Showing papers in "Washington Law Review in 2003"

Recognizing the Societal Value in Information Privacy

Abstract: Much has been written about database privacy in the Internet Age, most of it critical of the way in which the American legal system addresses the issue. In this article, Professor Nehf maintains that one of the fundamental difficulties with the public policy debates is that information privacy is often discussed as a typical consumer problem rather than a problem of more general societal concern. As a result, arguments over appropriate resolutions reduce to a balancing of individual rights against more general societal interests, such as increased efficiency in law enforcement, government operations or commercial enterprise. Although privacy scholars discussed the "societal value" of information privacy in the 1960s and early 1970s, the concept was not fully developed. More recently, political theorists have revived the idea and argue the importance of recognizing privacy as a societal norm. Professor Nehf adopts a functional analysis that compares information privacy to other societal values, such as environmental protection, and concludes that privacy policy could take a different form if the issue were viewed in this way.

Researcher liability for negligence in human subject research: informed consent and researcher malpractice actions.

Abstract: Two sets of federal regulations, the "Common Rule" and Food and Drug Administration (FDA) regulations, govern human subject research that is either federally-funded or involves FDA regulated products. These regulations require, inter alia, that: (1) researchers obtain informed consent from human subjects, and (2) that an Institutional Review Board (IRB) independently review and approve the research protocol. Although the federal regulations do not provide an express cause of action against researchers, research subjects should be able to bring informed consent and malpractice actions against researchers by establishing a duty of care and standard of care. Researchers owe human subjects a duty of care analogous to the special relationship between physicians and patients. The federal regulations should provide the minimum standard of care for informed consent in human subject research, and complying with them should be a partial defense. In contrast, expert testimony should establish the standard of care for researcher malpractice, and IRB approval should be a partial defense.

Intergovernmental cooperation, metropolitan equity, and the new regionalism

Abstract: The economic gap between affluent suburbia and the urban core has recently received widespread attention among state and local government law scholars. Although the underlying normative arguments rest on very different rationales, scholars with a wide range of doctrinal approaches appear to have formed a consensus that the current concentration of wealth and resources in metropolitan areas is unacceptable. Their common goal of reducing regional disparities has made the scholarly dialogue a dispute over how, rather than whether, to achieve a better distribution. For many of what can be described as the \"New Regionalist\" scholars, voluntary intergovernmental cooperative efforts may appear to offer the potential to accomplish many of their stated goals. This Article examines the common types of intergovernmental cooperative efforts and concludes that they fail to correct, and often exacerbate, the socioeconomic gap. Thus, the regionalist agenda must be reworked to take account of the negative impacts that many of the highly touted regional governance efforts actually produce in metropolitan areas.

Back to Prima Paint Corp. v. Flood & Conklin Manufacturing Co. : To Challenge an Arbitration Agreement You Must Challenge the Arbitration Agreement

Abstract: The Federal Arbitration Act (FAA) requires courts to order parties in a dispute arising out of a commercial contract containing an arbitration provision to proceed to arbitration unless the formation or performance of the arbitration agreement itself is at issue. In 1967, the U.S. Supreme Court held in Prima Paint Corp. v. Flood & Conklin Manufacturing Co. that under the FAA, courts, instead of arbitrators, should resolve claims for fraudulent inducement of arbitration agreements. However, courts were not permitted to resolve claims for fraud in the inducement of the underlying commercial contracts. The Court also held that when deciding whether to enforce an arbitration agreement, a court should only consider the issues related to making and performing that agreement. The federal circuit courts have applied Prima Paint in two ways. The Third, Ninth, and Eleventh Circuits have held that a court may consider a claim that a commercial contract containing an arbitration agreement is void, even if the party has not alleged that the arbitration agreement is invalid. In contrast, the Fifth and Sixth Circuits have held that alleging that a contract is void is not enough to put the contract's arbitration agreement at issue under the FAA and Prima Paint. This comment argues that to put an arbitration agreement at issue a party should specifically plead that it is invalid. A mere allegation that the underlying commercial contract is void is insufficient because federal law encourages arbitration and treats arbitration agreements as severable from the contracts in which they are included. Only if a court finds that an arbitration clause is merely a part of the underlying commercial contract should the court resolve a claim that the contract is void. In 1925, Congress passed the United States Arbitration Law codified as the Federal Arbitration Act (FAA).' The FAA was Congress' response to the reluctance of federal courts to enforce arbitration agreements.2 The FAA requires courts to order arbitration of a dispute arising out of a contract containing an arbitration provision unless the formation or performance of the arbitration agreement is not in issue Since then, arbitration of controversies arising out of maritime and commercial transactions has become an increasingly popular means of dispute resolution. However, it is common for the parties to arbitration agreements to challenge the validity of the agreements in a judicial forum. The challenges are especially common when a commercial or 1. 9 U.S.C. §§ 1-16 (2000). 2. See Julius H. Cohen & Kenneth Dayton, The New Federal Arbitration Law, 12 VA. L. REV. 265, 265 (1926) (noting that the FAA \"reversed the hoary doctrine that agreements for arbitration are revocable at will and are unenforceable\"). 3. See 9 U.S.C. § 4; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403 (1967). Washington Law Review maritime contract contains broad boilerplate language mandating arbitration of \"any controversy or claim arising out of or relating to [the] contract.\"4 In many cases, the party that wants to avoid arbitration asserts that the arbitration agreement is invalid merely because the underlying contract is deficient. Lower federal courts have reached different conclusions as to whether a federal court or an arbitrator should resolve these challenges in light of the relevant provisions of the FAA5 and the U.S. Supreme Court's decision in Prima Paint Corp. v. Flood & Conklin Manufacturing Co.6 The FAA is a powerful statute that governs enforceability of the majority of commercial arbitration agreements throughout the nation and preempts any additional requirements for arbitration agreements imposed by states.7 The FAA mandates that federal courts enforce an arbitration provision \"in any maritime transaction or a contract evidencing a transaction involving commerce\"8 if the provision satisfies three conditions. First, it must be in writing.' Second, the arbitration provision must relate to a maritime transaction or a transaction involving interstate commerce.'i Third, the arbitration agreement must be valid and able to withstand any legal or equitable grounds for the revocation of any contract. \" Many courts have addressed the FAA's requirement that, before a federal court may enforce an agreement to arbitrate, the agreement must be as valid as any other contract.' More specifically, courts have reached different conclusions regarding whether a court or an arbitrator should resolve challenges to the validity of an arbitration clause that is a part of a larger commercial contract. A partial answer to this question was provided by the U.S. Supreme Court in 1967 in Prima Paint.3 There, the 4. See, e.g., Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 53 n.1 (3d Cir. 1980). 5. See 9 U.S.C. §§ 2-4 (2000). 6. 388 U.S. 395 (1967). 7. See Southland Corp. v. Keating, 465 U.S. 1, 10-15 (1984) (explaining that the FAA has created a substantive federal law that preempts conflicting state law provisions as to enforceability of arbitration agreements involving interstate commerce and maritime transactions). 8. 9 U.S.C. § 2 defines \"commerce\" for FAA purposes as \"commerce among the several States or with foreign nations.\" Section 1 further specifically excludes from \"commercial contracts\" under the FAA \"contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.\" Id. § 1. 9. See 9 U.S.C. § 1.

Beggars Can't Be Voters: Why Washington's Felon Re-Enfranchisement Law Violates the Equal Protection Clause

Abstract: The Washington State Constitution denies persons convicted of felonies the right to vote until their civil rights have been restored. Civil rights are restored when offenders complete all aspects of their sentence, including paying the legal-financial obligations imposed at sentencing. Payment of legal-financial obligations presents a significant hurdle to offenders trying to reclaim their right to vote. According to the Washington Department of Corrections, roughly 46,500 offenders in Washington have not had their right to vote restored solely because of unpaid legal-financial obligations. The right to vote is a fundamental right secured by the United States Constitution, yet the United States Supreme Court has affirmed that states have the right, under the Fourteenth Amendment, to disenfranchise persons convicted of crimes. While the constitutional requirements of felon disenfranchisement are settled, the requirements of felon re-enfranchisement are an open question. This Comment argues that felon re-enfranchisement laws must not discriminate in ways that violate the traditional voting rights requirements of the Equal Protection Clause. As one requirement, the U.S. Supreme Court has held that states cannot require the payment of money as a qualification for voting. Therefore, Washington's requirement that offenders pay their legalfinancial obligations before re-enfranchisement violates the Equal Protection Clause because it conditions the fundamental right to vote on the payment of money to the state. John' was released last year from a Washington State prison after serving time for a felony theft conviction. Although he has a job earning $7.50 an hour, John has not been able to pay the $1,200 in monetary sanctions-officially called \"legal-financial obligations\" 2-that were assessed during sentencing. Suppose that under Washington State law, John does not have the right to free speech because he has not finished 1. Hypothetical created by the author for illustrative purposes. 2. WASH. REV. CODE § 9.94A.030(27) (2002) defines a legal-financial obligation as: [A] sum of money that is ordered by a superior court of the state of Washington... which may include restitution to the victim, statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or local drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction. Upon conviction for vehicular assault while under the inuence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal-financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to RCW 38.52.430. Although the statute does not hyphenate the phrase \"legal-financial obligations,\" the two words are hyphenated throughout this Comment for clarity and to emphasize the connection between the legal and financial aspects of the obligation. Washington Law Review paying his legal-financial obligations. Under this law, Washington requires offenders to complete all aspects of their sentence, including payment of legal-financial obligations, before restoring their free speech rights.a Angered by a recent ballot initiative, John wants to express his views by passing out flyers on a street comer, but he is prevented from doing so until he pays his legal-financial obligations. Across town, Sarah is on the sidewalk handing out flyers on the same ballot initiative. She also was released from jail last year, but her family could afford to pay her $1,500 of legal-financial obligations. As a consequence, her free speech rights were fully restored upon payment. The scenario described above seems preposterous. Surely no court would uphold a state law that restricted offenders' free speech rights following release from prison until they paid their legal-financial obligations.' Yet, while no state restricts First Amendment rights in this way, the scenario reflects the law in many states regarding another fundamental right: voting. Some states, including Washington, deny offenders the right to vote until they have paid their legal-financial obligations.5 As a result, while John can pass out flyers expressing his feelings on the upcoming initiative, he cannot vote on it. Sarah, on the other hand, can vote. The only difference between Sarah and John is their ability to pay. In the United States, an estimated 3.9 million U.S. citizens are disenfranchised because of criminal convictions, including over one million who have fully completed their sentences.6 Forty-eight states 3. The author has invented this state law for illustrative purposes. No law in Washington State requires that offenders pay their legal financial obligations before regaining free speech rights. 4. No state has enacted a law that restricts offenders' free speech rights following release from prison. However, in Turner v. Safely, the U.S. Supreme Court stated that restrictions on prisoners' fundamental rights are permissible only if necessary to advance legitimate penological interests. 482 U.S. 78, 89 (1987). It is difficult to imagine a scenario where restrictions on released offenders' free speech rights would be necessary to serve legitimate penological interests. 5. Washington is among more than a dozen states that deny felons voting rights until they have satisfied all conditions of their sentence, including payment of legal-financial obligations. See UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, RESTORING YOUR RIGHT TO VOTE, available at http://www.usdoj.gov/crt/restorevote/restorevote.htm (last visited Jan. 3, 2003) (summarizing what offenders must do to restore their voting rights in each state.); Jamie Fellner & Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 4 (Human Rights Watch and The Sentencing Project, October 1998). For example, Alaska (ALASKA STAT. § 15.05.030 (Michie 2002)), Connecticut (CONN. GEN. STAT. §§ 9-46, 9-46a (2001)), Minnesota (MINN. STAT. §§ 201.014, 609.165 (2002)), and Texas (TEx. ELEC. CODE ANN. § 11.002 (Vernon 2002)) deny felons the right to vote until they have completed all aspects of their sentence. 6. Fellner & Mauer, supra note 5, at 4. Vol. 78:297, 2003 Felon Re-Enfranchisement restrict offenders' voting rights to some extent.7 State restrictions range from disenfranchisement only during incarceration to permanent denial of the right to vote. In Washington, persons convicted of felonies are disenfranchised until they have received a \"discharge,\" which they will receive after they have served any prison sentence, completed community placement,9 and paid all legal-financial obligations imposed during sentencing.'\" Felons may bypass this process only if the governor grants them a pardon.\" As of 1998, more than 150,000 Washington residents did not have the right to vote because of felony convictions. 2 In addition, the Washington Department of Corrections (DOC) estimates that as of December 2001, 46,500 offenders remained disenfranchised solely because of pending legal-financial obligations. 3 The United States Constitution does not expressly guarantee the right to vote, but the U.S. Supreme Court has nonetheless held that once states grant citizens the right to vote, voting becomes a fundamental right protected by the Constitution. 14 According to the Court, the right to vote is a \"fundamental matter in a free and democratic society,\" 5 and as such any infringement on that right must be \"meticulously scrutinized.\"' 6 In the last fifty years, the Court has struck down a number of state laws that restricted citizens' voting rights, including laws requiring payment of money to the state. 17 However, the Court has upheld state laws that 7. THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT IN THE UNITED STATES, available at http://www.sentencingproject.org/brief/publ046.pdf (last updated Nov. 2002) (summarizing state felon voting rights laws); see also UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, RESTORING YOUR RIGHT TO VOTE, available at http://www.usdoj.gov/crt/restorevote/restorevote.htm (last visited Jan. 3, 2003) (summarizing what offenders must do to restore their voting rights in each state). 8. Fellner & Mauer, supra note 5, at 3-4. 9. Under Washington's Sentencing Reform Act, offenders are sentenced to periods of community placement rather than parole and probation. WASH. REV. CODE § 9.94A.700 (2002). While under community placement, the offender lives in the community but remains under the supervision of the Department of Corrections. Id. 10. WASH. CONST. art. VI, § 3 (denying the right to vote for all persons convicted of \"infamous crimes\" unless they have had their civil rights restored); WASH. REV. CODE § 9.96.050 (2002) (providing for the restoration of civil rights upon discharge). 11. WASH. REV. CODE § 9.96.010. 12. Fellner & Mauer; supra note 5, at 6. 13. DEPARTMENT OF CORRECTIONS, AGENCY FISCAL NOTE FOR SENATE BILL 6519 (2002). 14. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665 (1966). 15. Reynolds v. Sims, 377 U.S. 533, 562 (1964).

Who Can Defend a Federal Regulation? The Ninth Circuit Misapplied Rule 24 by Denying Intervention of Right in Kootenai Tribe of Idaho v. Veneman

Abstract: In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include environmental organizations that had actively participated in the challenged NEPA administrative rulemaking process. This extension contradicts Rule 24's focus on the practical effects of litigation and the Ninth Circuit's precedent of liberally granting intervention in public law cases. This Note argues that the Ninth Circuit should abandon the federal defendant rule and instead apply Rule 24 by individually evaluating whether absentees have a protectable interest within NEPA's zone of concern for the environment or have actively participated in the process of adopting the challenged regulation. In January 2001, the United States Forest Service issued its final Roadless Rule,' a landmark conservation regulation that would prohibit nearly all logging and roadbuilding in 58.5 million acres of National Forest lands.2 The Roadless Rule was the culmination of a lengthy administrative rulemaking process 3 undertaken pursuant to the National Environmental Policy Act of 1969 (NEPA).4 The Forest Service received over one million public comments on the Roadless Rule, ninety-six percent of which called for strong conservation measures. 5 The Clinton administration adopted the Roadless Rule just two weeks before the inauguration of President George W. Bush.6 When opponents filed a NEPA challenge in the District Court of Idaho seeking to 1. Roadless Area Conservation, 66 Fed. Reg. 3244 (Jan. 12, 2001) (to be codified at 36 C.F.R. pt. 294). 2. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1105-06 (9th Cir. 2002) [hereinafter Kootenai 11]. 3. Id. at 1104-05. 4. Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321-4375 (2000)). 5. Kootenaill, 313 F.3d at 1116 n.19, 1119. 6. Id. at 1105-06.

Unpacking New Policing: Confessions of a Former Neighborhood District Attorney

Abstract: This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of "new discretion" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called "communities" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of self-governance underlying it as thinly disguised forms of majoritarianism. This Article has two primary goals. One goal is to use the author's experience as a community-based prosecutor to critique the new discretion scholars' reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure.