rather different corporate governance practice. In this paper, I conduct a comprehensive and critical review of the bank governance practice in China. Statutorily, Chinese commercial banks generally follow corporate …
A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning
A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning
Washington International Law Journal
This article explores how courts in developed market economies address the tension between recognizing the rights of indigenous groups and addressing questions of land development that supposedly benefit the majority populations. Using a comparative approach, the article identifies three jurisdictions in the Pacific Rim with indigenous populations: (1) the State of Hawai‘i in the United States, (2) Japan, and (3) New Zealand and analyzes how land use courts and administrative bodies have addressed the thorny question pursuing development while fulfilling their obligations to indigenous populations. While the State of Hawai‘i has explicit state constitutional protections, Japan and New Zealand each …
When The Icc Comes Knocking, The United States Should Welcome It With Open Arms, Brittney A. Dimond
When The Icc Comes Knocking, The United States Should Welcome It With Open Arms, Brittney A. Dimond
Washington International Law Journal
The Office of the Prosecutor of the International Criminal Court requested approval to open a formal investigation into war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003. If the investigation is approved, the United States will have significant implications not only for relations going forward between the United States and the ICC, but also for the international communities' understanding of the Court's jurisdiction.Three of the United States' likely response options based on its past and current relationshipo with the ICC include: (1) declining to cooperate with the ICC based on a denial of jurisdiction due to …
Greater Uniformity And Centralization: The Regulatory Development Of Chinese Food And Product Safety Under The Wto, Nga Kit (Christy) Tang
Greater Uniformity And Centralization: The Regulatory Development Of Chinese Food And Product Safety Under The Wto, Nga Kit (Christy) Tang
Washington International Law Journal
The WTO Agreements emphasize free trade, which links with diversity, deregulation, and decentralization. China, on the other hand, emphasizes uniformity and centralization, especially regarding the political control and the one-party system of “democratic dictatorship.” China’s joining the WTO, therefore, may be considered as a development that changes the regulatory structure to become more diverse, deregulated, and decentralized. This paper, however, finds the opposite. Under the WTO law, China is encouraged to move towards greater uniformity and centralization with its decentralized and non-uniform settings under the market policy. Moreover, the WTO’s uniform and centralized encouragements can be integrated into the rule-by-man …
Mining At The Crossroads Of Law And Development: A Comparative Review Of Labor-Related Local Content Provisions In Africa's Mining Laws Through The Prism Of Automation, Nneoma Veronica Nwogu
Mining At The Crossroads Of Law And Development: A Comparative Review Of Labor-Related Local Content Provisions In Africa's Mining Laws Through The Prism Of Automation, Nneoma Veronica Nwogu
Washington International Law Journal
Africa boasts one-third of the world’s mineral resources. Mineral development, if governed by appropriate legal frameworks, is key to facilitating development in Africa. With this realization, the African Union (AU) adopted the Africa Mining Vision (AMV) in 2009, which aims to prioritize African industrialization, safeguard the environment, build and utilize local labor force capacity, facilitate transparency, and improve revenue-sharing mechanisms in Africa. However, at the same time, the dawn of artificial intelligence (AI) and complex levels of automation is making quick inroads into the mineral development sector. This article argues that, in response to the AMV, over half of Africa’s …
Making Land Titles In India Marketable: Using Title Insurance As A Viable Alternative To Conclusive Titling, Anirudh Burman
Making Land Titles In India Marketable: Using Title Insurance As A Viable Alternative To Conclusive Titling, Anirudh Burman
Washington International Law Journal
Though land comprises a significant component of the total asset portfolio of Indian households, the quality of land titles is poor. So far, policies have been directed at improving government records, with the objective of being able to issue titles that are “conclusive” in nature, and an indemnity system run by the state that compensates those who suffer from errors or omissions of government agencies maintaining such records. This paper explores an alternative method of reaching the same objective—title insurance. Recently, the 2016 Real Estate Regulation Act has allowed state governments to require title insurance for real estate projects. There …
Save Your Breath: A Constitutional Analysis Of The Criminal Penalties For Refusing Breathalyzer Tests In The Wake Of Birchfield V. North Dakota, Kylie Fisher
Washington Law Review Online
Statutes that criminally penalize suspected drunk drivers who refuse to submit to testing of their blood alcohol concentration emerged in a number of states as a way to better enforce implied consent statutes that require drivers submit to such testing. In Birchfield v. North Dakota, the Supreme Court held that statutes that criminally punish individuals for refusing a blood test were unconstitutional but upheld criminal refusal statutes regarding breath tests. Much of the reasoning in the majority’s opinion stemmed from a shallow perception of the invasion that breath tests pose to individual privacy interests. Justice Sotomayor’s dissenting opinion noted …
Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan
Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan
Articles
Eight percent—that is the percentage of women who serve on the boards of directors of private high technology companies. Private companies, particularly high technology companies, have transformed citizens’ daily lives, while the unprecedented availability of private capital has allowed those companies to remain private longer. This rise, however, has also obscured some of the weaknesses of private companies, which are not subject to public disclosure and regulatory oversight: rampant sexual harassment, the lack of women leaders in technology companies, the relative absence of female venture capitalists, and the dearth of female board members, to name a few. Yet thus far, …