Law Commons^™

Punitive Decisionmaking, William H. Rodgers

Articles

No abstract provided.

Candor After Kadlec: Why, Despite The Fifth Circuit's Decision, Hospitals Should Anticipate An Expanded Obligation To Disclose Risky Physician Behavior, Sallie Thieme Sanford Sanfords@Uw.Edu

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An anesthesiologist admitted to having been drug-impaired during a tubal ligation that left the patient with massive, incapacitating brain damage. In granting the anesthesiologist privileges, one of the items Kadlec Medical Center had relied upon was a short credentialing letter from Lakeview Regional Medical Center. That letter stated simply that the doctor had held anesthesia privileges there for several years; it did not disclose concerns about on-duty drug use, or that he could not exercise his privileges after having been terminated from his practice group for "put[ting] our patients at significant risk" by "report[ing] to work in an impaired physical, …

A Local Government By Any Other Name, In Proceedings Of The Washington State Association Of Municipal Attorneys, Hugh D. Spitzer

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This paper reviews the categories that Washington legislators and the Washington State Supreme Court have used to classify and describe local government units. It then describes how the large array of classifications—and the lack of consistent interpretation and use of those labels—leads to confusion and unnecessary litigation. After presenting several case studies of the effects of confusing definitions, the paper suggests that legislation reducing the number of terms classifying local governments would benefit lawyers, judges, local government and the general public. It specifically recommends that "municipal corporation" become the standard category for almost all local governments, and that "governmental body" …

Green From Above: Climate Change, New Developmental Strategy, And Regulatory Choice In China, Dongsheng Zang

Articles

This essay discusses a developmental strategy formulated in China between 2004 and 2007, with a strong emphasis on energy efficiency in response to growing pressure from global concerns of climate change. It tries to show how a top-down regulatory structure was reinforced in the process.

Hiding Behind "Tradition"? Should U.S. Vessel Traffic Centers Exercise Greater Direction And Control Over Vessels In Their Areas?, Craig H. Allen

Articles

In the alermath of the 2007 COSCO BUSAN allision and oil spill, some asked whether United States Coast Guard Vessel Traffic Service (VTS) operators monitoring the developing incident should have intervened explicitly to wam the vessel or even order it to take avoiding action.

The controversy called to mind a speech by a former IMO secretary-general in which he suggested that those resisting greater shore-based control were "hiding behind tradition." In its investigation of the COSCO BUSAN incident, the National Transportation Safety Board (NTSB) urged the Coast Guard to better define its expectations regarding the exercise of VTS control authority …

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

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Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

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Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low.

Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, …

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

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This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case's greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? The article explores the lessons taught by …

Translating Unocal: The Expanding Web Of Liability For Business Entities Implicated In International Crimes, Anita Ramasastry, Robert C. Thompson, Mark B. Taylor

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The Ninth Circuit ruled that a corporation could be held liable under the federal Alien Tort Claims Act for its complicity in a violation of international criminal law occurring outside the U.S. (Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002)). Since then, litigants have filed increasing numbers of such cases. These cases raise two questions: (1) Is the United States the only country that provides judicial accountability for business entities involved in international crimes abroad? and (2) How are other countries "translating" the basic kinds of accountability that Unocal recognized into their own legal systems? This Article …

A Black Robe And Healing Words: Constants In A Changing World, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

This narrative article describes a bedside hospital hearing to compel surgery, notes the applicable legal standards, and considers the potential impact of the judge in this type of proceeding. The patient, whose back was badly burned, adamantly and vocally refused skin graft surgery. Her physicians believed she lacked decisional capacity; that belief was borne out during the hearing at which the judge did enter an order for surgery. The judge’s handling of the hearing was central to the patient’s expressed agreement with the decision and subsequent successful treatment.

A Precautionary Tale: Assessing Ecological Damages After The Exxon Valdez Oil Spill, Sanne Knudsen

Articles

To address the shortcomings of our existing damages paradigm--exemplified by the response to the Exxon Valdez oil spill in Prince William Sound--this article suggests that we invoke the burden-shifting attributes of the precautionary principle to transfer the risk of long-term, unknown ecological harm to those who have caused the injury. Through such a risk transfer, this article posits that true costs of ecological injury would more properly be borne by actors capable of altering their behavior to avoid such injury in the first place. In addition, this article suggests offering defendants two options for incurring damages for ecological injuries--either accepting …

Before The Verdict And Beyond The Verdict: The Csi Infection Within Modern Criminal Jury Trials, Tamara F. Lawson

Articles

In criminal law, the term “CSI Effect” commonly refers to the perceived impact the CSI television show has on juror expectation and unexpected jury verdicts. This article coins a new phrase, “CSI Infection,” by focusing on the significant legal impact that the fear of “CSI Infected Jurors” has made upon the criminal justice system. The CSI Infection is the ubiquitous “It” factor that scholars cannot conclusively prove nor effectively explain away; however, practitioners overwhelmingly confirm the CSI Effect’s impact on criminal jury trials. The CSI Effect’s existence, the CSI Effect’s true or perceived impact on acquittals and convictions, and how …

Tax Shelters And Statutory Interpretation: A Much Needed Purposive Approach, Shannon Weeks Mccormack

Articles

Few are unaware that the Tax Code and Regulations provide a detailed, complex (and lengthy) set of rules. It is hardly surprising (or new) that taxpayers attempt to avoid these rules to lower their taxes. Courts and lawmakers have long grappled to identify abusive transactions and strip taxpayers of the associated tax savings. The transactions have, however, changed dramatically over the last decade making the task much more challenging. The rapid proliferation of aggressive and diverse tax shelters has created what many refer to as a tax shelter war. In general, tax shelters refer to transactions carefully designed to fit …

Divided By Common Language: ‘Capture’ Theories In Gatt/Wto And The Communicative Impasse, Dongsheng Zang

Articles

This article tries to present an analytic framework for the understanding of WTO's failure in the Doha Round negotiations.

Are "Better" Security Breach Notification Laws Possible?, Jane K. Winn

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This Article will evaluate the provisions of California's pioneering security breach notification law (SBNL) in light of "better regulation" or "smart regulation" criteria in order to highlight the costs of taking a narrowly focused, piecemeal approach and the benefits of taking a more comprehensive perspective to the problems of identity theft and information security. Just as the basic structure of SBNLs was borrowed from environmental law, this Article will borrow from decades of analysis of the impact of environmental regulation to evaluate the likely impact of SBNLs.

Just as environmental laws can be used to reduce externalities created through the …

Professionalizing Moral Deference, Michael Hatfield

Articles

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the "torture memoranda" to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently …

The Anabaptist Conscience And Religious Exemption To Jury Service, Michael Hatfield

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While the concern over religiously devout Americans who wish to serve on juries is a serious one, a potential juror dismissed from service over his or her religiosity suffers a real but relatively abstract damage. The punishment is being sent home when they want to stay.

This Article examines a different issue with more severe consequences: religiously devout citizens who risk being jailed for refusing to serve on a jury. Rather than asking whether Jesus could serve on a jury, this Article addresses whether we should force Jesus to serve if he said God told him not to. More specifically, …

10 Tips For Getting Jurors To Talk, Maureen A. Howard

Articles

“Jury selection” is a misnomer because lawyers don’t actually get to “select” ideal jurors; they get a limited opportunity to “deselect” the worst prospective jurors. The goal of voir dire is to identify these jurors by uncovering their attitudes, beliefs, opinions, preconceptions, biases, and prejudices. To accomplish this, a lawyer has a difficult task: she must foster an honest, intimate conversation among strangers in a very public, formal environment.

Even honest jurors may give misleading answers during voir dire due to nervousness, inattention, faulty memory, or misunderstanding. The formal courtroom atmosphere can have a chilling effect at odds with the …

From Environment To Energy: China's Reconceptualization Of Climate Change, Dongsheng Zang

Articles

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that "doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy." In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society?

This …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

Articles

No abstract provided.

Open Source License Proliferation: Helpful Diversity Or Hopeless Confusion?, Robert W. Gomulkiewicz

Articles

A decade ago, I observed that licenses were the "unnoticed force" behind free and open source software ("FOSS"). Since then, legal scholarship on FOSS licensing has gone from a trickle to a torrent. Likewise, economists, political scientists, and anthropologists (among others) have begun to focus on FOSS licensing, each from their own academic perspectives. FOSS programmers themselves (known as "hackers" in the FOSS community) have refocused on FOSS licensing, most notably by revising the most venerable FOSS license, the GNU General Public License ("GPL"), for the first time in more than fifteen years.

One prominent issue among hackers and business …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere.

Jacobsen …

Revisiting The Thames Formula: The Evolving Role Of The International Maritime Organization And Its Member States In Implementing The 1982 Law Of The Sea Convention, Craig H. Allen

Articles

Despite the findings that marine casualty rates have "plummeted" and the safety record of the oil transport industry has "significantly improved," high visibility pollution incidents in the last decade like those involving the tankers Erika and Prestige off the coast of Europe, together with the chronic problems of illegal and unregulated fishing and dismal labor conditions for many seafarers led a United Nations-chartered consultative group of leading international organization representatives to conclude that there is an "urgent" need to improve State performance in the implementation and enforcement of the international maritime legal regime.

There is less agreement, however, in how …

A Shift Toward Gender Equality In Prosecutions: Realizing Legitimate Enforcement Of Crimes Committed Against Women In Municipal And International Criminal Law, Tamara F. Lawson

Articles

A new era of law enforcement has emerged recognizing the importance of punishing gender-specific violence. This first wave of "gender-sensitive prosecutors" has changed the way crimes against women are handled in the criminal justice system. The enactment of gender neutralizing laws and policies has dramatically improved the enforcement of crimes against women and attempts to end the era of impunity. This Article addresses the changes in prosecutions and further considers international human rights treaties that require gender equality in law enforcement.

In criminal law, it is the willingness of a prosecutor to exercise his or her discretionary authority to file …

Globalization And Standards: The Logic Of Two-Level Game, Jane K. Winn

Articles

The emergence of a global information architecture has fueled regulatory competition among nations and regions to set information and communication technology (“ICT”) standards. Such regulatory competition can be thought of as a two level game: level one is competition to set ICT standards within a nation or region; level two is competition to set the global ICT standards with reference to local standards.

The United States and the European Union are global leaders in setting ICT standards, and compete to set global ICT standards based on different local regulatory cultures: the U.S. is a “liberal market economy” (“LME”) within which …

Worst Case And The Worst Example: An Agenda For Any Young Lawyer Who Wants To Save The World From Climate Chaos, William H. Rodgers, Jr., Anna T. Moritz

Articles

Wherever you turn with regard to climate change, you'll hear about the worst, and the worst of the worst, and the worst that will happen after that. Young lawyers should put themselves in the right frame of mind to tackle all these "worsts" that are headed our way.

In the interest of keeping it simple, we would suggest a personal strategy for every young lawyer that would entail: (I) Honoring Knowledge and Learning; (II) Protecting Your Institutions and Loving Your Country; (III) Planning and Conducting Your Personal War on Bad Law; and (IV) Rejecting Defeatism and Impossibility Theorems.

Let's consider …

The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, Robert W. Gomulkiewicz

Articles

The Federal Circuit serves as the central appellate court for U.S. patent law appeals. Outside of patent law, scholars have noted the Federal Circuit’s distinct lack of influence on the law. Thus, unnoticed, the Federal Circuit has become one of the most influential actors in the creation of intellectual property licensing law. Its influence reaches across all areas of intellectual property, industries, and all federal circuits and state courts. But the Federal Circuit’s influence on licensing law is more than just a matter of academic interest: licensing is critical to innovation in the information economy. Licenses underlie the creation and …

Defusing The "Atom Bomb" Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckeeson Et Al., Sean M. O'Connor

Articles

The doctrine of inequitable conduct in patent law has a long and vexing history. While it is sometimes mistakenly conflated with the United States Patent and Trademark Office's Rule 56, the doctrine is actually a purely equitable one established by the Supreme Court in 1945—and not revisited by it since then.

This Article re-establishes the roots and proper context of the doctrine, while tracing its confused interactions with Rule 56 over the ensuing decades. The Article reaffirms the necessary balancing act between over and under disclosure of references during patent prosecution, and the inverse sliding scale relationship of materiality and …