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LAW (843 journals)            First | 1 2 3 4 5     

Showing 801 - 354 of 354 Journals sorted alphabetically
Veredas do Direito : Direito Ambiental e Desenvolvimento Sustentável     Open Access  
Veritas et Justitia     Open Access  
Verstek     Open Access  
Vertentes do Direito     Open Access  
Via Inveniendi Et Iudicandi     Open Access  
Vianna Sapiens     Open Access  
Victoria University of Wellington Law Review     Full-text available via subscription   (Followers: 10)
Villanova Environmental Law Journal     Open Access  
Villanova Law Review     Open Access   (Followers: 1)
Violence Against Women     Hybrid Journal   (Followers: 59)
VirtuaJus - Revista de Direito     Open Access  
Vniversitas     Open Access  
Vox Juris     Open Access  
Waikato Law Review: Taumauri     Full-text available via subscription   (Followers: 7)
Washington and Lee Journal of Energy, Climate, and the Environment     Open Access  
Washington and Lee Law Review     Open Access   (Followers: 2)
Washington Law Review     Free   (Followers: 2)
Washington University Global Studies Law Review     Open Access   (Followers: 7)
Washington University Journal of Law & Policy     Open Access  
Washington University Law Review     Open Access   (Followers: 2)
Wayne Law Review     Free  
Western Journal of Legal Studies     Open Access   (Followers: 1)
Western New England Law Review     Open Access   (Followers: 2)
William & Mary Environmental Law and Policy Review     Open Access   (Followers: 1)
William & Mary Journal of Women and the Law     Open Access   (Followers: 1)
William and Mary Law Review     Open Access   (Followers: 5)
Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice     Open Access  
Wirtschaftsrechtliche Blätter     Hybrid Journal   (Followers: 3)
Wroclaw Review of Law, Administration & Economics     Open Access  
Yale Journal of Law & the Humanities     Open Access   (Followers: 10)
Yale Journal of Law and Technology     Open Access   (Followers: 12)
Yale Journal on Regulation     Full-text available via subscription   (Followers: 19)
Yale Law Journal     Open Access   (Followers: 62)
Yearbook of European Law     Hybrid Journal   (Followers: 19)
Yearbook of International Disaster Law Online     Full-text available via subscription  
Yuridika     Open Access  
Zuzenbidea ikasten : Irakaskuntzarako aldizkaria     Open Access  
交大法學評論     Open Access  

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Washington Law Review
Journal Prestige (SJR): 0.731
Citation Impact (citeScore): 1
Number of Followers: 2  

  Free journal Free journal
ISSN (Print) 0043-0617
Published by U of Washington Homepage  [1 journal]
  • 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
       
  • Save Your Breath: A Constitutional Analysis of the Criminal Penalties for
           Refusing Breathalyzer Tests in the Wake of Birchfield v. North Dakota
    • Authors: Kylie Fisher
      Abstract: Statutes that criminally penalize suspected drunk drivers who refuse to submit to testing of their blood alcohol concentration emerged in a number of states as a way to better enforce implied consent statutes that require drivers submit to such testing. In Birchfield v. North Dakota, the Supreme Court held that statutes that criminally punish individuals for refusing a blood test were unconstitutional but upheld criminal refusal statutes regarding breath tests. Much of the reasoning in the majority’s opinion stemmed from a shallow perception of the invasion that breath tests pose to individual privacy interests. Justice Sotomayor’s dissenting opinion noted that where search warrants are reasonably available, a state’s governmental interest in collecting evidence and promoting safety is lower than the individual privacy interests at stake. This Comment is about post-Birchfield strategies for challenging statutes that criminalize refusal to submit to a breathalyzer test.This Comment approaches the issue from a novel, bottom-up approach that argues individuals will be most successful in challenging criminal refusal statutes in state courts under a substantive due process framework that implicates state constitutional rights. This Comment also sheds light on the underreported and significant issue of criminally punishing individuals whose language barriers or hearing impairments prevent them from fully understanding the consequences of refusing a breath test. While drunk driving is undoubtedly a severe problem that requires regulation, the goal should be to preserve fundamental liberty interests with viable legal and policy alternatives that can effectively curb drunk driving rates.
      PubDate: Fri, 08 Nov 2019 06:06:20 PST
       
  • Privacy's Double Standards: Public Disclosure Tort Case Chart
           (2006-2016)
    • Authors: Scott Skinner-Thompson
      Abstract: This is a chart of public disclosure tort cases analyzed in Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev. 2051 (2018).
      PubDate: Fri, 08 Nov 2019 06:06:14 PST
       
  • You Can’t Save Dead People: The Emerging Battles over Supervised
           Consumption Sites
    • Authors: James Satterberg
      Abstract: The United States is experiencing a drug overdose epidemic of historic proportions. As fatal overdose rates continue to increase, some jurisdictions have sought evidence-based solutions to this public health issue. This Comment concerns one proposed remedy in particular: supervised consumption sites. In a supervised consumption site, drug users are encouraged to consume their own drugs at the facility. Facility staff give drug users clean equipment, teach safe injection techniques, and, most importantly, monitor drug users for symptoms of overdose. If a staff member witnesses an overdose, they act to prevent the overdose from becoming fatal. Research conducted on supervised consumption sites outside the United States has generally concluded that the sites are effective at saving lives, preventing the spread of disease, and eventually leading drug users towards treatment. As of this writing, no supervised consumption sites operate legally in the United States. U.S. jurisdictions that have considered establishing supervised consumption sites face a number of legal hurdles, including the threat of federal prosecution. However, these jurisdictions can take steps to put their proposed supervised consumption sites, and those who will utilize and staff them, in the best possible legal position under their own laws. This Comment focuses on the emerging issue of supervised consumption sites by examining research on supervised consumption sites and its implications for the sites as a public health measure. Specifically, this Comment looks at King County, Washington, which, jointly with the City of Seattle and other entities and organizations, created a detailed plan to establish supervised consumption sites that has faced legal and political challenges. This Comment contrasts King County’s legal hurdles with those faced by San Francisco, California, which also seeks to implement the sites. This Comment makes three recommendations to any jurisdiction seeking to implement the sites: (1) empower public health boards to make decisions in the public interest that are protected from direct referendum, (2) allow public health boards to make decisions in the name of public health unconstrained by criminal law, and (3) if necessary, enact legislation at the state level to exempt supervised consumption sites from state drug laws. Finally, this Comment calls for a change in federal law to allow jurisdictions to legally establish supervised consumption sites.
      PubDate: Fri, 08 Nov 2019 06:06:11 PST
       
  • Jevic's Promise: Procedural Justice in Chapter 11
    • Authors: Pamela Foohey
      Abstract: This piece is a response to Jonathan C. Lipson, The Secret Life of Priority: Corporate Reorganization after Jevic, 93 Wash. L. Rev. 631 (2018).
      PubDate: Fri, 08 Nov 2019 06:06:08 PST
       
  • Beyond Corporate Contract: A Response to Helen Hershkoff & Marcel Kahan,
           Forum-Selection Provisions in Corporate 'Contracts'
    • Authors: Verity Winship
      Abstract: This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018).
      PubDate: Fri, 08 Nov 2019 06:06:06 PST
       
  • Response to Professor Rosenbloom: Fifty Shades of Gray Infrastructure:
           Land Use and the Failure to Create Reslient Cities, 93 Wash. L. Rev. 317
           (2018)
    • Authors: Roberta F. Mann
      Abstract: This piece is a response to Jonathan Rosenbloom, Fifty Shades of Gray Infrastructure: Land Use and The Failure to Create Resilient Cities, 93 Wash. L. Rev. 317 (2018).
      PubDate: Fri, 08 Nov 2019 06:06:03 PST
       
  • Privacy Commitments
    • Authors: Rachel Wilka
      Abstract: What responsibilities do corporations have with regard to their consumers’ information' Many articles have looked at ways to make personal information the “property” of the consumer. Property approaches attempt to overlay personal information on the legal frameworks of trade secret, trademark, and copyright law. While each approach has its merits, and contributes to the field, none of the proposals generate a concrete way for a consumer to enforce his or her rights against a company. The proposals all suffer from the same fatal flaw, a new system must not just create a consumer right but also balance the inequities in bargaining power between a consumer and a large corporation. In patent law, there are similar conflicts of interest between a private property owner’s (patent holder’s) right to create a successful business and the ability of others (potential patent licensees) to negotiate a reasonable royalty rate. In response to this conflict, the patent field relies upon a self-regulatory system where patent holders agree to be “Reasonable and Non-Discriminatory” in their licensing practices. This system produces two concrete benefits. First, it helps correct the power imbalance between two negotiating parties. Second, it creates a third-party breach of contract right for a party who could not normally bring a case. As a process, a patent holder agrees to Reasonable and Non-Discriminatory practices (“RAND”) with a standards-setting organization. Then, if the patent holder does not reasonably license their patent to a third party who wishes to negotiate for said license, the third party can sue the patent holder, even though the two parties never finalized an agreement. This paper argues a similar system would lend much-needed structure to online data use. Creating a voluntary, quasi-self-regulatory regime would allow greater transparency as to corporate data practices, facilitate the creation of industry standards as to “reasonable” data use, balance the interests of corporation and consumer, and create a legal right for consumers who have had their personal data misused (in a way that could more easily support a classaction). The paper proceeds in four parts. The first part looks at current norms of data use and the issues a proposed system would need to address. The second part reviews and summarizes past intellectual property approaches to privacy, as well as each approach’s respective drawbacks. The third part examines RAND commitments and their operation in the realm of patent law. The fourth part discusses a system for implementing RAND commitments in privacy law, and addresses potential benefits and drawbacks of the approach.
      PubDate: Fri, 08 Nov 2019 06:06:01 PST
       
  • Radical Jurisprudence
    • Authors: Benjamin Gould
      Abstract: A neighbor digs a ditch on his side of a property line, exposing root systems from two of the adjoining landowner’s trees. The neighbor then cuts off the exposed roots, leaving the trees unsupported and in danger of falling onto the house of their owner. Is the root cutter liable to the owner of the tree' The Washington Court of Appeals recently answered this question in Mustoe v. Ma. The Mustoe Court held that when a root-cutting neighbor removed encroaching tree roots, he owed no duty to the tree owner “to act in good faith and to act reasonably so as not to prevent damage to the trees.” And so the root cutter could not be held liable for that damage. This holding, though perhaps trivial-seeming, turns out to have troubling consequences. On a practical level, it gives the malicious a powerful weapon to wield against their neighbors. On the level of legal doctrine, the court’s analysis unsettles Washington’s law of nuisance. In what follows, I will summarize the facts of the case and the court of appeals’ holding, and then turn to how and why the court of appeals got the case wrong. I will close with some suggestions about how the court of appeals should have decided the case.
      PubDate: Fri, 08 Nov 2019 06:05:58 PST
       
 
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