Law Commons^™

Amending Codes Of Judicial Conduct To Impose Campaign Contribution And Expenditure Limits On Judicial Campaigns, Hugh D. Spitzer, Philip A. Talmadge

Articles

Every judicial campaign year, millions of dollars pour into individual court races around the country. The bulk of that money is donated by lawyers, businesses, and others with financial interests in how judges, especially appellate judges, decide cases. United States Supreme Court rulings on political contributions and spending have hamstrung the ability of states to control larges-cale expenditures in judicial races. This essay reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public's perception of court impartiality. It describes how legislatures and courts have addressed (or …

Shipping Company Ordered To Pay Almost $1m For Demoting Whistleblower, Craig H. Allen

Articles

The US Department of Labor's (DOL) Administrative Review Board recently affirmed a DOL administrative law judge (ALJ) decision in favor of the former master of the Horizon Trader who had filed a complaint alleging that the Horizon violated the Seaman's Protection Act by discharging him in retaliation for making protected safety reports to the US Coast Guard and American Bureau of Shipping. In Loftus v. Horizon Lines, Inc. (DOL ARB Case No. 16-082), the board upheld the ALJ's award of $655,1998.90 in back pay plus interest; $10,000 in compensatory damages for emotional distress; $225,000 in punitive damages, and an unspecified …

Democratizing Proof: Pooling Public And Police Body-Camera Videos, Mary D. Fan

Articles

There are two cultural revolutions in recording the police. From the vantage of police departments, there is the rapidly spreading uptake of police-worn body cameras. On the public side, community members are increasingly using their cell phone cameras to record the police. Together, these dual recording revolutions are generating important new questions and possibilities regarding the balance of power in producing proof and illuminating contested encounters. This Essay is about how pooling police body camera and public videos can address three emerging challenges in the police recording revolution. The first challenge is the controversy over failures to record contested encounters …

“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins

Articles

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to …

The Flipside Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen

Articles

This Article explores the flipside of Michigan--where the Court's logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and--like cost--deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate.

In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget. In support of that thesis, this Article …

Socioeconomic Status Discrimination, Danieli Evans

Articles

This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal.

First and most straightforward, the values animating discrimination law apply to poverty: Existing …

Customary International Law In United States Courts, Gary Born

Washington Law Review

Over the past two decades, the status of customary international law in U.S. courts has been the subject of vigorous debate. On the one hand, proponents of the “modernist” position contend that rules of customary international law are presumptively rules of federal law, which apply directly in U.S. courts and preempt inconsistent state law even in the absence of federal legislative or executive authorization. On the other hand, the “revisionists” argue that, in the absence of congressional legislation or a U.S. treaty, rules of customary international law are generally not matters of federal law, and will therefore generally be governed …

East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa

Washington International Law Journal

No abstract provided.

Court Reform With Chinese Characteristics, Margaret Y.K. Woo

Washington International Law Journal

In Court Reform on Trial: Why Simple Solutions Fail, Malcolm Feeley identified a number of obstacles that undermine reforms of the United States court system. Feeley’s proposed solution was to adopt a problem-oriented “rights strategy”—letting the courts themselves solve their problems through litigation. This is because litigation is a forum in which courts are well placed to identify specific problems and devise pragmatic solutions. This Article takes a look at this proposition in the context of court reforms in China and concludes that courts (and law) are also a reflection of national goals and identity. Any reforms to a …

Victim Participation In Japan, Erik Herber

Washington International Law Journal

In 2008, a victim participation system was introduced in Japan, which enabled crime victims to participate in criminal proceedings. One of the goals of the system was to correct the wrong done to victims due to their lack of previous involvement, thus giving crime victims what they “naturally desire.” Employing Malcolm Feeley’s analytical framework to make sense of planned legal change, this Article shows that the new system emerged against the background of a combination of international trends: victim activism and public perceptions of crime getting out of hand. It finds that for reasons that are not well understood, only …

Assessing The Direct And Indirect Impact Of Citizen Participation In Serious Criminal Trials In Japan, Matthew J. Wilson

Washington International Law Journal

In Japan, the idea of citizen involvement in the judicial process has gained greater acceptance over the past decade. On May 21, 2009, Japan implemented its saiban’in seido or “lay judge system” as part of monumental legal reforms designed to encourage civic engagement, enhance transparency, and provide greater access to the justice system. About eight years before this historic day, a special governmental committee known as the Justice System Reform Council (“JSRC”) set forth wide-sweeping recommendations for revamping Japan’s judicial system. The underlying goals targeted three pillars of fundamental reform, namely: (i) a justice system that is “easier to use, …

East Asian Court Reform On Trial: Comments On The Contributions, Malcolm M. Feeley

Washington International Law Journal

I am honored to have my book, Court Reform on Trial: Why Simple Solutions Fail, serve as the organizing framework for this symposium. The enterprise has proven valuable as it provided a reason to assemble a set of articles that focus on important changes in Asian courts in recent decades. Further, it appears that the reforms in three of the countries are loosely related to each other. While Japan had a head start on judicial reforms, both Korea and Taiwan embarked on the same path as soon as they had shed authoritarian rule. China has pursued a more ambitious …

Advance Toward "People's Court" In South Korea, Yong Chul Park

Washington International Law Journal

Since 2008, criminal jury trials have been implemented in South Korea with the Citizen Participation in Criminal Trials Act. Under the Act, defendants have the option to choose a jury trial over a bench trial, although jury verdicts, as well as sentencing opinions rendered by a jury, are not binding on the court pursuant to Article 46(2) of the Act. While Korea’s adoption of a criminal jury trial was an ambitious move toward judicial reform, it has faced serious obstacles and has had limited influence over the Korean judicial system. In this Article, I use the five stages of planned …

Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayama

Washington International Law Journal

Malcolm M. Feeley examined cases of criminal justice reform in the United States, where reforms can be conceived and initiated in a very open structure, but implementation of the introduced reforms can be handed over to highly fragmented implementers. The story of mandatory videotaping of interrogations and accompanying changes in Japan demonstrates the reform process at the other end of the scale, where the members of the criminal justice establishment can exert a strong influence even at the conception and initiation stages, and have even stronger control at the implementation and routinization stages. We believe that Feeley’s theoretical framework can …

Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su

Washington International Law Journal

This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization. Given this context, when Taiwan’s criminal justice system disappoints the people, judges take the blame for the failures of the system. To resolve the serious problem of public distrust in judges and the court system, Taiwan’s government and the judicial authority make “responding to expectations …

Nationwide Permit 12 And Domestic Oil Pipelines: An Incompatible Relationship?, Alexander S. Arkfeld

Washington Law Review

As climate change’s momentum becomes increasingly more difficult to quell, environmentalists are litigating to stop oil pipeline expansion. Litigation over two recently completed oil pipelines—the Flanagan South and the Gulf Coast—illustrates the legal battle environmentalists face. Given the outcome of those cases, it may seem that environmentalists face insurmountable judicial precedent. But they are not out of options quite yet. Although no statute expressly requires the federal government to conduct environmental analysis of proposed domestic oil pipelines, two statutes—the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA)—generally work in tandem to require the U.S. Army Corps of …

The Supreme People's Court's Annual Report On Intellectual Property Cases (2016) (China), Tianyi (Tammy) Wu, Xiaoyang Wang

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, copyright, trade secrets, and unfair competition cases. This 2016 Annual Report examines 27 cases and includes general guidelines for legal application. It reflects the Supreme People’s Court’s thoughts and approaches for ruling on new, difficult, and complex IP and competition cases.

Welfare And Federalism's Peril, Andrew Hammond

Washington Law Review

Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF)—the TANF block grant—guaranteed the program’s deterioration. The Article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved programs. …

The New Sister-State Sovereign Immunity, Michael H. Hoffheimer

Washington Law Review

The Article reviews the constitutional status of sister-state sovereign immunity. It argues that the parity requirement announced in Franchise Tax Board v. Hyatt (2016) is a temporary compromise that is supported by neither the purposes of the Full Faith and Credit Clause nor by cases cited by the Court. It further argues that parity is bad policy because parity overprotects states for acts they commit beyond their borders and under protects the interests of forum states in regulating conduct within their territorial jurisdiction. But the Article breaks from most scholarship. It suggests that the Court went too far in Nevada …

Safeguarding Washington's Trade Secrets: Protecting Businesses From Public Records Requests, John Delaney

Washington Law Review

Lawmakers constantly balance competing interests. They decide where to draw lines so that societal goals are accomplished without ignoring the needs of those who will be affected by their choices. The Washington State Legislature is now in the process of addressing the line between government transparency and the protection of private companies’ trade secrets. Companies who provide technology to the federal government are susceptible to losing their trade secrets through a public records request. The Washington State Legislature is currently reviewing the trade secret exception to the Public Records Act to ensure it is continuing to protect companies from losing …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

Diversification Of The Japanese Judiciary, Daniel H. Foote

Washington International Law Journal

Japan has a career judiciary. The Courts Act of 1947 provides that judges may be appointed from among prosecutors, attorneys, and law professors. In practice, however, the vast majority of judges come from a fourth category, “assistant judges,” who are appointed directly upon completion of the legal training program and typically serve through retirement. This continues a career tradition that dates back to the late nineteenth century. For nearly that long, the Japanese bar has been advocating that the career system should be abolished and that a substantial portion of the judiciary, if not all judges, should be drawn from …

"So Far As War Allows": Why The Al Mahdi Conviction Is Unlikely To Stem The Pace Of Cultural Destruction Perpetrated By Non-State Actors, Jessica E. Burrus

Washington International Law Journal

In September of 2016, Ahmad Al Faqi Al Mahdi was convicted in the International Criminal Court (“ICC”) for the intentional destruction of several World Heritage sites during the 2012 conflict in Timbuktu, Mali. This conviction was hailed as a breakthrough after years of frustration with the lack of enforcement of international laws prohibiting the destruction of cultural property. It was also the first conviction of its kind, and advocates of cultural preservation have celebrated it as a much-needed general deterrent in North Africa and the Middle East, where iconoclasm has become a favorite tactic of various state and non-state actors …

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Washington Law Review

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud

Court Briefs

QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …

Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Adjudicating Religious Sincerity, Nathan S. Chapman

Washington Law Review

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

Dignity, Inequality, And Stereotypes, Luke A. Boso

Washington Law Review

In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that lesbians and gays are inferior to heterosexuals. Second, they unequally deny lesbian and gay individuals the liberty to make fundamental decisions about identity and self. These two conjoined themes—anti-group subordination and pro-individual liberty—comprise the two pillars of “equal dignity” that anchor Obergefell’s holding. This Article proposes that these pillars also support the Court’s anti-stereotyping jurisprudence, and equal dignity is thus one important aspect of what the Equal Protection Clause …

Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Hunter Mcmahon

Washington Law Review

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance’s procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …

Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Articles

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time, however, feminism’s influence waned as …