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Washington Law Review
Journal Prestige (SJR): 0.731

Citation Impact (citeScore): 1
Number of Followers: 2

Free journal
ISSN (Print) 0043-0617
Published by U of Washington

[1 journal]

Breaking Algorithmic Immunity: Why Section 230 Immunity May Not Extend to
Recommendation Algorithms
- Authors: Max Del Real
  Abstract: In the mid-1990s, internet experiences were underwhelming by today’s standards, despite the breakthrough technologies at their core. When a person logged on to the internet, they were met with a static experience. No matter who you were, where you were, or how you accessed a particular website, it rendered a consistent page. Today, internet experiences are personalized, dynamic, and vast—a far cry from the digital landscape of just a few decades ago. While today’s internet is unrecognizable compared with its early predecessors, many of its governing laws remain materially unaltered. In particular, section 230 of the Communications Act, which passed in 1996, remains a critical element of the bedrock upon which the internet has flourished.While the words of section 230’s primary provisions remain unchanged, courts’ applications have somewhat modernized to keep pace with technology. However, recommendation algorithms pose an especially tricky challenge for section 230 analyses. Initially, courts extended section 230 immunity to internet platforms for algorithmic recommendations of third-party information, but a growing cohort of circuit judges are questioning whether that treatment stretches the statute too far. Although the United States Supreme Court had an opportunity to weigh in through Gonzalez v. Google, that case’s disposition ultimately left the issue open. This Comment dives deep into the current section 230 doctrine and examines its application to recommendation algorithms. While multiple theories have emerged that could successfully limit section 230 immunity’s reach to recommendation algorithms, each will have distinct implications for the future of consumer technology. Regardless, there are multiple strategies that can feasibly negate section 230 immunity when the defendant has used recommendation algorithms.
  PubDate: Sun, 19 May 2024 23:00:56 PDT
A Loophole in the Fourth Amendment: The Government's Unregulated
Purchase of Intimate Health Data
- Authors: Rhea Bhatia
  Abstract: Companies use everyday applications and personal devices to collect deeply personal information about a user’s body and health. While this “intimate health data” includes seemingly innocuous information about fitness activities and basic vitals, it also includes extremely private information about the user’s health, such as chronic conditions and reproductive health. However, consumers have no established rights over the intimate health data shared on their devices. Believing that these technologies are created for their benefit, consumers hand over the most intimate aspects of their lives through health-related applications relying on the promise that their data will remain private. Today, the intimate health data of unaware consumers is collected and sold to third-party data brokers who then repackage the data, label it, and sell it to the highest bidder: advertisers, corporations, and most concerning of all—the government and law enforcement agencies. This ability for governmental entities to simply purchase intimate health data from third-party data brokers violates the Fourth Amendment of the United States Constitution.To discourage the overreach of arbitrary law enforcement, the Fourth Amendment protects individuals from unreasonable searches and seizures. Without a warrant, governmental entities may purchase intimate health data from third-party data brokers, constituting an unreasonable search in violation of the Fourth Amendment. This Comment examines the use of third-party data brokers by government agencies to collect and analyze intimate health data. In doing so, this Comment advocates for greater accountability in government data collection practices and proposes legislative solutions to regulating the government’s purchase of intimate health data.
  PubDate: Sat, 24 Feb 2024 22:45:55 PST
When Patent Litigators Become Neurosurgeons
- Authors: Katie Chang
  Abstract: Patent law is where the law meets the most cutting-edge and innovative technology of its time. Usually, subject matter experts, with the help of lawyers, are the ones applying for patents. But when it comes to granting and enforcing patent rights, the job falls onto lawyers and judges, who, for the most part, are likely not experts in the relevant technical field. Bridging the gap between technological expertise and legal expertise has been a pain point in patent litigation, one that Congress has tried to rectify for many years. This Comment primarily examines one of Congress’s solutions—the Patent Pilot Program—and discusses the changes that such a program could have in the event a similar system is implemented in the future. One potential change to note is that such a system should institute a standard set of guidelines and rules for each district to follow when it comes to patent infringement cases. This would ensure more uniformity across federal district jurisprudence in the field.
  PubDate: Wed, 19 Jul 2023 11:11:04 PDT
We Are Never Getting Back Together: A Statutory Framework for Reconciling
Artist/Label Relationships
- Authors: Harrison Simons
  Abstract: Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label relationships are a constant source of industry drama. Taylor Swift’s 2019 feud with her former label and subsequent decision to rerecord her first six albums brought renewed attention to the artist-label relationship and the contracts that often serve as its foundation. While Swift’s own label drama and novel solution worked for her, other artists should not be forced to go to such lengths to regain control of a career they could not have foreseen when they signed their recording contracts.While restructuring the entire music industry will have to wait, lawmakers can and should intervene to protect young talent from the moment they sign a recording contract—this Comment explores how. By young artists, this Comment means those who sign recording contracts as “legal infants,” meaning artists under the age of eighteen. States across the country allow legal infants to contract with recording labels in exchange for a waiver of their right to disaffirm the contract because of their infancy. Building on these statutes, lawmakers across the country should give courts the power to approve recording contracts for short, two-to-three-year periods. In so doing, lawmakers can reinforce existing protections for artists and labels alike while simultaneously creating a mediative framework artists and labels can use to address and solve disputes before their relationship becomes unsalvageable. Should approval lapse, lawmakers, through the courts, would allow young talent to escape an otherwise inhospitable contract while remunerating the label for any provable and valid losses.
  PubDate: Wed, 19 Jul 2023 11:10:54 PDT
Is It Time to Bury Barry' Why an Old Change at the Legislature Requires a
New Look at Washington's Nondelegation Doctrine
- Authors: Daniel A. Himebaugh
  Abstract: Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how these changes in legislative operations may have undermined Barry’s lax approach to the delegation of legislative authority. Washington courts should take a fresh look at the Barry rule in the light of today’s legislative realities. A nondelegation doctrine that better aligns with the activities of the modern Legislature would help preserve the separation of powers in Washington State.
  PubDate: Fri, 23 Sep 2022 10:50:29 PDT
Franco I Loved: Reconciling the Two Halves of the Nation’s Only
Government-Funded Public Defender Program for Immigrants
- Authors: Amelia Wilson
  Abstract: Detained noncitizens experiencing serious intellectual and mental health disabilities are among the most vulnerable immigrant populations in the United States. The Executive Office for Immigration Review’s (EOIR) creation of the National Qualified Representative Program (NQRP) following a class action lawsuit was an important step in finally bringing meaningful protections to this population. The EOIR pledged to ensure government-paid counsel for those facing removal who had been adjudicated “incompetent” by an immigration judge, as well as other protections for those who had been identified as having a “serious mental disorder” but who had not yet been found incompetent. The NQRP is the first of its kind, and the only appointed counsel apparatus in the immigration court system.The year 2023 will mark the NQRP’s tenth anniversary. While the program has expanded significantly over the past decade and seen an increase in federal funding, it continues to be plagued by serious limitations, gaps, and due process defects. I should know. I ran the program from 2016 to 2018.Some of the NQRP’s failings are embedded in the program’s architecture and have therefore existed since its inception; other inequities flow from the evolution of the NQRP over time, and in particular, the development of its two-tiered system of classification of detained noncitizens within the Ninth Circuit, versus those outside of it. The program’s deficiencies impact the due process rights—and safety—of the incompetent respondents the program pledged to safeguard; they also force many legal service providers to make ethically fraught choices as they navigate representation of their clients. And finally, the NQRP’s shortcomings reduce judicial economy and inadvertently create an unequal administration of justice within our immigration courts.In this article, I closely examine data, training material, and federal contract information obtained through two Freedom of Information Act Requests to expose critical distinctions between Franco and the Nationwide Policy. I then explain why the differences matter, and what consequences flow to respondents, their attorneys, and the immigration courts.Finally, I make several recommendations for how to resolve the NQRP’s inequities and weaknesses. The first set of recommendations can be implemented now as EOIR enters into a new federal contractor relationship for management of the NQRP’s nationwide operations. The second set can be instituted at any time, as they are internal EOIR policy decisions that do not require Congressional approval.
  PubDate: Thu, 18 Aug 2022 17:55:40 PDT
The Finality of Unmodified Appellate Commissioner Rulings in Washington
State
- Authors: Aurora R. Bearse
  Abstract: In Washington appellate courts, unelected court commissioners handle most of the motion practice. Some motions are minor and mostly procedural, but other motions touch on the scope of the appeal or its merits. Because commissioners have the power to shape the course of an appeal, the Washington Rules of Appellate Procedure allow parties to internally appeal any commissioner decision to a panel of elected judges, via what is called a “motion to modify” under RAP 17.7. If a panel modifies a commissioner’s ruling, the panel’s decision becomes the final decision of the court on that issue. Similarly, multiple opinions recognize that an unmodified commissioner ruling also becomes the final decision on issues raised in a motion. Nevertheless, at times, appellate panels have ignored or amended earlier unmodified commissioner motion rulings, often without detailed explanation. This Essay explores opinions in which panels considered the court bound by unmodified commissioner rulings and when they did not. It reviews in detail those opinions where panels ignored or altered unmodified commissioner rulings and the reasons panels gave for doing so, if any. And it concludes with a recommendation that absent a clearly articulated and compelling reason, an appellate panel should follow the rule that a commissioner’s unmodified ruling is the court’s own—a concept that this Essay calls “the rule of ruling finality.”
  PubDate: Thu, 14 Apr 2022 14:50:44 PDT
Judicial Discretion Is Advised: The Lack of Discretionary Appointments of
Counsel for Children in Washington State Dependency Proceedings
- Authors: Marisa Forthun
  Abstract: State agencies initiate dependency proceedings when a child is alleged, often due to parental neglect or abuse, to be a dependent of the state. The state must intervene “[w]hen parents do not comply with [Child Protective Services] requirements, or when the state believes the child is at too great a risk to remain at home even if parents were to comply with services.” Dependency proceedings usually take place in juvenile courts and involve the local state agency, the parents, and the child. After the government files a petition alleging circumstances of neglect or abuse, “[t]he court issues temporary orders regarding custody, parental and sibling visits, and services intended to rehabilitate the parents and address the children’s medical, educational, and emotional needs.” Then, the court conducts a hearing to assess the state’s factual allegations. “Depending on the parent’s compliance with the service plan written by the agency and ordered by the court,” the child may return home. However, in some cases the state will also initiate termination proceedings “to permanently terminate the parent’s parental rights . . . and enable the child to be adopted by a new family.”In Washington State, the statutes, case law, court rules, and local practices that govern dependency proceedings do not protect all participants equally—the state and parents are guaranteed the right to an attorney, but not all children are statutorily guaranteed that right. This essay provides a general and brief overview of dependency proceedings and emphasizes the disparity in the right of representation afforded to parents and children appearing in these proceedings. In addition, this paper details a study that observed dependency proceedings across Washington State. The study investigated whether trial courts discretionarily appointed counsel to children on a case-by-case basis pursuant to guidance to do so by the Washington State Supreme Court. It found that, even though trial judges possessed such discretionary power, it was rarely used, and most children were not represented by attorneys. Further, researchers observed that the vast majority of children who were represented by attorneys were guaranteed that right under existing Washington State statutes or afforded it through local county practices.In 2021, the Washington State legislature passed House Bill 1219, which expands and statutorily guarantees attorney representation to children in dependency proceedings who are eight years old or older. This new statute does not grant attorney representation to all children, like statutes in other states already provide for, but it paves a path in that direction.
  PubDate: Wed, 29 Dec 2021 17:00:45 PST
“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra
that Should Be Gone for Good
- Authors: Hugh Spitzer
  Abstract: For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased after an 1893 Harvard Law Review article by Professor James Bradley Thayer, who promoted it as a constitutional rule or standard because he wanted to reduce judicial rejection of progressive legislation. In Washington State, “unconstitutional beyond a reasonable doubt” increased steadily during and after the 1930s but remains controversial. In two opinions, Island County v. State in 1998, and School Districts’ Alliance v. State in 2010, members of the Washington State Supreme Court wrestled with whether it makes sense to invoke an evidentiary standard in constitutional dialogue. In Island County, some asserted that the declaration only meant the Court would not overrule the legislature unless the judges were fully convinced of unconstitutionality after a searching analysis. One called it “simply a hortatory expression” meant as a nod to elected lawmakers. In split School Districts’ Alliance opinions, a majority of the justices criticized the practice. This short Essay argues that “unconstitutional beyond a reasonable doubt” should be permanently erased from the Washington State Supreme Court’s vocabulary because it confuses people, is perhaps a bit disingenuous, and judges should say what they mean. Finally, the Court regularly uses other more workable standards, and those should replace “unconstitutional beyond a reasonable doubt” forever.
  PubDate: Fri, 16 Apr 2021 14:40:45 PDT
Exhaustion of Administrative Remedies in Washington State
- Abstract: The doctrine of exhaustion of administrative remedies requires plaintiffs to exhaust all available administrative appeals before challenging an agency’s action in court. Washington courts describe exhaustion requirements, thresholds, and exceptions with varying degrees of consistency and frequent muddled overlap. Despite the fact that administrative exhaustion widely impacts Washington litigants, the secondary literature on the topic is fairly sparse. And, given the doctrine’s confusing and harsh nature, it can bar judicial review of valid claims. This article aims to address both of these issues. First, we offer a comprehensive review of the doctrine as it currently stands, with the intent of assisting Washington lawyers navigating this tricky area of law. Second, we propose that Washington courts protect valid claims and preserve the integrity of administrative processes by equitably tolling the statute of limitations while a plaintiff pursues administrative remedies.
  PubDate: Fri, 09 Apr 2021 13:45:31 PDT
Washington's One-Size-Fits-All Unemployment Compensation Eligibility
in Cases of Voluntary Separation
- Authors: Julia Fleming
  Abstract: Washington State’s Employment Security Act allows individuals who voluntarily left their jobs to be eligible for unemployment benefits if they quit their position with “good cause.” In structuring this Act, the state’s legislature has confined the definition of good cause to a one-size-fits-all list consisting of eleven circumstances. Consequently, if a situation arises that forces an individual to quit their job, yet does not fall into one of those eleven outlined circumstances, the Employment Security Department will disqualify the individual from receiving unemployment benefits. In comparison with other states’ unemployment laws, Washington’s system is quite limited, allowing no discretion under even the most compelling of circumstances. Such a statutory structure does not allow the state to truly effectuate the Act’s purpose of both providing benefits to those “unemployed through no fault of their own” and “reducing involuntary unemployment and the suffering caused thereby to the minimum.”1 Therefore, Washington’s legislature must act to alleviate this harm and grant individuals the unemployment benefits they deserve. In developing a solution, this Comment compares the good cause unemployment laws of Oregon, North Dakota, and Pennsylvania. Through this analysis, this Comment proposes that Washington repeal its exclusive good cause list and adopt a standard that defines “good cause” as cause of such a necessitous and compelling nature that would force a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, to leave their employment.
  PubDate: Wed, 13 Jan 2021 16:00:58 PST
Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment
- Authors: Grace Egger
  Abstract: Video doorbells have proliferated across the United States and Amazon owns one of the most popular video doorbell companies on the market—Ring. While many view the Ring video doorbell as useful technology that protects the home and promotes safer neighborhoods, the product reduces consumer privacy without much recourse. For example, Ring partners with cities and law enforcement agencies across the United States thereby creating a mass surveillance network in which law enforcement agencies can watch neighborhoods and access Ring data without the user’s knowledge or consent. Because Amazon is not a state actor, it is able to circumvent the due process requirements of the Fourth Amendment. Moreover, through these partnerships, law enforcement agencies may circumvent Fourth Amendment requirements by having Amazon access users’ information for them. This Comment argues Amazon should be recognized as a state actor under the state action doctrine so that Ring users are protected by the Fourth Amendment. As technology develops, the law is playing catch-up. This Comment proposes holding private companies—namely Amazon— to the same standards as state actors in order to protect the privacy of consumers.
  PubDate: Wed, 13 Jan 2021 15:25:49 PST
The Birth of Fertility Fraud: How to Protect Washingtonians
- Authors: Sarah Chicoine
  Abstract: Doctors in multiple states have been accused of using their own sperm to impregnate patients without the patient’s consent. Because most states do not have laws prohibiting fertility doctors from using their own sperm to impregnate their patients, families have not been able to seek meaningful legal remedies. State legislatures enacted new fertility fraud laws to deter, criminalize, and provide a legal civil cause of action to those harmed by these actions—but only after these allegations came to light. If the Washington State Legislature creates a law before any similar allegations come to light in Washington, those patients harmed in Washington will have a civil remedy against fertility doctors, unlike patients in other states. To protect Washington patients from the same legal fate, the legislature needs to act proactively and enact a new law against fertility fraud.
  PubDate: Thu, 22 Oct 2020 21:21:00 PDT
Registering a Home When Homeless: A Case for Invalidating Washington’s
Sex Offender Registration Statute
- Authors: Sarah Kohan
  Abstract: Sex offenders experiencing homelessness face unique challenges in Washington that sex offenders with housing do not. When individuals commit a sex offense, they are required to register as a sex offender by providing the state with a current home address. But what happens if an offender has no home' Currently, Washington’s sex offender registration statute forces sex offenders experiencing homelessness to appear in person weekly at the county sheriff’s office to meet registration requirements. Failing to appear for even one week can result in a charge for failure-to-register as a sex offender. In contrast, the statute requires non-homeless sex offenders to register yearly. While non-homeless registrants usually have one opportunity in a year to be charged with failure-to-register, registrants experiencing homelessness are vulnerable to failure-to-register charges at least fifty-two times a year.Washington courts should invalidate Washington’s sex offender registration statute because of the statute’s harm to registrants experiencing homelessness. Although sex offenders typically do not receive much sympathy from the public, sex offenders experiencing homelessness face serious economic and social challenges. In addition to weekly registration, sex offenders experiencing homelessness carry the burden of worrying about common human necessities such as housing, food, and employment. This Comment argues that the weekly in- person registration requirement for sex offenders experiencing homelessness is harmful and ineffective. This Comment further argues that Washington’s registration statute as applied to individuals experiencing homelessness is unconstitutionally cruel punishment.
  PubDate: Thu, 22 Oct 2020 21:20:53 PDT
Science or Status Quo' Disregard for a Defendant's Mental Illness
in Tort Suits
- Authors: Gabrielle Lindquist
  Abstract: Mental illness is almost never considered when courts determine whether a defendant is liable for a tort. Nearly every United States jurisdiction—Washington state included—declines to offer a modified “reasonable person” standard for negligent tort defendants with mental illnesses or any form of mental illness-based affirmative defense for intentional tort defendants. There is much debate about whether tort law should evolve to accommodate defendants with mental illnesses. This Comment seeks to dive deeper into why that debate persists.Although there are numerous justifications for this current state of tort law, the most common rationalizations given are twofold. First, that the primary principle of tort law is to compensate the injured person. Second, that a mental illness-based affirmative defense or modified negligence standard would be problematic to administer in that the factfinder would not know where to “draw the line.” That is, the judge or juror may have difficulty determining whether a defendant’s mental illness truly contributed to their tortious conduct. Many legal scholars rebut this justification by referencing the existence of a modified negligence standard for children and people with physical disabilities, and the availability of the insanity and/or diminished capacity affirmative defenses in criminal courts.This Comment seeks to provide more insight into the debate by answering the following three questions: (1) Do mental health professionals think it would be possible to “draw the line” and decide whether a defendant qualifies for an affirmative defense or modified negligence standard due to their mental illness' (2) From the perspective of both civil attorneys and mental health professionals, should such a defense and/or negligence standard be available to tort defendants' (3) And would such a defense and/or negligence standard be “workable” in a court of law' These questions are answered in the form of a survey-based research study, and the results indicate a great divide between the opinions of mental health professionals and civil attorneys.Mental health professionals endorse an affirmative defense of mental illness to intentional torts, while civil attorneys oppose both the availability and workability of intentional tort affirmative defenses and oppose a modified negligence standard. These results do not solidify a definitive answer as to whether courts should consider the mental health of tort defendants. Rather, they highlight a significant discrepancy between tort law and psychology. Even though modern psychological and psychiatric knowledge about mental health tells us that mental illness can mitigate tort culpability, courts and state legislators are unwilling to change the status quo. This reticence to change is likely in the interest of upholding traditional principles of tort law, conserving judicial resources and party expenses, and heeding legal workability concerns.
  PubDate: Mon, 06 Jul 2020 10:28:52 PDT
Challenging Presidential Tweets
- Authors: Mallory Barnes-Ohlson
  Abstract: Presidents have tried to control agency behavior for decades. The rise of social media gave the President new and innovative tools for controlling agency behavior. As President Obama demonstrated during his time in office, social media became a platform through which the President could communicate to his constituents, align himself with agency actions he supported, and urge agencies to enact policies he favored. After he was elected in November of 2016, President Donald Trump continued his predecessor’s use of social media to engage with both agencies and the public. Different from his predecessor, however, President Trump and his presidential orders became the focus of a large number of lawsuits within the first year of his presidency. At the same time, President Trump’s use of social media—specifically Twitter— became a vehicle for issuing statements that operate like presidential orders. Tweets, like more traditional forms of presidential orders such as executive orders, may in some instances be challenged in federal court. Because of the likely increase in litigation over presidential orders, and, given the Trump Administration’s proliferation of orders triggering legal challenges, courts should recognize litigants’ ability to bring legal challenges to presidential orders that are tweets. Furthermore, courts should develop a framework for addressing what kinds of tweets can be challenged, and who can challenge them.
  PubDate: Mon, 06 Jul 2020 10:28:48 PDT
Accounting for Environmental Standards
- Authors: Malori M. McGill
  Abstract: A meaningful percentage of the regulation that companies in the United States must follow concerns two distinct topics: accounting and the environment. The values underlying the regulatory framework of securities and the environment are distinct, but they are not wholly opposite. This Comment responds to growing trends of private governance in the area of environmental regulation. Besides federal regulation, a significant portion of environmental regulation touching U.S. companies today remains sourced from and enforced by private standard-setters. Federal accounting regulations are now governed by the Financial Accounting Standards Board (FASB)––a private entity recognized by the Securities and Exchange Commission (SEC)––but almost all federal accounting regulations once found their authority solely in private sources. Mirroring accounting regulation’s history, the federal government may choose to outsource environmental standard-setting to one or more of these already-operating private standard-setters in exchange for their expertise, resources, and recognition.Drawing on parallels from the regulatory history of the accounting industry, this Comment cautions that the purposes of environmental regulation demand a more democratic process. Beginning with an overview of government-created and -outsourced corporations, and turning to a dissection of FASB’s structure under the federal government, this Comment concludes that private environmental standard-setters will face potential legal issues if the government adopts them in a manner similar to FASB’s delegation as the authoritative standard setter. The broad implications of environmental standards and regulations––and the prominent and diverse social values driving them––demand a process more deeply rooted in democracy before they become authoritative law at federal levels.
  PubDate: Mon, 06 Jul 2020 10:28:44 PDT
State Action and Gender (In)Equality: The Untapped Power of
Washington's Equal Rights Amendment
- Authors: Maria Yvonne Hodgins
  Abstract: Washington’s Equal Rights Amendment (ERA) is a powerful legal tool. Its sweeping, protective language triggers the application of an absolute standard of review—a level of review even higher than strict scrutiny. Yet the ERA is underutilized by litigants seeking protection against gender-based discrimination. This may be due to the inconsistencies in the Washington State Supreme Court’s state action jurisprudence. Though the ERA includes the phrasing “under the law,” its plain language does not necessarily support a finding of a state action requirement. The state action doctrine is grounded in federalism and separation of power concerns that are not present at the state level. Therefore, the Washington State Supreme Court is free to construe the amendment as lacking a state action requirement. Despite the ambiguity of the amendment’s text, and the absence of federalism concerns at the state level, the Washington State Supreme Court has interpreted a state action requirement to be implicit within the ERA. The Court’s state action jurisprudence with respect to other constitutional provisions—Washington’s Privacy, Due Process, and Free Speech provisions—is similarly inconsistent and overly reliant on analogous provisions in the U.S. Constitution. These inconsistencies in the state action doctrine restrict the efficacy of provisions such as the ERA. The Washington State Supreme Court must adjust its understanding of the state action requirement, thus enabling the ERA to fill in statutory gaps in protection against sex-based discrimination and become a stronger guardian of gender equality.
  PubDate: Thu, 06 Feb 2020 13:31:07 PST

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