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Full-Text Articles in Law

Brief Of Respondent State Of Washington Department Of Fish And Wildlife In Support Of Petition For Writ Of Certiorari - Makah Indian Tribe V. Quileute Indian Tribe And Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018)) Jun 2018

Brief Of Respondent State Of Washington Department Of Fish And Wildlife In Support Of Petition For Writ Of Certiorari - Makah Indian Tribe V. Quileute Indian Tribe And Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

No abstract provided.

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Visual Methaphor And Trademark Distinctiveness, Dustin Marlan Jun 2018

Visual Methaphor And Trademark Distinctiveness, Dustin Marlan

Washington Law Review

Perhaps because words are the lawyer’s principal instrument, the law gives too little attention to visual images. Invoking Justice Potter Stewart’s infamous statement regarding the law’s inability to define obscenity, “I know it when I see it” is the standard for interpreting images in the law. A greater understanding of the ways in which images make meaning is needed, however, including in trademark law given our increasingly visual economy. This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image …

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Privacy In The Cloud: The Fourth Amendment Fog, Sarah Aitchison Jun 2018

Privacy In The Cloud: The Fourth Amendment Fog, Sarah Aitchison

Washington Law Review

The Cloud has changed how individuals record, store, and aggregate their personal information. As technology’s capacity for holding an individual’s most intimate details and recording day-to-day experiences increases, Fourth Amendment privacy protections become less equipped to respond to technological advances. These advances allow private companies to store an immense amount of their consumers’ personal information, and government entities to obtain that information. In response, tech companies have begun refusing to comply with government demands for information collected and stored in their devices and in the Cloud, and are increasingly ending up in court, fighting orders to disclose consumer information. A …

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How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem, Amanda Levendowski Jun 2018

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem, Amanda Levendowski

Washington Law Review

As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its oftenhomogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, …

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Combating Climate Reclacitrance: Carbon-Related Border Tax Adjustments In A New Era Of Global Climate Governancec, David A.C. Bullock Jun 2018

Combating Climate Reclacitrance: Carbon-Related Border Tax Adjustments In A New Era Of Global Climate Governancec, David A.C. Bullock

Washington International Law Journal

This article argues that carbon-related border tax adjustments (“CRBTAs”) can be used effectively to complement the compliance mechanisms of the Paris Agreement against a truly recalcitrant party. The soft enforcement mechanisms envisioned by the Paris Agreement—facilitative assistance and political or moral suasion—are unlikely to provide a sufficient response to a party that becomes truly recalcitrant. CRBTAs provide parties to the Paris Agreement with a hard-edged economic tool able to respond to a party that disavows the Paris regime. This article outlines the features of a CRBTA regime that would be lawful under the General Agreement on Tariffs and Trade and …

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The Sociedad Por Acciones Simplificada: Suggestions For Further Reform Of Mexico's First Unipersonal Limited Liability Entity, Laura K. Daugherty Jun 2018

The Sociedad Por Acciones Simplificada: Suggestions For Further Reform Of Mexico's First Unipersonal Limited Liability Entity, Laura K. Daugherty

Washington International Law Journal

Mexico introduced its first unipersonal limited liability entity in 2016, the Sociedad por Acciones Simplificada (“SAS”). The introduction of Mexico’s SAS is in line with legal development in Latin America as a whole, where there has been a recent trend towards introducing new unipersonal limited liability entities that are specially designed to reduce barriers to entry for burgeoning business owners and ease the requirements of owning a business entity. However, the Mexican SAS as it currently exists is uniquely overly restrictive. To remedy this, some of the current restrictions on the entity should be lifted to facilitate the functionality of …

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Hangeul As A Tool Of Resistance Aganst Forced Assimiliation: Making Sense Of The Framework Act On Korean Language, Minjung (Michelle) Hur Jun 2018

Hangeul As A Tool Of Resistance Aganst Forced Assimiliation: Making Sense Of The Framework Act On Korean Language, Minjung (Michelle) Hur

Washington International Law Journal

Language policies that mandate a government use a single language may seem controversial and unconstitutional. English-only policies are often seen as xenophobic and discriminatory. However, that may not be the case for South Korea’s Framework Act on Korean Language, which mandates the use of the Korean alphabet, Hangeul, for official documents by government institutions. Despite the resemblance between the Framework Act on Korean Language and English-only policies, the Framework Act should be understood differently than English-only policies because the Hangeul-only movement has an inverse history to English-only movements. English-only movements have a history of using English as a …

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The Limits Of Constitutional Deferral: Lessons From The History Of The 2004 Constitution Of Afghanistan, Shamshad Parsarlay Jun 2018

The Limits Of Constitutional Deferral: Lessons From The History Of The 2004 Constitution Of Afghanistan, Shamshad Parsarlay

Washington International Law Journal

In an important recent work, Rosalind Dixon and Tom Ginsburg noted that constitution writers regularly choose to defer to the future important questions of constitutional design. They argue that an “optimal” level of constitutional deferral might contribute to constitutional stability and help constitutions live longer. This Article argues that although constitution makers might choose to defer on many important questions of constitutional design to promote agreement, certain types of deferral might turn out to be counterproductive, and thus constitution writers’ choice to defer should be limited. The Article highlights that it is risky to defer to future legislatures the powers …

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Retaliation Backlash, Alex B. Long Jun 2018

Retaliation Backlash, Alex B. Long

Washington Law Review

Until fairly recently, the narrative regarding employment retaliation plaintiffs has been that the federal courts—and the Supreme Court in particular—are generally sympathetic to employees claiming illegal workplace retaliation. This narrative has changed drastically over the past few years, to the point that there has been a backlash among courts to the initial wave of plaintiff success. In this respect, the evolution of retaliation law largely tracks the evolution of disability law. This Article argues that the evolution of these areas of the law illustrates a simple but fundamental point about the interpretation of statutes regulating the workplace at present: unless …

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Choosing Medical Malpractice, Nadia N. Sawicki Jun 2018

Choosing Medical Malpractice, Nadia N. Sawicki

Washington Law Review

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

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Dangerous Warrants, Nirej Sekhon Jun 2018

Dangerous Warrants, Nirej Sekhon

Washington Law Review

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing …

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Jus Pro Bello: The Impact Of International Prosecutions On War Continuation, Marco Bocchese Jun 2018

Jus Pro Bello: The Impact Of International Prosecutions On War Continuation, Marco Bocchese

Washington International Law Journal

This Article investigates the political and military conditions under which national governments decide to invite judicial scrutiny from the International Crim-inal Court (“ICC”). The cross-case analysis of seven countries either examined or officially investigated by the ICC Prosecutor’s Office (“OTP”) lends support to the conclusion that governments solicit external judicial scrutiny due to two main independent variables: namely, a military’s inability to defeat a rebellion and a short-term preference for continuing war over negotiating its conclusion. This Article contends that the values placed on these variables combine to persuade national governments in conflict-ridden countries that, against predictions to the contrary, …

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I Would Like To Request Your Academic Records: Ferpa Protections And The Washington Public Records Act, Tevon Edwards Jun 2018

I Would Like To Request Your Academic Records: Ferpa Protections And The Washington Public Records Act, Tevon Edwards

Washington Law Review

The Washington Public Records Act is a broad mandate for the release of almost all public records. In response to a request, a state or local agency must produce the requested records unless a specific exemption applies. In part to enforce compliance on public agencies, the Public Records Act requires that a requester be compensated for statutory fees, costs, and attorneys’ fees if a government agency declines to provide a public record, is challenged, and the requester succeeds in court. However, within public education agencies, compliance with the Washington Public Records Act can run against the agencies’ requirements under the …

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Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson Jun 2018

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Washington Law Review

Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents. Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

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The Secret Life Of Priority: Corporate Reorganization After Jevic, Jonathan C. Lipson Jun 2018

The Secret Life Of Priority: Corporate Reorganization After Jevic, Jonathan C. Lipson

Washington Law Review

Academics have long debated whether the order of bankruptcy distributions should be “absolute” or “relative.” Should courts have the flexibility to scramble priority to serve some greater good? The Supreme Court’s recent decision in Czyzewski v. Jevic Holding Corp. holds that the answer is “no”: priority is absolute absent the consent of affected creditors. “Consent” is not self-defining, however, and is largely ignored in debates about priority. This is a problem because consent is hard to pinpoint in corporate reorganizations, a type of aggregate proceeding that can involve hundreds or thousands of creditors and shareholders. Although the Jevic majority …

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Preserving Vawa's "Nonreport" Option: A Call For The Proper Storage Of Anonymous/Unreported Rape Kits, Gavin Keene Jun 2018

Preserving Vawa's "Nonreport" Option: A Call For The Proper Storage Of Anonymous/Unreported Rape Kits, Gavin Keene

Washington Law Review

The Violence Against Women Act (VAWA) requires participating states and the District of Columbia to pay for medical forensic exams for victims of rape and sexual assault, including the collection of evidence using “rape kits,” whether or not the victim chooses to pursue criminal charges. The chief statutory purpose of the requirement is to preserve evidence in the interest of justice without pressuring a traumatized victim to decide on the spot whether to activate a criminal investigation. Rape kits collected without an accompanying police report are called “anonymous rape kits,” “unreported rape kits,” or “Jane Doe rape kits.” This is …

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Reply Brief For The Petitioner - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018)) Apr 2018

Reply Brief For The Petitioner - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

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Brief Amicus Curiae On Behalf Of Pacific Coast Federation Of Fishermen’S Associations, Alaska Trollers Association, Institute For Fisheries Resources, Fly Fishers International, Northwest Sportfishing Industry Association, Northwest Guides And Anglers Association - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018)) Association Of Northwest Steelheaders, And The Conservation Angler In Support Of Respondents Apr 2018

Brief Amicus Curiae On Behalf Of Pacific Coast Federation Of Fishermen’S Associations, Alaska Trollers Association, Institute For Fisheries Resources, Fly Fishers International, Northwest Sportfishing Industry Association, Northwest Guides And Anglers Association - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018)) Association Of Northwest Steelheaders, And The Conservation Angler In Support Of Respondents

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

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Acts Of Financial Distress In The Eu: Is The Eu To Blame?, Venetia Argyropoulou Apr 2018

Acts Of Financial Distress In The Eu: Is The Eu To Blame?, Venetia Argyropoulou

Washington International Law Journal

This Article seeks to determine if there is a legal basis for European Union (“EU”) Institutions to be held accountable for measures taken by an EU Member State in cases of financial distress. The Article begins by exploring the concept of sovereignty and then evaluates the limitations placed on state sovereignty by participation in the EU. Next, it explores the definitions of economic coercion and countermeasures and considers whether the actions taken by EU institutions in the context of the Cyprus banking haircut would satisfy either of these definitions. Lastly, this Article studies whether EU law can provide a basis …

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Asean Investment Treaties, Rcep, And Cptpp: Regional Strengths, Norms, Institutions, And Politics, Diane A. Desierto Apr 2018

Asean Investment Treaties, Rcep, And Cptpp: Regional Strengths, Norms, Institutions, And Politics, Diane A. Desierto

Washington International Law Journal

Southeast Asia attracts foreign investment more rapidly than elsewhere in the world, including China. Southeast Asia’s evolving regional strategies, norms, institutions, and politics for investment governance should be of considerable interest to global decision-makers. This Article compares evolving investment treaty strategies and norms between the regional investment treaties of: (1) the Association of Southeast Asian Nations (“ASEAN”); (2) the latest draft investment chapter of the China-led sixteen-member Regional Comprehensive Economic Partnership (“RCEP”), to which all ten ASEAN Member States are also negotiating parties; and (3) some features of the current draft investment chapter for the Trans-Pacific Partnership (now renamed the …

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Paris When It Sizzles: What Agenda 21 Can Tell Us About The Likely Success Of The Paris Agreement, Jennifer Devlin Calkins Apr 2018

Paris When It Sizzles: What Agenda 21 Can Tell Us About The Likely Success Of The Paris Agreement, Jennifer Devlin Calkins

Washington International Law Journal

The Paris Agreement seeks to address the problem of climate change, a pressingly urgent issue, and one that is extraordinarily difficult to tackle. A primary mitigation mechanism is the requirement that member countries report their nationally determined contributions (“NDCs”) goals and provide metrics for measuring progress in reducing greenhouse gas emissions. This is a “bottom-up” mechanism that does not bind parties to particular emissions targets, but acts to shift party behavior by making progress transparent. To predict the potential effectiveness of this mechanism, this Comment investigates the effectiveness of a similar mechanism contained in Agenda 21, a plan of action …

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Transitional Justice Legislation In Taiwain Before And During The Tsai Administration, Ernest Caldwell Apr 2018

Transitional Justice Legislation In Taiwain Before And During The Tsai Administration, Ernest Caldwell

Washington International Law Journal

The Republic of China on Taiwan (“Taiwan”) successfully and peacefully transitioned from authoritarian, one-party rule into a constitutional democracy in the early 1990s. However, due to the island’s complex international status and fraught relationship with China, as well as a rather conservative government approach to post-authoritarian discourse on past human rights violations, there has been relatively little scholarly interest in Anglophone academia on Taiwanese transitional justice issues. This Article seeks to deepen our understanding of East Asian transitional justice by examining the influence of post-democratization local conditions on the scope and language of transitional justice legislation during two phases of …

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Ineffective By Design: A Critique Of Campaign Finance Law Enforcement In The United States, Australia, And The United Kingdom, Kelly Ann Skahan Apr 2018

Ineffective By Design: A Critique Of Campaign Finance Law Enforcement In The United States, Australia, And The United Kingdom, Kelly Ann Skahan

Washington International Law Journal

Though ostensibly tasked with enforcing their respective nations’ campaign finance laws, the Federal Election Commission (“FEC”), Australian Electoral Commission (“AEC”), and Electoral Commission (“EC”) are woefully unable to meaningfully address the evolving nature of campaigns or enforce existing regulations in the United States, Australia, and the United Kingdom, respectively. Attempts at enforcement are cut off at the knees by political infighting, half-hearted grants of independent authority, and a lack of institutional support. Conversely, the New York City Campaign Finance Board (“CFB”) is recognized as an example of meaningful enforcement and relative political independence. By implementing changes that translate the CFB’s …

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Robots Welcome? Ethical And Legal Considerations For Web Crawling And Scraping, Zachary Gold, Mark Latonero Apr 2018

Robots Welcome? Ethical And Legal Considerations For Web Crawling And Scraping, Zachary Gold, Mark Latonero

Washington Journal of Law, Technology & Arts

Web crawlers are widely used software programs designed to automatically search the online universe to find and collect information. The data that crawlers provide help make sense of the vast and often chaotic nature of the Web. Crawlers find websites and content that power search engines and online marketplaces. As people and organizations put an ever-increasing amount of information online, tech companies and researchers deploy more advanced algorithms that feed on that data. Even governments and law enforcement now use crawlers to carry out their missions. Despite the ubiquity of crawlers, their use is ambiguously regulated largely by online social …

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Fair Use, Fair Play: Video Game Performances And "Let's Plays" As Transformative Use, Dan Hagen Apr 2018

Fair Use, Fair Play: Video Game Performances And "Let's Plays" As Transformative Use, Dan Hagen

Washington Journal of Law, Technology & Arts

With the advent of social video upload sites like YouTube, what constitutes fair use has become a hotly debated and often litigated subject. Major content rights holders in the movie and music industry assert ownership rights of content on video upload platforms, and the application of the fair use doctrine to such content is largely unclear. Amid these disputes over what constitutes fair use, new genres of digital content have arrived in the form of “Let’s Play” videos and other related media. In particular, “Let’s Plays”—videos in which prominent gamers play video games for the entertainment of others—are big business …

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Smart Contracts, Blockchain, And The Next Frontier Of Transactional Law, Scott A. Mckinney, Rachel Landy, Rachel Wilka Apr 2018

Smart Contracts, Blockchain, And The Next Frontier Of Transactional Law, Scott A. Mckinney, Rachel Landy, Rachel Wilka

Washington Journal of Law, Technology & Arts

Smart contracts are an emerging technology that could revolutionize commercial transactions by eliminating inefficiencies and uncertainty created by the current transactional ecosystem of lawyers, courts, regulators, banks, and other parties with divergent interests. However, a lack of consensus around how smart contracts are implemented, uncertainty regarding enforceability, and scarcity of on point statutes and case law means that a stable legal, commercial and technical smart contract landscape has yet to emerge. The implementation of universal legal, technical and commercial standards and best practices will reduce uncertainty and promote widespread adoption and use of smart contracts.

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How Machines Learn: Where Do Companies Get Data For Machine Learning And What Licenses Do They Need?, Rachel Wilka, Rachel Landy, Scott A. Mckinney Apr 2018

How Machines Learn: Where Do Companies Get Data For Machine Learning And What Licenses Do They Need?, Rachel Wilka, Rachel Landy, Scott A. Mckinney

Washington Journal of Law, Technology & Arts

Machine learning services ingest customer data in order to provide refined, customized services. Machine learning algorithms are increasingly prominent in multiple sectors within the software-as-a-service industry including online advertising, health diagnostics, and travel. However, very little has been written on the rights a company utilizing machine learning needs to obtain in order to use customer data to improve its own products or services. Machine learning encompasses multiple types of data use and analysis, including (a) supervised machine learning algorithms, which take specific data provided in a tagged and classified format to deliver specific predictable output; and (b) unsupervised machine learning …

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Whose Fault In An Aging World?: Comparing Dementia-Related Tort Liability In Common Law And Civil Law Jurisdictions, Trevor Ryan, Wendy Bonython Apr 2018

Whose Fault In An Aging World?: Comparing Dementia-Related Tort Liability In Common Law And Civil Law Jurisdictions, Trevor Ryan, Wendy Bonython

Washington International Law Journal

Age-related dementias have been identified as a global health priority, based on their rapidly rising incidence and associated economic burden. Behaviors symptomatic of dementias, such as wandering, potentially expose sufferers to increased likelihood of experiencing harm or causing harms to others. Yet what jurisprudence and case law exists on the issue of tortious liability of people with dementia is largely derived from the broader principles governing tortious liability of those with mental illness or otherwise impaired capacity. Those principles are themselves problematic, reflecting absolutist models of either personal liability (common law jurisdictions) or statutory personal immunity accompanied by imposition of …

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Snake Oil Speech, Jane R. Bambauer Mar 2018

Snake Oil Speech, Jane R. Bambauer

Washington Law Review

Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but …

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Incentivized Informants, Brady, Ruiz, And Wrongful Imprisonment: Requiring Pre-Plea Disclosure Of Material Exculpatory Evidence, Markus Surratt Mar 2018

Incentivized Informants, Brady, Ruiz, And Wrongful Imprisonment: Requiring Pre-Plea Disclosure Of Material Exculpatory Evidence, Markus Surratt

Washington Law Review

An incentivized informant scandal recently hit Orange County, California where county officials were caught lying, hiding, and not providing information about their informants. Concerned citizens, attorneys, and scholars are beginning to ask more questions as these stories receive increased nationwide attention: what should we do about false incentivized informant testimony? What can we do? Under Brady, Giglio, Ruiz, and their progeny, in criminal cases the government must turn over any material exculpatory evidence that it possesses, or that is available, when the defendant decides to go to trial. However, if the government does not know—or purports not …

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