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Articles 391 - 420 of 3365
Full-Text Articles in Law
"Underdog" Arbitration: A Plan For Transparency, Ramona L. Lampley
"Underdog" Arbitration: A Plan For Transparency, Ramona L. Lampley
Washington Law Review
The use of mandatory, pre-dispute arbitration clauses in consumer, employment, health-care, and even nursing home agreements is ever-increasing, even though the general public has distrust and a lack of understanding of the nature of arbitration. The Supreme Court in AT&T Mobility LLC v. Concepcion, and then in American Express Co. v. Italian Colors Restaurant, has signaled firmly that mandatory pre-dispute arbitration is here to stay. This is true even for individual low-value claims in which one party, say the consumer or employee, has little or no bargaining power. I call these claims “underdog claims.” There have been numerous …
The Immortal Accusation, Lindsey Webb
The Immortal Accusation, Lindsey Webb
Washington Law Review
In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering that system’s larger allegiance to attaining and preserving findings of guilt. Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured …
State V. Crumpton: How The Washington State Supreme Court Improved Access To Justice In Post-Conviction Dna Testing, Jordan Mccrite
State V. Crumpton: How The Washington State Supreme Court Improved Access To Justice In Post-Conviction Dna Testing, Jordan Mccrite
Washington Law Review
Post-conviction DNA testing is a valuable tool for ensuring innocent people are not wrongfully incarcerated. Society has strong interests in confirming that available, yet previously untested, DNA evidence matches the person convicted. Access to post-conviction DNA testing, however, has been limited to maintain finality and avoid an over-burdened court system. This Note examines post-conviction DNA testing in Washington State, particularly after the 2014 Washington State Supreme Court decision, State v. Crumpton. In Crumpton, a majority of the Court—over a strongly worded dissent—read a favorable presumption into Washington’s post-conviction DNA testing statute. The favorable presumption requires courts to presume …
Regulating Real-World Surveillance, Margot E. Kaminski
Regulating Real-World Surveillance, Margot E. Kaminski
Washington Law Review
A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state’s interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression. This Article identifies the government interest in enacting laws governing surveillance by private …
Nothing Less Than The Dignity Of Man: The Eighth Amendment And State Efforts To Reinstitute Traditional Methods Of Execution, James C. Feldman
Nothing Less Than The Dignity Of Man: The Eighth Amendment And State Efforts To Reinstitute Traditional Methods Of Execution, James C. Feldman
Washington Law Review
While lethal injection is the predominant method of executing death row inmates in America, European export bans and pharmaceutical manufacturers’ refusal to supply execution drugs has impeded the ability of states’ departments of corrections to obtain the drugs used for lethal injections. Facing a drug shortage, several death penalty states have considered legislation to reinstate the use of electric chairs, firing squads, and gas chambers. Efforts to restore traditional methods of capital punishment raise questions about whether such methods still comply with the Eighth Amendment’s prohibition against cruel and unusual punishments. The Supreme Court has observed that the Eighth Amendment …
Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges
Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges
Washington Law Review
Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws …
An Ethical Dilemma: Attorneys' Duties Not To Reveal Elder Abuse In Washington State, Margaret Sholian
An Ethical Dilemma: Attorneys' Duties Not To Reveal Elder Abuse In Washington State, Margaret Sholian
Washington Law Review
Elder abuse is a growing social issue in the United States. As a result of increasing awareness of elder abuse, every state has enacted mandatory or voluntary reporting laws to encourage public oversight of this vulnerable population. While mandatory and voluntary reporting statutes list a wide variety of professionals, such as physicians, social workers, and caretakers, as mandatory reporters, few of these statutes require attorneys to report elder abuse. Arguably, attorneys are in the best position to discover abuse of their elderly clients, as attorneys are advisors, counselors, and protectors of their clients’ affairs. However, in many circumstances, an elderly …
Ridesharing's House Of Cards: O'Connor V. Uber Technologies, Inc. And The Viability Of Uber's Labor Model In Washington, Henry Ross
Washington Law Review
Ridesharing companies, namely Uber and Lyft, have taken the transportation market by storm. These companies offer a competitive alternative to taxis through using smartphone apps and more efficient service offerings. As part of their business model, ridesharing companies treat their drivers as independent contractors rather than employees to minimize labor costs. However, drivers do not benefit from remedial labor statutes and thus (1) must pay for operating costs, (2) are not guaranteed a minimum wage, and (3) do not receive overtime pay. In O’Connor v. Uber Technologies, Inc., a class of California Uber drivers are challenging their independent contractor …
The Law Of Intimate Work, Naomi Schoenbaum
The Law Of Intimate Work, Naomi Schoenbaum
Washington Law Review
This Article introduces the concept of intimate work—intimate services provided by paid workers to a range of consumers—and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party—the consumer—into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to wage-and-hour and antidiscrimination law, among other consequences. The …
Towards An Institutional Challenge Of Imprisonment For Legal Financial Obligation Nonpayment In Washington State, Devon King
Washington Law Review
Imprisonment for debt is resurfacing in the United States, primarily in the form of contempt proceedings for failure to pay court judgments. Although Washington’s Constitution prohibits imprisonment for debt, the State repeatedly jails individuals for failing to pay legal financial obligations. This Comment explores the adverse consequences of this de facto debtors’ prison system, describes the strong prohibition on imprisonment for debt found in article I, section 17 of the Washington Constitution, and argues that imprisonment for failing to pay legal financial obligations violates that strong prohibition. It then discusses how case law has degraded article I, section 17, making …
Divorce Equality, Allison Anna Tait
Divorce Equality, Allison Anna Tait
Washington Law Review
The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic …
Campbell As Fair Use Blueprint?, Pierre N. Leval
Campbell As Fair Use Blueprint?, Pierre N. Leval
Washington Law Review
Friends, copyright geeks, I come not to bury Campbell, but to praise it. I might reasonably be considered a biased critic as Campbell took a number of suggestions from an article I wrote. Biased or not, I submit Campbell is a beautifully reasoned opinion, which has demonstrated in its twenty-one years that it provides a healthy framework for fair use analysis. That framework promotes the overall objectives of copyright; it protects the interests of rights holders; and it guards against putting “manacles upon science.”
Market Effects Bearing On Fair Use, Jeanne C. Fromer
Market Effects Bearing On Fair Use, Jeanne C. Fromer
Washington Law Review
Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work. The Supreme Court’s decision just over twenty years ago in Campbell v. Acuff-Rose Music, Inc. opened the door to a laudable analytical framework for the bearing of market effects on fair use. First, Campbell supports a …
How Much Is Too Much?: Campbell And The Third Fair Use Factor, R. Anthony Reese
How Much Is Too Much?: Campbell And The Third Fair Use Factor, R. Anthony Reese
Washington Law Review
The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc. is probably best known for articulating the importance of transformativeness in analyzing fair use claims. The opinion gave less-noticed but important guidance on the third statutory fair use factor, which looks at the amount and substantiality of the portion of the plaintiff’s copyrighted work that the defendant used. Campbell explained that courts should evaluate this factor by inquiring whether the amount the defendant used was reasonable in light of her purpose. This Article examines the appellate fair use decisions since Campbell to investigate whether and how lower courts have used …
Content, Purpose, Or Both?, Rebecca Tushnet
Content, Purpose, Or Both?, Rebecca Tushnet
Washington Law Review
Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of …
Campbell At 21/Sony At 31, Jessica Litman
Campbell At 21/Sony At 31, Jessica Litman
Washington Law Review
When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …
"The Shameful Wall Of Exclusion": How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, Jessica Knowles
"The Shameful Wall Of Exclusion": How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, Jessica Knowles
Washington Law Review
Although solitary confinement is conventionally challenged under the “cruel and unusual” standard of the Eighth Amendment, this approach presents several intractable legal hurdles to successful claims. The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and its precursor, the Rehabilitation Act, provide innovative and non-constitutional causes of action for inmates with mental illness1 to challenge their solitary confinement. It is estimated that at least thirty percent of inmates in solitary confinement are mentally ill, a high percentage that is due to both the disproportionate number of mentally ill inmates who are isolated from the general prison population …
The Imaginary Trademark Parody Crisis (And The Real One), William Mcgeveran
The Imaginary Trademark Parody Crisis (And The Real One), William Mcgeveran
Washington Law Review
In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and …
Fair Use: An Affirmative Defense?, Lydia Pallas Loren
Fair Use: An Affirmative Defense?, Lydia Pallas Loren
Washington Law Review
The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc. solidified the treatment of fair use as an affirmative defense. However, treating fair use as an affirmative defense shifts the burden to the defendant while in most fair use cases plaintiffs are able to easily prove a prima facie case of infringement. This Article identifies that, despite its decision in Campbell, the Supreme Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. In fact, as explored in this …
Foreword: Fair Use In The Digital Age, And Campbell V. Acuff-Rose At 21, Zahr K. Said
Foreword: Fair Use In The Digital Age, And Campbell V. Acuff-Rose At 21, Zahr K. Said
Washington Law Review
If Campbell had remained a narrow pop-culture case—a doctrinal one-hit wonder—it would not have possessed the capacity to generate so much enthusiasm, and such heated debate, among scholars and practitioners of high caliber. Yet gathered at the University of Washington School of Law for two days in April 2015 were forty of the leading and emerging experts in copyright law in the United States, to discuss the impact the case has had and to speculate about the directions fair use law will take in light of this watershed opinion. It remains, by many accounts, one of the three most important …
Possible Futures Of Fair Use, Pamela Samuelson
Possible Futures Of Fair Use, Pamela Samuelson
Washington Law Review
This Article celebrates the twenty-one-year majority status of Campbell v. Acuff-Rose Music, Inc. Campbell has unquestionably had transformative impacts on the doctrine of fair use in U.S. copyright case law, making several significant contributions that go well beyond the Court’s endorsement of the “transformative” nature of a use as tipping in favor of fairness. Several notable cases have built upon the analytical foundation established in Campbell. This Article also considers possible futures of fair use. What will fair use look like twenty-one years from now? Will it stay much as it is right now, or will it change, and …
A New Generation Of Class Action Cy Pres Remedies: Lessons From Washington State, Cecily C. Shiel
A New Generation Of Class Action Cy Pres Remedies: Lessons From Washington State, Cecily C. Shiel
Washington Law Review
The use of cy pres as a mechanism to distribute residual funds in class actions has become increasingly common and the subject of much controversy. In the class action context, cy pres is an equitable remedy used by courts to appropriate class action settlement funds remaining after all identified class parties have been compensated to the funds’ “next best use,” usually to a charity. The controversy has stemmed primarily from a lack of clear judicially enforced standards on how and when to use cy pres. In light of recent controversy, both the Federal Rules Committee, and potentially the Supreme Court, …
Washington's Reproductive Privacy Act: An Interpretation And Constitutional Analysis, Ross Tanaka
Washington's Reproductive Privacy Act: An Interpretation And Constitutional Analysis, Ross Tanaka
Washington Law Review
In Roe v. Wade, the Supreme Court declared that the “zone of privacy” inherent in the liberty component of the Due Process Clauses protected a woman’s right to choose when to terminate her pregnancy. Nevertheless, in the years following Roe, the Court held that the right of choice did not include a right to state assistance in obtaining an abortion. After decisions such as Webster v. Reproductive Services and Maher v. Roe, the state may express its preference for childbirth by denying the use of its funds, facilities, and personnel for abortion. Although a majority of the …
Rethinking Virtual Currency Regulation In The Bitcoin Age, Kevin V. Tu, Michael W. Meredith
Rethinking Virtual Currency Regulation In The Bitcoin Age, Kevin V. Tu, Michael W. Meredith
Washington Law Review
This Article investigates an increasingly important yet under-developed body of law: regulation of virtual currency. At its peak in March of 2014, the daily volume of Bitcoin transactions in United States dollars exceeded $575,000,000. The growing mainstream acceptance of Bitcoin, however, is best illustrated by the growing number of leading merchants that have decided to accept Bitcoin payments. While Bitcoin’s rise as an alternative payment method is well-chronicled, Bitcoin’s impact extends further due to its use as an investment vehicle and its ability to spur the growth of an industry of Bitcoin-based businesses. Despite increasingly widespread use, Bitcoin (and other …
Forever Evergreen: Amending The Washington State Constitution For A Healthy Environment, Devra R. Cohen
Forever Evergreen: Amending The Washington State Constitution For A Healthy Environment, Devra R. Cohen
Washington Law Review
Pollution poses an ongoing threat to the health and welfare of the citizens of Washington State. Air pollution costs Washington approximately $190 million per year, ocean acidification is contributing to oyster die-offs, and approximately 677,000 acres of land are affected by area-wide soil contamination. Although Washington has aspirational environmental legislation and a narrowly defined duty under article XVII of the Washington State Constitution to protect navigable waters, their shores and tidelands, the State needs to do more if its citizens—present and future—are going to enjoy a healthy environment. Amending the Washington State Constitution to include an extended public trust doctrine …
A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis
A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis
Washington Law Review
Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same …
A Shifting Landscape For Shifting Fees: Attorney-Fee Awards In Patent Suits After Octane And Highmark, Darin Jones
A Shifting Landscape For Shifting Fees: Attorney-Fee Awards In Patent Suits After Octane And Highmark, Darin Jones
Washington Law Review
Section 285 of the Patent Act authorizes courts to award attorney fees to the prevailing party in patent litigation in “exceptional cases.” Until recently, interpretation of § 285 had been governed by a highly restrictive formulation set forth by the United States Court of Appeals for the Federal Circuit. In April 2014, the United States Supreme Court released a pair of decisions—Octane Fitness v. ICON Health & Fitness, and Highmark Inc. v. Allcare Health Management System, Inc.—that rejected the Federal Circuit’s interpretation of § 285 and reinvigorated the potential for fee shifting in patent suits. This Note …
Revisiting Claim And Issue Preclusion In Washington, Kathleen M. Mcginnis
Revisiting Claim And Issue Preclusion In Washington, Kathleen M. Mcginnis
Washington Law Review
When it comes to the law of claim and issue preclusion, Washington courts and practitioners encounter rules and precedent that tend to be unnecessarily complicated, overly broad, and even—in some instances—simply wrong. Three decades ago, Professor Philip Trautman urged Washington courts to clarify and modernize the doctrine. A fresh look at the topic suggests that while courts have been receptive to the professor’s advice, the goal of a clear and usable body of preclusion law will require more work. Specifically, Washington courts should address three problems. First, they should simplify the test for claim preclusion, eliminating redundant and confusing elements …
Public Records In Private Devices: How Public Employees' Article I, Section 7 Privacy Rights Create A Dilemma For State And Local Government, Philip Paine
Washington Law Review
The Washington Public Records Act (PRA or “the Act”) is a wide-ranging law that heavily weighs in favor of public disclosure of government processes. Initially enacted as a citizen initiative in 1972, the Act has many beneficial uses. For example, it provides insight into a local government’s decision-making process and ensures that citizens have access to their own government. However, the PRA’s potential to be used to invade personal privacy raises significant constitutional concerns. When an employee in possession of a public record invokes the protection of article I, section 7 of the Washington State Constitution, which protects an individual’s …
Removal Jurisdiction Over Mass Actions, Mallory A. Gitt
Removal Jurisdiction Over Mass Actions, Mallory A. Gitt
Washington Law Review
The mass action provision in the Class Action Fairness Act of 2005 provides a federal forum for certain state court litigation that resembles class actions but otherwise could not be removed. The provision is triggered when state court plaintiffs propose a joint trial of common legal or factual issues. But defining what constitutes that triggering event has proved difficult for federal courts. They have not used a uniform framework to determine when they have subject matter jurisdiction over the purported mass action, and have lacked a common interpretation of the statutory language to begin the inquiry. That lack of coherence …