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Articles 1 - 30 of 93
Full-Text Articles in Law
Amended Complaints Post-Twiqbal: Why Litigants Should Still Get A Second Bite At The Pleading Apple, Dane Westermeyer
Amended Complaints Post-Twiqbal: Why Litigants Should Still Get A Second Bite At The Pleading Apple, Dane Westermeyer
Washington Law Review
The Supreme Court’s landmark decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had a serious effect on the way that Rule 12(b)(6) Motions to Dismiss are handled in federal courts across the country. In the five years since Iqbal was handed down, scholars and practitioners alike have discussed the merits and effects of this decision at length. However, there has been very little—if any—discussion on the relationship between amended complaints and original complaints when it comes to this newly-minted plausibility standard. This Comment aims to examine and critique a post-Twiqbal practice regarding amended complaints that …
Foreword: Compensated Surrogacy In The Age Of Windsor, Kellye Y. Testy
Foreword: Compensated Surrogacy In The Age Of Windsor, Kellye Y. Testy
Washington Law Review
The authors in this timely symposium tackle the many and varied issues related to compensated surrogacy with sophisticated, diverse, and careful analysis. Moreover, they do so in the context of fast-paced legal and sociological change on issues of marriage and parenting, some of which was crystalized in the recent United States v. Windsor decision that spurred growing recognition of gay marriage and families across the nation.
Windsor, Surrogacy, And Race, Khiara M. Bridges
Windsor, Surrogacy, And Race, Khiara M. Bridges
Washington Law Review
Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. …
The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti
The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti
Washington Law Review
Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which …
The Future Of Compensated Surrogacy In Washington State: Anytime Soon?, Terry J. Price
The Future Of Compensated Surrogacy In Washington State: Anytime Soon?, Terry J. Price
Washington Law Review
Americans in the mid-1980s were shocked by the facts of the Baby M case. That case, a compensated surrogacy arrangement that publicly went very wrong, raised complicated issues that the country had not considered: whether a woman could contract to carry a pregnancy for another person without becoming the legal mother; whether she could be separated from the child at birth, even though it was her genetic offspring; and whether the contract could take precedence over a mother’s regret over giving up the child. As a result of that case, a number of states, including Washington, prohibited compensated surrogacy arrangements. …
Straddling The Columbia: A Constitutional Law Professor's Musings On Circumventing Washington State's Criminal Prohibition On Compensated Surrogacy, Peter Nicolas
Washington Law Review
In this Article, I recount—through both the prisms of an intended parent and a constitutional law scholar—my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State’s criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization. Part …
Bearing Children, Bearing Risks: Feminist Leadership For Progressive Regulation Of Compensated Surrogacy In The United States, Sara L. Ainsworth
Bearing Children, Bearing Risks: Feminist Leadership For Progressive Regulation Of Compensated Surrogacy In The United States, Sara L. Ainsworth
Washington Law Review
Compensated surrogacy—an arrangement in which a woman carries and gives birth to a child for someone else in exchange for money—intimately affects women. Yet, feminist law reformers have not led efforts to regulate this practice in the United States. Their absence is notable given the significant influence of feminist lawmaking in a host of other areas where women’s interests are at stake. This lack of feminist law reform leadership can be understood, however, in light of the complex issues that surrogacy raises—complexity that has long divided feminists. In response to efforts to pass surrogacy legislation in Washington State in 2010, …
Compensated Surrogacy, Martha A. Field
Compensated Surrogacy, Martha A. Field
Washington Law Review
The question that was put to us is whether the widespread legalization of gay marriage, supported by the Supreme Court’s decision in United States v. Windsor, means that compensated surrogacy should be more broadly legalized. This essay takes the position that Windsor has little relevance to surrogacy, which will continue to be governed by state rather than federal law. States do, and will, follow a wide spectrum of policies on surrogacy, ranging from banning it and making it illegal to promoting it by enforcing surrogacy contracts as ordinary commercial transactions. The legalization of gay marriage need not affect states’ …
For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro
For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro
Washington Law Review
Feminists have long been engaged in the debates over surrogacy. During the past thirty years, thousands of women throughout the world have served as surrogate mothers. The experience of these women has been studied by academics in law and in the social sciences. It is apparent that if properly conducted, surrogacy can be a rewarding experience for women and hence should not be objectionable to feminists. Improperly conducted, however, surrogacy can be a form of exploitation. Compensation is not the distinguishing factor. In this essay I offer two changes to law that would improve the surrogate’s experience of surrogacy. First, …
Racial Impact Statements: Considering The Consequences Of Racial Disproportionalities In The Criminal Justice System, Jessica Erickson
Racial Impact Statements: Considering The Consequences Of Racial Disproportionalities In The Criminal Justice System, Jessica Erickson
Washington Law Review
The American criminal justice system is currently suffering from a dramatic increase in mass incarceration and staggering rates of racial disproportionalities and disparities. Many facially neutral laws, policies, and practices within the criminal justice system have disproportionate impacts on minorities. Racial impact statements provide one potential method of addressing such disproportionalities. These proactive tools measure the projected impacts that new criminal justice laws and policies may have upon minorities, and provide this information to legislators before they decide whether to enact the law. Four states currently conduct racial impact statements, and other states are considering adopting their own versions. The …
Consignment Catastrophes: Lessons From New York's Art Gallery Fraud, Megan Haslach
Consignment Catastrophes: Lessons From New York's Art Gallery Fraud, Megan Haslach
Washington Journal of Law, Technology & Arts
The 2007 collapse of Salander O’Reilly Gallery in New York City caught the attention of New York’s state lawmakers after artists and their heirs lost nearly $120 million in gallery owner Lawrence Salander’s schemes. This scandal ultimately led lawmakers to enact major changes in the state’s art consignment statute. The changes bolstered existing protections while adding additional safeguards for artists who choose to consign their works through galleries rather than selling them wholesale. This Article will examine the relationship between consignors and consignees, highlighting major vulnerabilities that current consignment statutes create for artist consignors. In Section I, this Article will …
Framing The Issue: Avoiding A Substantial Similarity Finding In Reproduced Visual Art, Rachael Wallace
Framing The Issue: Avoiding A Substantial Similarity Finding In Reproduced Visual Art, Rachael Wallace
Washington Journal of Law, Technology & Arts
Copyright issues are litigated in the United States every day. Yet attorneys representing visual artists settle suits more often when those suits involve the potential of a copyright infringement, partly because of the relatively few decisions on the matter. In Harney v. Sony Pictures, Inc., the First Circuit found that a copyrighted photograph could be copied to look nearly the same as the original because the copied elements were each unprotectable under the copyright. The copyright protected only those elements of the photo that were the result of the photographer’s choices in depicting the subject. The court held that …
The Not So Speedy Trial Act, Shon Hopwood
The Not So Speedy Trial Act, Shon Hopwood
Washington Law Review
The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public’s significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA’s goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been …
Keeping Up With Technology: Why A Flexible Juvenile Sexting Statute Is Needed To Prevent Overly Severe Punishment In Washington State, Reid Mcellrath
Keeping Up With Technology: Why A Flexible Juvenile Sexting Statute Is Needed To Prevent Overly Severe Punishment In Washington State, Reid Mcellrath
Washington Law Review
Sexting can be a costly activity, particularly for teenagers. As more teenagers engage in sending sexually explicit images to one another, the likelihood of serious long-term consequences increases. When sexting is used as a means to bully, the potential severity of consequences also increases. In many jurisdictions, prosecutors may charge juveniles caught sexting with possession or distribution of child pornography. At the same time, some states have recognized the severity of such a charge and found other ways of addressing the teen sexting problem. This Comment addresses the current issues surrounding juvenile sexting by examining empirical data, legal responses, and …
This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn Stanchi, Deirdre Bowen
This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn Stanchi, Deirdre Bowen
Washington Law Review
The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true. This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …
Getting Beyond Abstract Confusion: How The United Kingdom's Jurisprudence Can Aid In Developing An Analytic Framework For Patent-Eligibility In Light Of Alice V. Cls Bank, Brendon Beheshti
Washington Journal of Law, Technology & Arts
This Article advocates consideration of the United Kingdom’s jurisprudence as persuasive authority for implementation of a new framework for analysis of subject matter eligibility of computer-implemented inventions in light of the United States Supreme Court’s ruling in Alice Corp. v. CLS Bank International. The U.K.’s patent jurisprudence provides a more developed and clear analytic framework that conforms to the policy objectives of Alice, while also avoiding the conceptual problem of determining what is “abstract.” The result is a more useful and concrete analytic framework that also reduces conflicts of laws, and thus can help spur innovation across the …
Hologram Images And The Entertainment Industry: New Legal Territory?, Stephen Anson
Hologram Images And The Entertainment Industry: New Legal Territory?, Stephen Anson
Washington Journal of Law, Technology & Arts
Modern technology allows for the holographic reproduction of a dead artist’s likeness, with the ability to perform past classic works or new original artistic works. The Coachella Valley Music and Arts Festival performance by the “holographic” Tupac Shakur in April 2012 dazzled an excited crowd and made the idea of bringing back deceased musical celebrities or other public personalities a reality. The use of such holographic performances is in its infancy, but the potential for possible intellectual property infringement is real and concerns the areas of copyright, trademark, and–most importantly–the right of publicity, which protects a celebrity’s name, likeness, voice …
Solving Jurisdiction's Social Cost, Dustin E. Buehler
Solving Jurisdiction's Social Cost, Dustin E. Buehler
Washington Law Review
Federal court subject-matter jurisdiction rules incur a significant social cost—when jurisdiction is found lacking, courts must dismiss, no matter how many years and resources the parties have spent on the case. Indeed, hundreds of belated jurisdictional dismissals occur each year after parties have already engaged in discovery, dispositive motions, or even trial. Federal judges tolerate this waste largely because they view nonwaivable jurisdictional rules as a function of structural values rooted in the Constitution, rather than efficiency concerns. In contrast, scholars tend to focus primarily on efficiency arguments while discussing jurisdictional nonwaivability, de-emphasizing important structural interests. Both theories are overly …
Outsourcing Corporate Accountability, Kishanthi Parella
Outsourcing Corporate Accountability, Kishanthi Parella
Washington Law Review
This Article addresses the problem of preventing human rights violations abroad that result from the globalization of business. It specifically explores the challenge of improving labor standards in global value chains. The modern business has changed dramatically and has “gone global” in order to court foreign markets and secure resources, including labor. Familiar household names, such as Nike and Apple, have “outsourced” many of their functions to suppliers overseas. As multinational buyers, they dominate one end of the global value chain. At the opposite end of the value chain are the local managers and owners of the factories and workhouses …
The Legal Ethics Of Real Evidence: Of Child Porn On The Choirmaster's Computer And Bloody Knives Under The Stairs, Gregory C. Sisk
The Legal Ethics Of Real Evidence: Of Child Porn On The Choirmaster's Computer And Bloody Knives Under The Stairs, Gregory C. Sisk
Washington Law Review
With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention. Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, …
Miller'S Promise: Re-Evaluating Extreme Criminal Sentences For Children, Nick Straley
Miller'S Promise: Re-Evaluating Extreme Criminal Sentences For Children, Nick Straley
Washington Law Review
Scientific, legal, and societal notions about youth have come together to reaffirm an age-old concept—children are different and they change as they grow older. In recent decisions, the United States Supreme Court has required courts and legislatures to take a new look at extreme criminal sentences imposed upon children. Life without parole sentences and decades-long, determinate sentences are constitutionally suspect when applied to children because they fail to adequately account for the dynamism of youth. Miller v. Alabama and Graham v. Florida announced two important principles: (1) that an extreme sentence can only be imposed upon a child following an …
Drafting Agreements As An Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223, Caitlin Park Shin
Drafting Agreements As An Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223, Caitlin Park Shin
Washington Law Review
This Comment argues that Washington State Bar Association Advisory Opinion 2223 (WSBA Advisory Opinion 2223) should be revisited. WSBA Advisory Opinion 2223 reaches the unqualified conclusion that an attorney-mediator violates the Washington Rules of Professional Conduct (RPC) when drafting legal documents such as Property Settlement Agreements, Orders of Child Support, or Parenting Plans for unrepresented parties. WSBA Advisory Opinion 2223 creates confusion because it contains two significant flaws: (1) an omission of relevant comments to the RPC, and (2) an inconsistent reliance on extra-jurisdictional authority. Given WSBA Advisory Opinion 2223’s practical ramifications, the opinion should be reconsidered. Reexamining this opinion …
Climate Variability, Land Ownership And Migration: Evidence From Thailand About Gender Impacts, Sara R. Curran, Jacqueline Meijer-Irons
Climate Variability, Land Ownership And Migration: Evidence From Thailand About Gender Impacts, Sara R. Curran, Jacqueline Meijer-Irons
Washington Journal of Environmental Law & Policy
Scholars point to climate change, often in the form of more frequent and severe drought, as a potential driver of migration in the developing world, particularly for places where populations rely on agriculture for their livelihoods. To date, however, there have been few large-scale, longitudinal studies that explore the relationship between climate change and migration. This study significantly extends current scholarship by evaluating distinctive effects of climatic variation and models these effects on men’s and women’s responsiveness to drought and rainfall. Our study also investigates how land ownership moderates these effects. We find small, but significant, increases in migration above …
Cercla Apportionment Following Burlington Northern: How Joint And Several Liability Still Thrives—To The Surprise Of Many, Ryan Brady
Washington Journal of Environmental Law & Policy
Courts have generally held parties who are responsible for hazardous waste jointly and severally liable for that harm under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On rare occasions, parties have shown a reasonable basis for apportionment of the harm and avoided joint and several liability. However, in 2009, the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. United States upheld an apportionment of harm based on a seemingly lower standard of evidence than courts have required in the past, potentially lowering the burden on parties to obtain apportionment. This article briefly summarizes Burlington Northern …
Climate Change: Disappearing States, Migration, And Challenges For International Law, Sumudu Atapattu
Climate Change: Disappearing States, Migration, And Challenges For International Law, Sumudu Atapattu
Washington Journal of Environmental Law & Policy
This Article discusses two inter-related issues: the legal implications of climate-induced migration and the phenomenon of ‘disappearing states’ through the lens of four case studies, Kivalina, Inuit, the Maldives, and Tuvalu. As early as 1990, the Intergovernmental Panel on Climate Change (IPCC) recognized that the greatest single impact of climate change may be on human migration. With sea level rise, Small Island States face the prospect of losing their territory. The Article discusses the challenges that these two issues pose for international law.
The Concept Of Species With Constant Reference To Killer Whales, Thomas Wheeler
The Concept Of Species With Constant Reference To Killer Whales, Thomas Wheeler
Washington Journal of Environmental Law & Policy
Watson recognized 182 species, Babington 251, and Bentham only 112. Over 150 years since Darwin’s time, scientists continue to debate what constitutes a species. But while this uncertainty remains unchanged, the law has: the United States has committed to protect individual (endangered) species. What was once merely an academic dispute now carries legal weight under the Endangered Species Act (ESA): recognition of a species can trigger significant economic consequences and non-recognition can doom a species to extinction. This comment examines the scientific roots of taxonomic uncertainty, the legal landscape of the ESA, and the potential unforeseen consequences of the relationship …
Washington's Water Right Impairment Standard: How The Current Interpretation Impedes The State's Policy Of Maximizing Net Benefits, Matthew Rajnus
Washington's Water Right Impairment Standard: How The Current Interpretation Impedes The State's Policy Of Maximizing Net Benefits, Matthew Rajnus
Washington Journal of Environmental Law & Policy
Washington manages water rights under conflicting goals—maximizing net benefits while protecting water rights from any impairment. Over time, the state judiciary, often at the request of the Washington Department of Ecology (Ecology), has elevated the water right impairment standard to an absolute protection. Initially, Division III of the Washington Court of Appeals held that it was proper for Ecology to require a modeled impact of 0.004 percent in river flows, finding that this was substantial and could not be allowed; then, the Washington Supreme Court concluded that any impact constituted impairment; and most recently, the Court paradoxically declared that instream …
Climate Change, Gender Inequality And Migration In East Africa, Medhanit A. Abebe
Climate Change, Gender Inequality And Migration In East Africa, Medhanit A. Abebe
Washington Journal of Environmental Law & Policy
East Africa, one of the most volatile regions in Africa, has been suffering from enormous problems caused by population growth, weak governance, war, and famine. Recently, the advent of climate change has exacerbated these pre-existing problems. These impacts are not felt equally across populations, and, according to various studies, disproportionately affect women. Despite reforms, rural East African women still struggle to access resources or participate in decision-making processes. As a result, they have a weaker ability to adapt to climate change than men. This weaker adaptive capacity influences migration patterns between the genders, and creates its own set of problems. …
Legal Study On The Climate Change-Induced Migrants In China, Deng Haifeng, Zhao Yumin
Legal Study On The Climate Change-Induced Migrants In China, Deng Haifeng, Zhao Yumin
Washington Journal of Environmental Law & Policy
While climate change is a natural phenomenon, it has also caused a series of social problems for human society. One of the most serious repercussions of climate change is the impact on population movements. As the effects of climate change grow exponentially, the number of climate change-induced migrants will also increase. Climate change-induced migrants are individuals who spontaneously or forcibly migrate temporarily or permanently from their hometowns to other regions under the influence of climate policies or climate-related projects. Climate change, either suddenly or gradually, negatively affected these migrants’ living conditions, making it impossible to survive where they were located. …
Exporting Coal, Importing Pollution: Can The Consumption Of Coal Be Ignored Under Nepa And Sepa Analysis When Burned Overseas?, Ross Taylor
Washington Journal of Environmental Law & Policy
The Millennium Bulk Terminal in Longview, Washington, is one of several proposed locations along the west coast of the United States for a large export facility, which would allow large-scale exportation of domestic coal to Asia. The Millennium Bulk Terminal proposal has garnered significant opposition, yet attention is only recently turning to the specific concern over greenhouse gas emissions associated with such a project. This concern stems not just from operation of the facility or transportation to and from it but from the possibly damaging amount of emissions that would result from the coal’s ultimate consumption in Asia. Implicated by …