Law Commons^™

The Gorge Commission: An Adequate Forum For States, Counties, Tribes, And The Railroads Operating In The Columbia River Gorge, Dayna Jones

Washington Journal of Environmental Law & Policy

The Columbia River Gorge is host to some of the most biodiverse landscape on the planet. In addition to harboring unique species, the Gorge is also home to a unique jurisdictional landscape. The collaborative legislation that enacted the Gorge Act endowed governmental authority of the General Management Area of the Gorge within a compact agency: the Gorge Commission. Railroads running through the Gorge have contested the Gorge Commission’s jurisdiction over their operations, claiming preemption from the Commission’s authority. This article discusses the competing jurisdictional interests in the General Management Area of the Gorge and explains why the Gorge Commission is …

Biodiversity Conservation In The National Forests, And The 2012 Planning Rule, Gordon Steinhoff

Washington Journal of Environmental Law & Policy

The U.S. Forest Service is required to manage the national forests for multiple use, including outdoor recreation, timber production, and more recently, biodiversity conservation. National forest management plans throughout the country are currently being revised under the 2012 Planning Rule. As will be discussed, the 2012 rule provides the Agency with high levels of discretion and management flexibility. The rule does not require maintaining viable populations of all native plant and animal species. The Agency is required to conserve viable populations of “species of conservation concern,” yet the Regional Forester is granted sole discretion in designating these species. The 2012 …

Arctic Law & Policy Year In Review: 2017, Arctic Law & Policy Institute, University Of Washington

Washington Journal of Environmental Law & Policy

According to the U.S. National Oceanic and Atmospheric Administration’s 2017 Arctic Report Card, while 2017 did not shatter as many records as 2016, the Arctic shows no sign of returning to the reliably frozen region it was decades ago. Arctic temperatures continue to increase at double the global rate. 2017 marked the end of the United States’ chairmanship of the Arctic Council and the beginning of another term for Finland. At the May 11, 2017 Fairbanks Ministerial hosted by Secretary of State Rex Tillerson–the first ministerial in which all eight member states were represented by their Foreign Ministers–the Arctic Council …

Exposing Secret Searches: A First Amendment Right Of Access To Electronic Surveillance Orders, Hannah Bloch-Wehba

Washington Law Review

Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy—in the form of gag orders, local judicial rules, and even clerical filing and docketing practices—is built into the laws that regulate electronic surveillance. This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure shows that, far from …

The Marital Wealth Gap, Erez Aloni

Washington Law Review

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata. How can the …

Privacy, Press, And The Right To Be Forgotten In The United States, Amy Gajda

Washington Law Review

When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value …

Alexa, What Should We Do About Privacy? Protecting Privacy For Users Of Voice-Activated Devices, Anne Pfeifle

Washington Law Review

Alexa, Amazon’s digital voice assistant, and devices like it, are increasingly common. With this trend comes growing problems, as illustrated by a murder investigation in Bentonville, Arkansas. Police wanted Amazon to turn over data associated with the suspect’s Echo device, hoping it had overheard something on the night of the murder. The case sparked wide-spread interest in the privacy implications of in-home devices that record audio of users. But the biggest threat to user privacy is not that Alexa may overhear a crime—it is that law enforcement will use such devices in new ways that users are not prepared for …

Preventing Erroneous Expedited Removals: Immigration Judge Review And Requests For Reconsideration Of Negative Credible Fear Determinations, Katherine Shattuck

Washington Law Review

The Central American refugee crisis has renewed criticism of expedited removal, which allows immigration officials to remove without a hearing certain noncitizens who seek to enter or have entered the United States. Asylum seekers who arrive at the border or ports of entry without entry documents undergo a screening process to determine whether they have a “credible fear of persecution.” An individual who receives a positive credible fear determination is entitled to a full hearing before an immigration judge. In contrast, an individual who receives a negative credible fear determination is typically subjected to expedited removal. Scholars and human rights …

Courts As Gatekeepers: The Case For Minimal Deference To Agency Interpretations Of The Common Law, Brent Droze

Washington Law Review

In Flytenow, Inc. v. FAA, the D.C. Circuit encountered an important, yet unresolved, question: how much deference should a court give an agency for its interpretation of a common-law term used in a statute or regulation? Traditionally, the Chevron and Auer deference doctrines provide agencies significant freedom in clarifying and interpreting statutes and regulations. The use of these doctrines, though, becomes problematic when applied to fact patterns where agencies interpret the meaning of common-law terms. This Comment argues that courts should not apply either Chevron or Auer deference doctrines in cases where an agency interprets a term that already …

Forum-Selection Provisions In Corporate "Contracts", Helen Hershkoff, Marcel Kahan

Washington Law Review

We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive judicial forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions. We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contract doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for …

Fifty Shades Of Gray Infrastructure: Land Use And The Failure To Create Resilient Cities, Jonathan Rosenbloom

Washington Law Review

Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel “gray infrastructure.” Marked by human-made, engineered …

Brief In Opposition. Idaho Department Of Corrections V. Fuller, 138 S.Ct. 1345 (2018) (No. 17-959), Eric Schnapper, Ericka Birch, Kass Hartstad

Court Briefs

QUESTION PRESENTED The court of appeals concluded that a reasonable jury could find that actions by supervisors at the Idaho Department of Corrections created a hostile work environment. Petitioner does not seek review of that holding. The question presented is: Did the court of appeals err in concluding that the record contained sufficient evidence to permit a reasonable jury to infer that the actions of those supervisors were gender-based?

You Can’T Save Dead People: The Emerging Battles Over Supervised Consumption Sites, James Satterberg

Washington Law Review Online

The United States is experiencing a drug overdose epidemic of historic proportions. As fatal overdose rates continue to increase, some jurisdictions have sought evidence-based solutions to this public health issue. This Comment concerns one proposed remedy in particular: supervised consumption sites. In a supervised consumption site, drug users are encouraged to consume their own drugs at the facility. Facility staff give drug users clean equipment, teach safe injection techniques, and, most importantly, monitor drug users for symptoms of overdose. If a staff member witnesses an overdose, they act to prevent the overdose from becoming fatal. Research conducted on supervised consumption …

Privacy Commitments, Rachel Wilka

Washington Law Review Online

What responsibilities do corporations have with regard to their consumers’ information? Many articles have looked at ways to make personal information the “property” of the consumer. Property approaches attempt to overlay personal information on the legal frameworks of trade secret, trademark, and copyright law. While each approach has its merits, and contributes to the field, none of the proposals generate a concrete way for a consumer to enforce his or her rights against a company. The proposals all suffer from the same fatal flaw, a new system must not just create a consumer right but also balance the inequities in …

Defining Attorney-Client Privilege For The Independent Contractor: A Case For The Functional Equivalent Doctrine In Washington, Benjamin J. Robbins

Washington Law Review Online

Corporations increasingly rely on independent contractors to fulfill basic organizational needs. This increased reliance has created a number of legal issues, one of which is the level of privilege extended to communications between contractors and legal counsel for the contracting corporation. This issue is particularly relevant for corporations in the “gig economy,” like Uber, Lyft, and Postmates, which rely on independent contractors for fundamental business functions. Washington State courts have yet to decide whether independent contractors are entitled to attorney-client privilege regarding these conversations. Generally, Washington courts follow the U.S. Supreme Court’s “Upjohn rule,” which protects communications between corporate counsel …

Beyond Corporate Contract: A Response To Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions In Corporate 'Contracts', Verity Winship

Washington Law Review Online

This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018).

Response To Professor Rosenbloom: Fifty Shades Of Gray Infrastructure: Land Use And The Failure To Create Reslient Cities, 93 Wash. L. Rev. 317 (2018), Roberta F. Mann

Washington Law Review Online

This piece is a response to Jonathan Rosenbloom, Fifty Shades of Gray Infrastructure: Land Use and The Failure to Create Resilient Cities, 93 Wash. L. Rev. 317 (2018).

You Can’T Save Dead People: The Emerging Battles Over Supervised Consumption Sites, James Satterberg

Washington Law Review Online

The United States is experiencing a drug overdose epidemic of historic proportions. As fatal overdose rates continue to increase, some jurisdictions have sought evidence-based solutions to this public health issue. This Comment concerns one proposed remedy in particular: supervised consumption sites. In a supervised consumption site, drug users are encouraged to consume their own drugs at the facility. Facility staff give drug users clean equipment, teach safe injection techniques, and, most importantly, monitor drug users for symptoms of overdose. If a staff member witnesses an overdose, they act to prevent the overdose from becoming fatal. Research conducted on supervised consumption …

Bio-Property Contracts In A New Ecosystem: Genetic Resources Access And Benefit Sharing, Mariko Kageyama

Washington Journal of Law, Technology & Arts

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity presents a relatively new international legal framework. Although the United States is not currently bound by this legal instrument, its impact may be felt in the life sciences innovation sector and beyond. Transnational implementation mechanisms for the Nagoya Protocol have a combination of property law and contract law as their theoretical underpinning. Stakeholders who are entering into an agreement with their foreign counterparts should honor the Access and Benefit-Sharing scheme as well as domestic …

Approximating A Federal Patent District Court After Tc Heartland, Timothy T. Hsieh

Washington Journal of Law, Technology & Arts

This article presents a patent litigation framework for other federal district courts to follow, using the example of the U.S. District Court for the Eastern District of Texas after TC Heartland. This article also provides an overview of the TC Heartland U.S. Supreme Court case and the In Re Cray Federal Circuit opinion, as well as how those two cases have impacted patent litigation in various district courts across the country, most notably in the District of Delaware. All district courts should learn various lessons from the District Court for the Eastern District of Texas and should model their …

My Year Of Citation Studies, Part 3, Mary Whisner

Librarians' Articles

In this third installment examining citation studies, Ms. Whisner looks at five articles from each of a sample of twenty-three journals published in 1982, and discovers some surprising results.

My Year Of Citation Studies, Part 2, Mary Whisner

Librarians' Articles

In this second installment examining citation studies, Ms. Whisner looks at citation patterns of articles versus student works, as well as patterns across journals.

My Year Of Citation Studies, Part 1, Mary Whisner

Librarians' Articles

Ms. Whisner begins a year of exploring how legal scholarship citation counts are created and viewed. What works do authors actually cite? Which legal sources are included? She shares her findings here.

President Trump's Emerging Maritime Policy, Craig H. Allen

Articles

President Donald Trump was elected on a pledge to make America great again. Although he did not enter office with a comprehensive national maritime policy, the elements of such a policy have begun to emerge. Since taking office on January 20, 2017, Trump and the Republican controlled 115th Congress have enacted broad tax reforms and significantly increased defense spending, the first step toward rebuilding the US Navy to 355 ships. The 115th Congress also invoked the Congressional Review Act of 1996 to overturn 14 rules issued by federal agencies during President Obama's term.

“High” Standards: How The Tide Of Marijuana Legalization Sweeping The Country Ignores The Hidden Risks Of Edibles, Steve Calandrillo, Katelyn Fulton

Articles

As a tide of marijuana legalization sweeps across the United States, there is a surprising lack of scrutiny as to whether the benefits of recreational marijuana outweigh the risks. Notably, marijuana edibles present special risks to the population that are not present in smoked marijuana. States that have legalized recreational marijuana are seeing an increase in edible-related calls to poison control centers and visits to emergency rooms. These negative reactions are especially prevalent in vulnerable populations such as children, persons with underlying preexisting conditions, and out-of-state marijuana novices. Unfortunately, research on edible marijuana is scant and state regulatory regimes are …

Disruptive Lending For Innovations: Signaling Model And Banks Selection Of Startups Innovations, Xuan-Thao Nguyen, Erik Hille

Articles

Startups desperately need funding. But lending to startups is too risky for banks. How can banks lend to startups whose cash flow is negative, tangible assets are nonexistent, and most valuable assets are patents? In light of the uncertainties, what can banks do in lending for innovations? In this Article, we turn to economic theory to demonstrate how banks can make their selections of startups, ensuring their returns and encouraging innovations. Specifically, we create a signaling model with partial separating equilibria to demonstrate how banks can address the information asymmetry problem by relying on a truth-telling signal in assessing the …

The Puzzle In Financing With Trademark Collateral, Xuan-Thao Nguyen, Erik Hille

Articles

If trademarks are important corporate assets, do banks and nonbanks lend against trademarks? Or do lenders accept trademark collateral merely as part of a blanket lien? Do banks and nonbanks treat trademarks differently than patents in lending, including venture lending? This first empirical study will attempt to answer these questions. We extract and analyze security interest filings in trademarks and patents against the backdrop of secured transactions law and banking regulations. Based on the data, it seems banks and nonbanks have an aversion for trademark collateral and, by practice, treat most trademarks as idle assets. We also argue that the …

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.

Consociationalism Vs. Incentivism In Divided Societies: A Question Of Threshold Design Or Of Sequencing?, Clark B. Lombardi, Pasarlay Shamshad

Articles

Scholarship on constitutional design for post-conflict or divided societies focuses a great deal of attention on two issues: (1) the processes and timing by which constitutional rules should be established and (2) whether constitutions should reflect a consociationalist or incentivist approach to governance. Scholars are increasingly willing to entertain the possibility that constitutions drafted during period of transition from civil war or authoritarianism need not, and often should not, answer immediately all questions that constitutions tend to answer; however, they tend to assume that the question of whether constitutions should be consociationalist or incentivist is one that should not be …

Is The License Still The Product?, Robert W. Gomulkiewicz

Articles

The Supreme Court rejected the use of patent law to enforce conditional sales contracts in Impression Products v. Lexmark. The case appears to be just another step in the Supreme Court’s ongoing campaign to reset the Federal Circuit’s patent law jurisprudence. However, the decision casts a shadow on cases from all federal circuits that have enforced software licenses for more than 20 years and potentially imperils the business models on which software developers rely to create innovative products and to bring those products to market in a variety of useful ways.

For over two decades, we could say that …