Showing papers in "Washington Law Review in 2005"

"Straight Stealing": Towards an Indigenous System of Cultural Property Protection

Abstract: Incidents involving theft of indigenous peoples' traditional knowledge and the blatant appropriation of culture have become more widely acknowledged in recent decades. It is now apparent that international, national, and tribal laws must work together to protect the cultural property of indigenous groups. However, tribal law, which provides vital cultural context, must serve as the foundation. Unlike top-down legal systems, tribal laws reflect tribal economic systems, cultural beliefs, and sensitive sacred knowledge in nuanced ways that national and international regimes simply cannot. Accordingly, this Article offers two central reasons why the development of tribal law is critical for indigenous peoples to direct their own cultures and destinies in a technological world. First, the essence of sovereignty for indigenous peoples means exercising their inherent authority to define tribal laws and be governed by them. The development and enforcement of tribal legal systems reinforces tribal sovereignty and affirms principles of self-determination. Additionally, when extant and ascertainable, tribal law can influence dominant legal systems. Adjudicatory bodies increasingly draw on tribal law to address issues that go to the essence of tribal life. Focusing on the sui generis, tribal law systems of federally recognized tribes in the contiguous United States, this Article examines in detail the actions tribes are undertaking to ensure the preservation of their cultural property.

Handling the Failure of a Government-Sponsored Enterprise

Abstract: Fannie Mae and Freddie Mac are huge, fast-growing, highly leveraged, lightly regulated, and susceptible to failure. Prudence calls for having a legal mechanism adequate for handling their failure. Yet no adequate insolvency mechanism currently exists for them. Unlike ordinary business firms, these government-sponsored enterprises (GSEs) cannot liquidate or reorganize under the Bankruptcy Code. If Fannie Mae or Freddie Mac became sufficiently troubled, its regulator could appoint a conservator to take control of the firm and attempt to restore its financial health. But by then the firm's problems could well have become too severe for the conservator to resolve. The conservatorship statute provides no means for effectuating a reorganization and does not expressly authorize a liquidation. Uncertainty about the priority and process for handling creditors' claims could worsen the firm's problems and increase the risk of disrupting financial markets and eliciting a costly congressional rescue. By enacting a workable insolvency mechanism, Congress could avoid using public money or credit to rescue a troubled GSE's creditors. Congress should specify priorities among creditors' claims, authorize appointment of a receiver, and empower the receiver to reorganize the GSE or establish an interim firm to carry on the GSE's business. Alternatively, Congress could allow GSEs to liquidate or reorganize under the Bankruptcy Code.

Does Sex Matter? Washington's Defense of Marriage Act under the Equal Rights Amendment of the Washington State Constitution

Abstract: Washington State's Defense of Marriage Act (DOMA) defines marriage as a civil contract between a male and a female and explicitly bans marriages between members of the same sex. Yet the Equal Rights Amendment (ERA) to the Washington State Constitution prohibits laws that classify by sex. In the three decades since the enactment of the ERA, the Washington State Supreme Court has recognized only two narrow exceptions to the ERA's ban of sex-based classifications: laws based on anatomical differences between the sexes and laws created to mandate equality between men and women. Whether the DOMA effects a sex-based classification and therefore violates the ERA presents the Washington State Supreme Court with an issue of first impression. When analyzing the DOMA, the Washington State Supreme Court should apply absolute scrutiny, a level of scrutiny which exceeds that applied by other courts that have found laws creating sex classifications to be sex discrimination. In so doing, the court should find that the DOMA results in a sex-based classification that is prohibited by the ERA and conforms to neither of the ERA's two narrow exceptions. As such, the Washington State Supreme Court should hold that Washington State's DOMA effects a sex-based classification expressly prohibited by the Washington State Constitution. Jim and Chris meet and individually fall in love with identical twin sisters, Mary and Jane.' Both couples reside in Washington State and would like to be married in Washington. Each couple-Jim and Mary as well as Chris and Jane-separately applies for a marriage license. Under Washington State's Defense of Marriage Act (DOMA),2 a valid marriage can exist between only a male and a female.3 Thus, in considering each couple's application for a marriage license,4 the county 1. Hypothetical created by the author. 2. WASH. REV. CODE §§ 26.04.010-020 (2000); see also 28 U.S.C. § 1738C (2000) (granting states the authority to disclaim legal recognition of same-sex marriages performed in other states). While this Comment uses the popular name of the federal statute-DOMA-this Comment discusses only the relevant sections of the Washington State marriage statutes, hereinafter referred to as the DOMA, and their constitutionality under the Washington State Constitution. 3. WASH. REv. CODE § 26.04.010(1). 4. See, e.g., King County Marriage License Application (requiring declaration of sex of each applicant for marriage license), available at http://www.metrokc.gov/lars/marriage/mlapp.pdf (last visited Feb. 11, 2005); Thurston Country Marriage License Application (requiring declaration of sex of each applicant for marriage license), available at Washington Law Review Vol. 80:535, 2005 auditor must look at the sex of each applicant. 5 As a result, the county auditor will grant Jim and Mary a marriage license because Jim is male and Mary is female. However, the county auditor must deny Chris (Christine) and Jane a marriage license because both are female, and the DOMA explicitly prohibits same-sex marriage in Washington State.6 The issue of whether the Washington State DOMA's ban on same-sex marriages is constitutional under the Washington State Constitution has recently come before the state's courts.7 In Andersen v. King County8 and Castle v. State,9 Washington State superior court judges ruled that the DOMA violates the privileges and immunities and due process clauses of the state's constitution. 0 However, in light of precedent from Division I of the Washington State Court of Appeals, l both trial courts declined to rule on the issue of whether the DOMA violates the Equal Rights Amendment (ERA) of the Washington State Constitution.' 2 In Singer v. Hara,13 Division I ruled on the issue of sex discrimination under the ERA in the context of same-sex marriage.' 4 Because that decision predated the DOMA,15 the question remains open whether the Washington State DOMA's definition of marriage as a union between a http://www.co.thurston.wa.us/auditor/Recording/Forms/Marriage%20Application.pdf (last visited Feb. 11, 2005). 5. WASH. REV. CODE § 26.04.140 (\"Before any persons can be joined in marriage, they shall procure a license from a county auditor .... ). 6. Id. § 26.04.020(1)(c) (prohibiting marriages when parties are persons other than a male and a female). 7. See generally Castle v. State, No. 04-2-00614-4, 2004 WL 1985215 (Super. Ct. Thurston County Sept. 7, 2004) (memorandum opinion on constitutionality); Andersen v. King County, No. 04-2-04964-4-SEA, 2004 WL 1738447 (Super. Ct. King County Aug. 4, 2004) (memorandum opinion and order on cross motions for summary judgment). 8. No. 04-2-04964-4-SEA, 2004 WL 1738447 (Super. Ct. King County Aug. 4, 2004) (memorandum opinion and order on cross motions for summary judgment). 9. No. 04-2-00614-4, 2004 WL 1985215 (Super. Ct. Thurston County Sept. 7, 2004) (memorandum opinion on constitutionality). 10. See Castle, 2004 WL 1985215, at *16 (holding that DOMA violates privileges and immunities clause of state constitution); Andersen, 2004 WL 1738447, at * 11 (holding that DOMA violates both privileges and immunities and due process clauses of state constitution). 11. See Singer v. Hara, 11 Wash. App. 247, 260, 522 P.2d 1187, 1195 (1974) (holding that marriage statutes limiting marriage to opposite-sex couples did not violate ERA). 12. Castle, 2004 WL 1985215, at *3; Andersen, 2004 WL 1738447, at *11; see also WASH. CONST. art. XXXI, § 1. 13. 11 Wash. App. 247, 522 P.2d 1187 (1974). 14. Id. at 260, 522 P.2d at 1195. 15. WASH. REV. CODE §§ 26.04.010-020 (2000); Singer, II Wash. App. at 260, 522 P.2d at 1195.

Policing the Border Between Trademarks and Free Speech: Protecting Unauthorized Trademark Use in Expressive Works

Abstract: Artists and other creators of expressive works often include trademarks and trademarked products as part of their works. They do so for a number of reasons, including lighthearted humor, critical cultural commentary, parody, or even simply to shock. In instances where such use is both unauthorized by and perceived as disparaging to the mark owner or the trademarked product, owners have attempted to sue under trademark law to enjoin the expressive use. This Article argues that, under a proper analysis of trademark law, precedent, and the free expression ideal enshrined in the First Amendment, mark owners should rarely, if ever, prevail in such actions. This Article evaluates the current state of the law, criticizing its inconsistencies and equivocations, and suggests that the correct analytical framework for these disputes must protect the public, creative nature of trademarks and their cultural meaning. The proposed framework mandates balancing of the competing public interest factors of marketplace confusion and free expression to resolve infringement cases, with the assumption that this approach will rarely lead to liability for defendants. As for claims of reputational harm, the free expression concerns compel defendant-friendly results in all cases. After defending this framework, this Article then scrutinizes the background legal doctrine framing this debate-the Supreme Court's commercial speech doctrine-to discern its relevance to controversies occasioned by unauthorized trademark use. The Article concludes that as commercialism in artistic works such as feature films increases, the line between commercial and noncommercial speech will blur and will again force reconsideration of the border between trademark law and free speech. IN TR O D U CTION 888 I. DEVELOPMENT OF THE LAW 895 A. Current Statutory Framework 895 B. Misguided Beginnings to the Analysis of Trademark Claims in the Context of Expressive Works 899 C. Untethering Trademark and Real Property: The Uneasy Emergence of Constitutional Consideration 901 II. DEFICIENCIES IN THE CURRENT ANALYSIS 906 . With significant contributions from Robert C. Welsh. Mr. Welsh is a partner at the Century City, California office of the law firm of O'Melveny & Myers, L.L.P. Pratheepan Gulasekaram is an Acting Assistant Professor at NYU School of Law. Mr. Gulasekaram would like to thank Anoop Prasad (J.D. expected 2006, Loyola University New Orleans) for his research assistance. Special thanks to Professors Robert Verchick, John Lovett, and Monica Wallace of Loyola Law School New Orleans for their helpful comments. And a very special thanks to Professor Emily Buss of the University of Chicago Law School and Professors Barbara Fried and George Fisher of Stanford Law School for their encouragement. Finally, the author would like to thank the editorial board of Washington Law Review for their tireless work on this Article. HeinOnline -80 Wash. L. Rev. 887 2005 Washington Law Review A. The Proper Private Real Property Analogy 907 B. Untenable Subject-Matterand Genre-Based D istinctions 9 10 C. Limited Holdings and Inappropriate Legal Doctrines 916 III. UNAUTHORIZED TRADEMARK USE IN EXPRESSIVE WORKS: THE PROPER ANALYTICAL FRAMEWORK ......... 922 IV. THE REAL QUESTION: SHOULD EXPRESSIVE USE ALWAYS COUNT AS NONCOMMERCIAL SPEECH? 931 A. The Advent of Product Placement and Current Analysis of Motion Pictures Under the Commercial Speech Doctrine .... 933 B. Pushing the Definitional Bounds of Noncommercial Sp eech 936 C. Increasing the Likelihood of Confusion 940 C O N C L U SIO N 94 1

Regulating the Mother's Milk of Politics: Why Washington's Campaign Finance Law Constitutionally Prohibits State Parties from Spending Soft Money on Issue Ads

Abstract: The possibility that elected officials may exchange their votes on pending legislation for donations to help their re-election campaigns poses a serious threat to democratic government. To alleviate this risk, governments at the state and national levels regulate how politicians finance their campaigns. However, these regulatory efforts have been challenged on First Amendment grounds. In Buckley v. Valeo, the United States Supreme Court upheld certain campaign contribution limits, while declaring certain expenditure limits unconstitutional. The Washington State Supreme Court relied on the Buckley opinion in Washington State Republican Party v. Washington Public Disclosure Commission, when it ruled that the First Amendment barred the state from limiting certain expenditures by political parties on issue advertisements. However, in McConnell v. Federal Election Commission, which clarified and expanded upon the Buckley decision, the U.S. Supreme Court recently upheld some restrictions on issue ad expenditures. This Comment argues that, in light of the McConnell decision, the state court's decision misinterpreted Buckley. The Washington State Supreme Court improperly concluded that Washington State's prohibition on the expenditure of soft money for issue advertisements by the state's political parties was unconstitutional. Accordingly, this Comment calls for the state's Public Disclosure Commission to adopt rules barring such expenditures. Campaign finance regulations present unique legal difficulties.' Limitations on raising or spending money to express political ideas interfere with the speech and associational rights that lie at the heart of the First Amendment.2 At the same time, a total absence of regulation of campaign finances could permit large campaign contributions to compromise the integrity of democratic institutions.3 Money is essential for effective political communication, yet it can lead to serious abuses of power.4 Consequently, the United States Supreme Court has attempted 1. See McConnell v. Fed. Election Comm'n, 540 U.S. 93, 137 (2003) (asserting interdependence of electoral process and First Amendment freedoms justifies a lower standard of scrutiny for certain campaign finance regulations). 2. U.S. CONST. amend I. See Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 264 (1986). \"Freedom of speech plays a fundamental role in a democracy; as this Court has said, freedom of thought and speech 'is the matrix, the indispensable condition, of nearly every other form of freedom.\"' Id. (quoting Palko v. Connecticut, 302 U.S. 319, 327 (1937)). 3. See Buckley v. Valeo, 424 U.S. 1, 26 (1976) (discussing the corruption that can result from large financial contributions). 4. Because of these dual aspects of money, it is often called the \"mother's milk of politics,\" a Washington Law Review Vol. 80:191, 2005 to strike a delicate balance between these concerns in its campaign finance jurisprudence.' Federal and state governments have had mixed success defending campaign finance regulations against constitutional challenges. For example, in Buckley v. Valeo, the U.S. Supreme Court upheld statutory limitations on what people could contribute to political campaigns.' However, the Buckley Court struck down limitations on how much people could spend directly on election-related speech. 8 To avoid unconstitutional vagueness, the Court narrowly construed regulations on \"independent expenditures\" 9 so that they applied only to money spent \"expressly advocating\" a candidate's election or defeat.10 This created a loophole for \"issue ads,\" which do not explicitly call for a particular electoral outcome.\" Relying on the Buckley decision, the Washington State Supreme Court held that a statute restricting the use of soft money 12 by the state's political parties to fund issue ads violated the First Amendment.' 3 However, in the recent case of McConnell v. Federal Election Commission,14 the U.S. Supreme Court upheld some limitations on issue ad spending; this undermines the rationale behind the Washington State Supreme Court decision.\" phrase generally attributed to Jesse Unruh, Speaker of the California Assembly from 1961 to 1968. People v. Hedgecock, 247 Cal. Rptr. 404, 410 n.1 (1988). 5. See McConnell, 540 U.S. at 137 (discussing need to weigh competing constitutional interests when dealing with campaign finance regulation). 6. 424 U.S. 1 (1976).