Showing papers in "Washington Law Review in 2011"

The Limits of Global Judicial Dialogue

Abstract: The notion that "global judicial dialogue" is contributing to the globalization of constitutional law has attracted considerable attention. Various scholars have characterized the citation of foreign law by constitutional courts as a form of "dialogue" that both reflects and fosters the emergence of a common global enterprise of constitutional adjudication. It has also been claimed that increasing direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence. judges engage in comparativism is dwarfed by institutional and structural variables that lie largely beyond judicial control. The relative unimportance of judicial interaction is illustrated by a comparative case study of the Constitutional Court of the Republic of China (Taiwan), which is akin to a natural experiment in the capacity of a constitutional court to make use of foreign law even when it is largely deprived of contact with other courts. Taiwan's precarious diplomatic situation effectively precludes the members of its Constitutional Court from participating in international judicial gatherings or visits to foreign courts. Nevertheless, the Taiwanese Constitutional Court nearly always engages in extensive comparative constitutional analysis, either expressly or implicitly, when rendering its decisions. To explain how and why the Court makes use of foreign law notwithstanding its isolation, this Article combines quantitative analysis of citations to foreign law in the Court's published opinions with indepth interviews of numerous current and former members of the Court and their clerks. Comparison of the Taiwanese Constitutional Court and U.S. Supreme Court demonstrates that "global judicial dialogue" plays a much smaller role in shaping a court's utilization of foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and (b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in foreign law. Notwithstanding the fact that American justices enjoy unsurpassed opportunities to interact with judges from other countries, comparative analysis plays a less frequent role in their own constitutional jurisprudence than in that of their foreign counterparts. Openness on the part of individual justices to foreign law ultimately cannot compensate for the fact that the hiring and instructional practices of American law schools neither demand nor reward the possession of foreign legal expertise. This Article also documents the fact that judicial opinions are a highly misleading source of data about judicial usage of foreign law. Interviews with members of the Taiwanese Constitutional Court and their clerks reveal the existence of a large gap between the frequency with which the court cites foreign law in its opinions and the extent to which it actually considers foreign law. Analysis of judicial opinions alone may lead scholars to conclude mistakenly that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine. This Article challenges these claims on empirical grounds and offers an alternative account of the actual reasons for which constitutional courts engage in comparative analysis. First, it is both conceptually and factually inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of "dialogue." As a conceptual matter, constitutional courts do not cite one another for the purpose of communicating with another, while as an empirical matter, there is little evidence to suggest that one-sided citation of a handful of highly prestigious courts has given way to genuine two-way dialogue. Second, judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization. Rather, the effect of such interaction on the extent to which INTRODUCTION: MUCH ADO ABOUT NOTHING? …

The NeoLiberal Turn in Regional Trade Agreements

Abstract: This Article makes two primary arguments. First, that the increased resort to bilateral and regional trade agreements has taken a neoliberal turn. As such bilateral and regional trade agreements are now a primary means through which greater investor protections, commodification of social services, guaranteed rights of investor access to investment opportunities, privatization of public service goods, and generally the diminution of sovereign control are being realized. These trade agreements make the foregoing goals possible not just in developing countries, but in industrialized economies as well. I show that these agreements provide business interests with opportunities to exercise concerted pressure to influence the adoption of neoliberal economic policies in both developed economies and developing economies. Second, this Article argues that bilateralism and regionalism in trade are contemporary fads that are spreading neoliberal economic ideals in the periphery of the global trading system. In other words, emulation by small developing countries of neoliberal economic policies in developed countries is a significant driver of economic reform. Developing countries adopt neoliberalism not simply because it is imposed, as many accounts suggest. Rather, neoliberalism is also voluntarily adopted for a variety of reasons: (i) because there has been a convergence in the thinking of policymakers and academic thinkers in developing and developed countries in part as a result of socialization through education or professional associations and contacts; (ii) as a result of persuasion that neoliberal reforms are important preconditions for goals such as increased economic growth or the efficiency of public sector institutions, developing country officials have adopted them; (iii) public officials in developing countries are strategically adopting neoliberal reforms since they are regarded as a signaling device that their country is 'safe' for investment or because bilateral and regional trade agreements come with budget support that is otherwise unavailable to these developing country officials in their home country; (iv) officials in developing countries are passive imitators who in the absence of solid evidence as to the efficacy of neoliberal ideals on their own account or in relation to alternative reform ideas are rationally bounded actors who find it impractical to assess the efficacy of neoliberal ideals or their alternatives. In short, this Article argues that the increased number of regional and bilateral trade agreements represents an important opportunity for the further diffusion of neoliberal economic ideals, an insight often missing in leading accounts that have emphasized how this trend conforms or departs from the norms of the World Trade Organization. This paper does so using a constructivist account of the circumstances under which neoliberalism arises in the turn towards regionalism and bilateralism. It shows how ideas about market governance and the institutions and experts that generate and perpetuate these ideas impose an incentive structure within which choices in favor of neoliberalism are more than less likely to be exercised. INTRODUCTION 422 I. THE TREND TOWARD TRADE REGIONALISM AND BILATERALISM 427 A. The Long Litany of U. S. Regional and Bilateral Trade and Investment Agreements 427 1. Bilateral Trade Agreements 430 2. Regional Initiatives 432 3. Trade and Investment Framework Agreements (TIFAs) 432 4. Bilateral Investment Treaties (BITs) 432 5. …

Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications

Abstract: Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications. One reason foreclosures outpace modifications is that the mortgage-modification decision maker's incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer's main function is to collect and process payments from homeowners, and servicers do not necessarily have any ownership interest in the loan. Servicers, unlike investors, generally recover all their hard costs after a foreclosure, even if the home sells for less than the mortgage loan balance. Servicers may even make money from foreclosures through charging borrowers and investors fees that are ultimately recouped from the loan pool. Existing regulatory guidance could be improved to facilitate modifications. Investors need increased transparency to hold servicers accountable for failing to make modifications when it is in the investors' best interests to make modifications. Fundamentally, servicers must be required to make modifications when doing so would benefit the trust as a whole. INTRODUCTION 758 I. THE FRAMEWORK OF MORTGAGE SERVICING IMPEDES MODIFICATIONS 762 A. The Mortgage Market Has Evolved Into Fragmented Ownership 762 B. Decision Making Is Divorced from Ownership for Most Home Loans 764 1. Who Is a Servicer? 765 2. Investors Seldom Can or Do Influence the Servicer's Actions on Loan Modifications 768 3. Servicers Make Modifications that Benefit Themselves, Not Investors or Homeowners 770 C. Third Parties Constrain Servicer Discretion 772 1 . Credit Rating Agencies and Bond Insurers Exercise Influence over Servicers 772 2. The FASB Accounting Rules Regulate Servicer Performance 775 II. CHOOSING BETWEEN FORECLOSURES AND MODIFICATIONS: THE BALANCE OF SERVICER INCENTIVES DISCOURAGES MODIFICATIONS 776 A. The Cost-Benefit Analysis of a Foreclosure or a Modification 776 B. Servicers Are Not Prevented from Modifying Loans by Securitization Contracts or Tax and Accounting Rules ....... 781 1 . Investor Contracts Do Not Prevent Most Loan Modifications 782 2. The Accounting Rules Do Not Prevent Modification of Loans in Default 785 C. Some Features of the Accounting Rules and Investor Contracts Can Discourage Sustainable Modifications ......... 788 1 . FASB Requirements for the Immediate Recognition of Loss Discourage Permanent Modifications 788 2. The Troubled Debt Restructuring Rules Discourage Sustainable Modifications 791 3. Dual-Track Provisions in Investor Contracts Hinder Modifications 794 4. Repurchase Agreements Encourage Servicers to Pursue Short-Term Forbearance Agreements over Permanent Modifications...... …

Promoting Democracy in Prosecution

Abstract: Voters were meant to check prosecutors' decisions, but that check has eroded because voters lack the information necessary to cast meaningful votes in prosecutor elections. Voters' lack of an effective political check on prosecutors causes two related problems: (1) inefficient allocation of prosecutorial resources and (2) divestment of democratic sovereignty from the people. Prosecutors currently need not consider expenditures for incarceration or public defense because voters never see these costs and thus cannot hold their prosecutors accountable for them. Accordingly, these costs become an externality in the prosecutorial decision-making process, causing prosecutors to spend resources in socially inefficient ways. To reinvigorate the political check on prosecutors, this Article proposes requiring state and local prosecutors to disclose costs of all prosecuted cases and all cases not prosecuted in which an arrest was made and sufficient evidence existed. Such disclosures would sweep broadly to include prosecutors' wages, public defense costs, and incarceration costs in cases resulting in a conviction. Voters would then have concrete, monetized evidence of prosecutorial priorities. This greater information flow would allow voters, through the ballot box, to meaningfully supervise their prosecutors' exercise of delegated sovereign authority. Knowing that voters wield this information, prosecutors would then internalize this externality by taking these previously disregarded costs into account when they determine whether to charge crimes, what crimes to charge, and what sentences to recommend. Creating a mechanism that urges prosecutors to consider this broader set of costs would promote a more socially efficient outcome. Finally, this Article considers what an efficient allocation of prosecutorial resources might look like. It postulates that many constituencies would rather spend less on small-scale drug prosecutions to save cash-strapped state budgets. INTRODUCTION 70 I. THE EVOLUTION OF PROSECUTORIAL DISCRETION AND PROBLEMS OF DEMOCRATIC ACCOUNTABILITY ..... 75 A. History and Evolution of Prosecutorial Discretion 75 B. Voters' Lack of Information 78 C. Problems Caused by Lack of Information 79 1 . Inefficient Allocation of Prosecutorial Resources 79 2. Divestment of Sovereignty 84 D. Other Mechanisms of Democratic Accountability Fail to Control Prosecutorial Discretion 87 II. MANDATORY COST DISCLOSURE AS A MEANS OF ENHANCING PROSECUTORIAL ACCOUNTABILITY 91 A. Prosecutorial Discretion Is Necessary and Beneficial 91 B. Contours of Mandatory Cost Disclosures 94 C. Costs of Cost Disclosures 98 D. Distinguishing Previous Proposals 99 III. IMPLICATIONS OF MANDATORY COST DISCLOSURES ... 102 A. From Disclosure Reports to the Voting Booth 102 B. Efficiency and Sovereignty Improvements 104 1. Efficiency 104 2. Sovereignty 110 C. Envisioning Practical Results 112 CONCLUSION 123 INTRODUCTION State budgets are in crisis, and state prisons are a big reason why. As of 2009, the total number of inmates in state prisons and local jails across the nation reached nearly 2. …

The Deepwater Horizon Oil Spill and the Limits of Civil Liability

Abstract: This Article uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The Article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case. Part I systematically discusses pre-OPA law. It focuses mainly on two salient features of the Exxon Valdez litigation, namely exclusion of liability for purely economic losses, and punitive damages. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime. Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. This article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution. INTRODUCTION 2 I. LIABILITY IN THE PRE-OPA ERA 9 A. General Maritime Law 10 1. Purely Economic Losses 10 a. The Exclusionary Rule 10 b. The Commercial Fishermen's Exception ........ 21 c. The Exxon Valdez Litigation 22 2. Punitive Damages 24 a. The Punitive Damages Doctrine 24 b. TheExxon Valdez Litigation 31 B. Federal Legislation 33 C. State Law 35 II. THE GENERAL PROBLEM: SIMULTANEOUS APPLICATION OF THE EXCLUSIONARY RULE AND THE PUNITIVE DAMAGES DOCTRINE 37 A. The Adverse Consequences of Simultaneous Application ..... 38 B. The Scope of the Problem 43 C. Guidelines for Resolution 46 III. OIL POLLUTION LIABILITY IN THE OPA ERA 48 A. The Current Liability Scheme 49 1. The Oil Pollution Act 49 2. State Law 59 B. A Critical Appraisal of the Current Scheme 62 CONCLUSION 66 INTRODUCTION On April 20, 2010, while drilling at the Macondo Prospect, a seabed location about forty-one miles off the southeast coast of Louisiana, an explosion occurred on the Deepwater Horizon, a mobile offshore drilling rig.1 The rig was owned and operated by Transocean, the world's largest offshore drilling contractor, and leased to BP, one of the world's largest energy companies and the lessee and principal operator of the Macondo field. …

Global Law and the Environment

Abstract: This Article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important role in influencing corporate behavior by promoting greater informational disclosure and transparency to mobilize informed consumers. INTRODUCTION 580 I. WHAT IS GLOBAL ENVIRONMENTAL LAW? 582 II. EMERGING TRANSNATIONAL ENVIRONMENTAL REGULATORY NORMS 584 A. The Search for an Elusive Post-Kyoto Global Response to Climate Change 586 B. Control of Emissions from Global Maritime Operations ..... 592 1. Efforts to Promote Further Reductions in Emissions from Ships 593 2. IMO Consideration of a Global Approach to Reduce Ship Emissions 597 C. Global Consensus on Unreasonably Dangerous Products: Asbestos and Gasoline Lead Additives 599 III. TRANSNATIONAL LIABILITY LITIGATION 601 A. Efforts by Foreign Governments to Hold U.S. Tobacco Companies Liable 602 B. Litigation Against Chevron for Oil Pollution in Ecuador .... 605 1. Litigation Overview 606 2. Chevron's RICO Lawsuit and the Battle over "Crude" Outtakes 608 3. Arbitration Suits Filed by Chevron at the Permanent Court of Arbitration 610 4. Judicial Recusal and Judgment in the Ecuador Trial Court 611 5. Chevron's Efforts to Block Enforcement of the Ecuadoran Judgment 613 C. Carijano v. Occidental Petroleum Corporation 616 D. Transnational DBCP Litigation 618 E. The Trqfigura Litigation 621 IV. PRIVATE TRANSNATIONAL TRANSPARENCY INITIATIVES 624 A. The Equator Principles 625 B. Roundtable on Sustainable Palm Oil 626 C. NGO-Private Partnerships and Efforts to Promote "Green Supply Chains" 629 CONCLUSION 633 INTRODUCTION As this symposium confirms, the concept of "global law" has sufficiently matured that the term "global law" may no longer need to appear in quotation marks. This change reflects the profound effect globalization is having on the development of law and legal systems throughout the world, particularly in the environmental law field. As global environmental law develops, traditional distinctions between domestic and international law, and private and public law, are blurring. …

The Globalization of Corporate Law: The End of History or A Never-Ending Story?

Abstract: Considerable scholarship during the last few decades addresses the question of whether corporate laws are becoming global by converging on commonly accepted approaches. Some scholars have asserted that such convergence is occurring around the most efficient laws and institutions, thereby marking the "End of History" for corporate law. This Article responds to such assertions by developing three claims not previously given due attention in the convergence literature. First, it demonstrates that the history of corporations and corporate law has been one of seemingly constant movement toward global convergence, yet the resulting convergence is always incomplete or transitory. Next, it points out that because forces besides efficiency also produce convergence, convergence often occurs around corporate laws and institutions that have no particular efficiency or other normative advantage, or that necessarily represent stable equilibrium points. Finally, the Article asks what are the important corporate laws and institutions by which to measure the extent of convergence at any one time. It develops the answer that a stable convergence is least likely for the most important corporate law issues, which are characterized by tensions between competing policies and no easy solutions for the problems presented. INTRODUCTION 476 I. THE HISTORY OF CONVERGENCE IN CORPORATE LAW 480 A. The Early Roots of Convergence 480 B. Continuous Borrowing and Transplants 485 1. The General Patterns 485 2. Converging on Limited Liability 487 3. Regulations to Protect Non-shareholder Interests ..... 487 4. Cycles of Regulation and Deregulation in Protecting Shareholders 491 II. WHY CONVERGENCE IN CORPORATE LAW OCCURS ...... 494 A. The Efficiency Hypothesis 494 1. Economic Darwinism and Corporate Laws 494 2. Forces for Divergence 495 B. Inefficient Convergence 496 1. Fads and Fashions 496 2. The Endogenous Variables Problem 500 3. Rent-Seeking 505 III. WHAT IS IMPORTANT IN MEASURING CONVERGENCE 507 A. The Assumptions of Academics 507 B. The Tough Policy Issues 511 1. Mandatory Versus Permissive Corporate Law ......... 512 2. Authority Versus Accountability for Corporate Managers 515 CONCLUSION 520 INTRODUCTION While corporations, at least the largest ones, commonly operate on a global scale, the laws governing their internal affairs (in other words, the rights and duties of their owners and managers) are national or subnational.1 In the last few decades, considerable scholarship has focused on whether these national and sub-national corporate laws are becoming, like many of the corporations they govern, global - in this case by converging upon commonly accepted approaches.2 Earlier comparative corporate law scholarship was to a great extent a technical affair, occupied with describing differences in specific rules - e. …

Blindsight: How We See Disabilities in Tort Litigation

Abstract: Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation's heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as "less than whole" over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs' awards. INTRODUCTION 710 I. TORT LITIGATION'S DISTORTED VIEW OF DISABILITY 716 A. The Pathologizing Role of Medical Experts 722 B. How Tort Litigation Suggests that Plaintiffs with Disabilities Are "Less than Whole" 727 II. WHAT HAPPENS IN COURTS DOES NOT STAY IN COURTS: TORT LITIGATION'S INFLUENCE ON PERCEPTIONS OF DISABILITY 731 A. Tort Litigation's Blindsight Shapes Public Perceptions....... 732 B. Tort Litigation Encourages Plaintiffs to View Themselves in Harmful Ways 734 III. HOW TO APPROACH DISABILITIES DIFFERENTLY (WITHOUT SACRIFICING PLAINTIFFS' RECOVERIES) ..... 737 A. Making Room for People with Disabilities to Become More Active Participants in the Litigation 738 B. Changing the Way We Talk 742 C. What About the Money? 746 CONCLUSION 752 INTRODUCTION Was not experience necessary to see? - Dr. Oliver Sacks' In 1993, Dr. Oliver Sacks introduced The New Yorker readers to a condition called "Hindsight."2 Blindsight is a kind of perceptual blindness.3 People with blindsight have the ability to see but are not conscious of it.4 Essentially, they are blinded by the limitations of their cognitive experience. As the great Irish playwright Brian Friel has taught us, however, blindsight can also be understood as a cultural condition.5 In Molly Sweeney, a play Friel wrote after reading Sacks' article,6 Friel portrays society as suffering from blindsight in its interactions with people with disabilities.7 While people without disabilities can physically see the lives of people with disabilities, Friel suggests, their biases make them blind to how individuals actually experience disability.8 In this Article, I argue that tort litigation suffers from a similar condition. I do so mindful of the limitations of using medical terminology to critique biases about disability.9 Disability rights activists have long sought to have disability understood in social, rather than medical terms.10 In light of this history, my use of medical terminology to diagnose and treat tort litigation's perspective on disability may seem ironic and potentially regressive. I also recognize that there are problems with using a disability metaphor, particularly one linked to blindness.11 Disability metaphors can be offensive because they usually rely on negative stereotypes for their rhetorical power. …

[86WashLRev0185] The McCarran Amendment and Groundwater: Why Washington State Should Require Inclusion of Groundwater in General Stream Adjudications Involving Federal Reserved Water Rights

Abstract: All water is connected through the hydrologie cycle.' When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater,2 the law often treats the two separately.3 The legal choice to ignore the interaction of surface and groundwater is particularly notable in "general stream adjudications." States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source.4 In 1952, Congress passed the McCarran Amendment, which allows states to adjudicate federal reserved water rights in state court in general stream adjudications.5 The United States Supreme Court has interpreted the Amendment as requiring that adjudications be "comprehensive" of all of the rights in a given water source, but has not yet ruled as to whether this requires inclusion of groundwater users.6 The Amendment itself is equally vague on this point. This Comment argues against Ninth Circuit precedent and asserts that for a general stream adjudication to be "comprehensive" under the McCarran Amendment, it must include users of hydrologically connected surface and groundwater. INTRODUCTION The federal government has water rights in all waters set aside for a federal purpose.7 Many states seek to delineate the size and scope of these "reserved rights" to determine what waters are available for state users.8 The most common way of resolving federal and state water rights claims is through general stream adjudications.9 General stream adjudications allow states to determine all rights to a given water source in a single lawsuit. In order to make these adjudications more efficient, Congress passed the McCarran Amendment.10 The McCarran Amendment waives federal sovereign immunity, enabling states to include federal water rights in general stream adjudications.11 In order for the waiver to take effect, however, the adjudication must be sufficiently "comprehensive."12 All claimants to a water source must be included in the adjudication to meet the comprehensiveness requirement.13 The adjudication must be more than a mere attempt by private parties to establish their water rights with respect to the federal government.14 The United States may challenge a state's general stream adjudication.15 Specifically, the United States may move to dismiss an adjudication on the grounds that it is insufficiently comprehensive to support a waiver of federal sovereign immunity.16 And while the United States Supreme Court has never decided whether an adjudication must include groundwater users connected to a surface water source in order to be considered comprehensive, the Ninth Circuit Court of Appeals has answered this question in the negative. In United States v. Oregon,11 the Ninth Circuit held that a general stream adjudication need not include groundwater users to be comprehensive under the McCarran Amendment.18 This Comment asserts that the Ninth Circuit's decision was incorrect. In addition to being incorrect as a matter of law, the practical consequences that may result argue for the inclusion of both surface and groundwater in general stream adjudications. Because states have the power to determine their own adjudication procedures, Washington should not follow Ninth Circuit precedent when adjudicating federal water rights. Part I of this Comment explains the doctrine of federal reserved water rights and the rights the federal government and Indian tribes maintain in the waters within a state.19 Part II explains the McCarran Amendment and analyzes the United States Supreme Court's treatment of the Amendment's comprehensiveness requirement. It also details the importance of water to tribal communities and their hesitancy to have their water rights determined in state court. Part III discusses the concept of hydrologie comprehensiveness and the relationship between surface and groundwater. …

Reasoning about the Irrational: The Roberts Court and the Future of Constitutional Law

Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. INTRODUCTION Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction ? right or wrong ? the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."1 By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself on issues of grave national importance,2 perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.3 Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right. On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.4 The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."5 No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. …

The Two Versions of Rational-Basis Review and Same-Sex Relationships

Abstract: Although it purports to be a single standard, equal protection's rational-basis review has two faces that use different methods and produce conflicting results. The United States Supreme Court employs both versions but does not acknowledge that a conflict exists between them. Without an explicit acknowledgment of the contradictory nature of the two rationality reviews, it follows that the Court has made no effort to explain in what context one version should be used and in what context the other is appropriate. As a result, it is very difficult to predict with accuracy the outcome of arguments based on equal protection's rational-basis review in the lower courts because no matter which side a court picks, it can find U.S. Supreme Court precedents to support the result. In recent years, this problem of unpredictability has been particularly acute in cases challenging laws that disadvantage persons involved in same-sex relationships. Because rational-basis review is ordinarily deferential to legislative judgment, these challenges usually fail. There is, however, a core of successful rational-basis claims that involve a more demanding scrutiny and seem to contradict the results in the more typical cases. This creates unpredictability. This Article examines this duality in three factual settings: (1) state laws that define marriage as limited to a man and a woman, (2) the United States military's policy of excluding gays and lesbians from military service, and (3) the federal Defense of Marriage Act, which limits federal recognition of marriage to opposite-sex couples. INTRODUCTION Equal protection's rational-basis review is like a tale of two cities, or perhaps like the story of Dr. Jekyll and Mr. Hyde, or even like the twofaced Roman god Janus, who simultaneously looked out in opposite directions. Although rationality review purports to be one standard, it has two faces that use different methods and produce conflicting results. The United States Supreme Court employs both versions but does not acknowledge that a conflict exists between them. Without an explicit acknowledgment of the contradictory nature of the two rationality reviews, it follows that the Court has made no effort to explain in what context one version should be used and in what context the other is appropriate. As a result, it is very difficult to predict the outcome of arguments based on equal protection's rational-basis review in the lower federal courts because, regardless of which basis is chosen, a lower court can find U.S. Supreme Court precedents to support the result. In recent years, this problem of unpredictability has been particularly acute in cases challenging laws that disadvantage persons engaged in same-sex relationships. Because rational-basis review is ordinarily deferential to legislative judgment, these challenges usually fail. There is, however, a core of successful rational-basis claims that involve a more demanding scrutiny and seem to contradict the results in more typical cases. This creates unpredictability. This Article examines this issue in three factual settings: (1) state laws that define marriage as limited to a man and a woman, (2) the U.S. military's policy of excluding gays and lesbians from military service,1 and (3) the federal Defense of Marriage Act (DOMA), which limits federal recognition of marriage to opposite-sex couples. Challenges to laws that disadvantage gays and lesbians are generally based on one of three different legal arguments: (1) that they infringe on a fundamental liberty identified in Lawrence v. Texas2 and are thus subject to heightened judicial review; (2) that they discriminate against a suspect or quasi-suspect class and are thus, once again, subject to heightened judicial review; or (3) that they do not even survive rationalbasis review under the Equal Protection Clause. This Article examines the rational-basis argument and explores the two-fold and contradictory nature of rational-basis review. …

Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions

Abstract: The Indian Civil Rights Act (ICRA or "the Act") of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is east out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: (1) exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; (2) expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; (3) declining jurisdiction protects tribes' sovereign authority to determine their own membership; and (4) the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a unifoitn rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems. INTRODUCTION Imagine yourself as a federal court judge in a region where the local Indian tribe has struggled for decades to retain tribal sovereignty and preserve cultural unity in the face of powerful state governments, loss of territory, and erosion of tribal traditions. A member of that local tribe is a repeat criminal offender and is the primary supplier of illicit drugs on the tribe's reservation. The tribal court has convicted and imprisoned the individual numerous times, but federal authorities refuse to get involved for the more serious drug offenses.1 Exasperated and left with few options, the tribal council moves to banish the individual. Banishment will mean the individual is cast out from tribal lands and removed from the tribe's membership rolls.2 After a full hearing before the tribal council and an option to appeal to the tribal court, the individual is banished from tribal lands. The tribal member now appears before your court on a writ of habeas corpus,3 alleging that the banishment constitutes unlawful detention under the Indian Civil Rights Act (ICRA or "the Act").4 If you side with the tribe and deny the writ of habeas corpus, it means that the banished individual has no further remedy. But if you agree with the banished tribal member and grant the writ of habeas corpus, you risk undermining the tribe's sovereignty by interposing a federal court in matters of tribal membership. This issue is one federal courts have struggled with in recent decades as a result of increased tribal banishment and limited federal jurisdiction over ICRA violations. In 1968, after years of hearings, Congress enacted ICRA to provide substantive civil rights - similar to those protected by the Bill of Rights and Fourteenth Amendment - to tribal members.5 Though ICRA championed individual rights typical of the Civil Rights Era, it also reflected Congress's attempt to increase tribal sovereignty. While the Act requires tribes to recognize substantive rights for tribal members,6 only one federal court procedure is available to remedy ICRA violations: the writ of habeas corpus.7 ICRA's habeas provision, 25 U.S.C. § 1303, provides: "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe. …

Aedpa's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act

Abstract: In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an "objectively unreasonable" application of U.S. Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Court should discourage trial and directreview courts from basing their decisions on AEDPA cases. INTRODUCTION "I think I would like to talk to a lawyer."1 "Could I call my lawyer?"2 "I think I need a lawyer."3 "I think I might want an attorney."4 "I think maybe I need to talk to a lawyer."5 "I don't think I want to say anything more until I talk to a lawyer."6 A layperson hearing, reading, or speaking any of these phrases might reasonably understand them as requests for an attorney, which, in a police interrogation, would bar all further questioning without the presence of counsel.7 However, courts have determined each of these phrases to be inadequate to invoke the right to counsel, and they are part of a long list of similar phrases deemed insufficient.8 The rights of a criminal suspect established in Miranda v. Arizona* are deeply ingrained in the American popular consciousness.10 Virtually anyone who has watched a contemporary police drama will know that suspects under arrest have a "right to remain silent,"11 and that they have a right to a lawyer present during interrogation, whether or not they can afford one.12 Most people likely do not know, however, how a suspect invokes his right to counsel. It turns out that doing so is fairly difficult. The central reason for this difficulty arises from Davis v. United Statesi In Davis, the United States Supreme Court held that police are free to question a suspect until he "clearly requests an attorney."14 Applying this "clear and unequivocal request" rule, courts have often interpreted the phrases uttered by suspects as questions or comments about counsel, even when a layperson might interpret them as requests for counsel.15 Phrases that employ tentative words, such as "might" or "could," tend to fall short of the Davis "clear request" standard.16 Exacerbating this trend is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),17 which imposes an extremely deferential standard for review of state court convictions by federal courts exercising habeas corpus jurisdiction.18 Under AEDPA, federal courts cannot overturn a state court's conviction unless the state court rendered "a decision that was contrary to, or involved an unreasonable application of, clearly established [fjederal law, as determined by the Supreme Court of the United States."19 This entirely novel standard of review means that when a court decides a case under AEDPA, it is not saying what the law is; rather it is saying what the limit of the law is. That is, it is saying what constitutes a patent transgression of the law, and not how the law itself should be applied. The distinction is crucial. As federal habeas courts have interpreted state Miranda rulings20 through AEDPA's highly deferential prism, they have left undisturbed lower-court decisions holding phrases to be inadequate to invoke - phrases the habeas court might otherwise call a valid invocation. …

A Cure for a "Public Concern": Washington's New Anti-Slapp Law

Abstract: In March 2010, the Washington State Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. The new Act fills a critical void in Washington's protection of free expression and petition rights. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. This Comment offers interpretive guidance for Washington courts by examining the new law, its legislative history, its constitutional underpinnings, and its relationship to the influential California anti-SLAPP statute on which it is modeled. Although the Washington Act shares many identical provisions with the California statute, Washington's Act does include important deviations from the California model. This Comment embraces long-standing canons of statutory construction to argue that the Washington Act's deviations reveal a specific intent to reject certain aspects of the California law. Among these specific rejections is the California law's broader coverage of protected free expression. While California protects expression related to "issues of public interest," the Washington Act protects expression related only to "issues of public concern." Washington courts interpreting this important provision should reject California case law and embrace the "public concern" test established by the United States Supreme Court in Connick v. Myers, a test that already occupies solid ground in Washington case law. INTRODUCTION The right to speak on issues of public concern lies at the heart of the freedom of speech.1 That freedom, guaranteed by both the federal and Washington State constitutions,2 protects the right to criticize the military draft,3 provides a shield for newspapers to publish classified documents,4 and shelters from liability groups who choose to stage peaceful boycotts.5 Despite these important protections of free expression rights, the state and federal constitutions fail to protect citizens from the exorbitant legal expense necessary to defend these rights in court. It is this failure that the Strategic Lawsuit Against Public Participation (SLAPP) exploits. Plaintiffs file SLAPPs to interfere with the protected free expression of defendants.6 A SLAPP has little or no chance of success in the courts.7 Even without a successful court judgment, though, a SLAPP accomplishes an ulterior goal: forcing defendants who legally exercised their constitutional rights of free expression into costly litigation that chills their current and future involvement in public debate.8 Until July 2010, Washington provided few options to dismiss these frivolous lawsuits.9 With the Washington Act Limiting Strategic Lawsuits Against Public Participation ("the Act" or "the Washington Act"),10 Washington joined a growing group of states - including, most notably, California - that have extended anti-SLAPP protection to defend public exercises of free expression.11 These laws allow individuals and companies, particularly media organizations, to not only dismiss lawsuits intended to frustrate their free expression rights, but also to secure attorney's fees and additional relief.12 Although the Washington Act is similar to California's anti-SLAPP statute, it is no mirror image.13 The Act's legislative history, the Washington State Constitution's protection of free expression, and a comparison of statutory texts of the Washington and California laws all demonstrate that Washington courts should not interpret the two statutes in lockstep.14 This Comment analyzes these sources and implores Washington courts to pay special attention to provisions of the California statute that the Washington State Legislature expressly adopted, modified, or ignored.15 Part I of this Comment introduces the necessity of anti-SLAPP laws to protect those who engage in acts of constitutional free expression. Part II explains the evolution of the Washington State Legislature's antiSLAPP statutory scheme, from its groundbreaking "Brenda Hill Bill" in 1989 to the passage of the new act in 2010. …

The Path out of Washington's Takings Quagmire: The Case for Adopting the Federal Takings Analysis

Abstract: A quagmire awaits anyone attempting to understand the analysis Washington courts employ to determine whether government action constitutes a "taking" of property for which compensation is due under the US Constitution The Washington takings analysis is complex and confounding, especially when compared to the relatively straightforward takings analysis established by the US Supreme Court This Article argues that the Washington State Supreme Court should reject the Washington takings analysis and adopt the federal analysis Comparing the federal and Washington analyses underscores how, as a matter of form, the Washington analysis easily stymies those who must work with it Substantively, the Washington analysis is unfounded on three key levels: (1) the existence of differences between the two analyses fatally undermines the Washington analysis; (2) the nature of those differences renders the Washington analysis constitutionally insufficient by lowering the floor of protection that property owners enjoy under the federal analysis; and (3) the differences do not enhance the federal analysis Rejecting the Washington takings analysis in favor of the federal analysis would be consistent with the doctrine of stare decisis because the Washington State Supreme Court originally intended to harmonize Washington and federal takings law, even though the Court failed to implement that intent When embracing the federal takings analysis, the Court should avoid mischaracterizations of the federal takings analysis and the temptation to justify the Washington analysis on independent state constitutional grounds for the first time INTRODUCTION 127 I THE WASHINGTON TAKINGS ANALYSIS IS MORE COMPLEX AND CONFOUNDING THAN THE FEDERAL TAKINGS ANALYSIS 129 A The Federal Takings Analysis Is Relatively Simple and Omits Due Process Considerations 129 B The Washington Takings Analysis Remains a Quagmire for Those Who Must Discern and Apply It 134 1 The Complex Washington Takings Analysis Must Be Coaxed from Disjointed Case Law 134 2 Federal Courts, the Washington Court of Appeals, and Attorneys Struggle to Apply the Washington Takings Analysis 139 II THE WASHINGTON TAKINGS ANALYSIS IS UNFOUNDED 146 A Differences Between the Washington and Federal Takings Analyses Fatally Undermine the Washington Analysis 146 B The Washington Takings Analysis Grew from an Illusory Premise into a Constitutionally Insufficient Substitute for the Federal Analysis 151 1 The Washington Analysis Is Structured on a Police-Power-or-Eminent-Domain Dichotomy and a Desire to Enhance Protections for Local Governments 151 2 The Police-Power-or-Eminent-Domain Dichotomy Is Illusory 156 3 The Washington Analysis Is Constitutionally Insufficient Because, by Design, It Hampers Property Owners' Ability to Press Takings Claims 160 C Each of the Unique Elements of the Washington Takings Analysis Offers Little Value or Has Been Discredited by the US Supreme Court 163 1 The "Fundamental Attribute" Element Stems from an Incorrect Prediction About the Direction of Federal Law, and Can Be Subsumed into the Penn Central Factors …

Eastwood's Answer to Alejandre's Open Question: The Economic Loss Rule Should Not Bar Fraud Claims

Abstract: The economic loss rule is a judicially created doctrine that bars plaintiffs from suing in tort for purely economic losses when the entitlement to recovery arises only from a contract. In Alejandre v. Bull, the Washington State Supreme Court acknowledged that there are exceptions to the rule but explicitly declined to say whether it would recognize an exception for fraud. Washington's appellate courts answered Alejandre's open question, holding that the economic loss rule barred all fraud claims except for the narrow tort of fraudulent concealment. The appellate courts interpreted Alejandre broadly to apply the economic loss rule whenever the parties had a contractual relationship and the losses were purely economic. The Washington State Supreme Court responded to these appellate decisions in Eastwood v. Horse Harbor Foundation. In Eastwood, the Court explicitly rejected the appellate courts' broad view of Alejandre and held that the economic loss rule does not bar a plaintiff from bringing a tort claim where the tort duty is independent of the contract. This Comment argues that, in light of Eastwood, Washington's economic loss rule should not bar fraud claims because the duty not to commit fraud is independent of any contract. INTRODUCTION A newlywed couple awoke to violent shaking and a horrible cracking noise as their cliff-side home started falling into the sea. They had purchased the house just a few weeks earlier upon assurances that it was safe from landslides. When the newlyweds confronted the previous owner, he told them he had purposely built the house on low-cost fill even though he knew it was a landslide risk. He had lied about the risk to induce the newlyweds to buy his house. This is fraud. But under the Washington Court of Appeals holdings in Carlile v. Harbour Homes, Inc.1 and Poulsbo Group, LLC v. Talon Development, LLC2 the economic loss rule would bar the newlyweds from recovering damages for this obvious tort. The doctrine that Washington courts once called the economic loss rule, and now call the independent duty doctrine, is a judicially created doctrine that bars plaintiffs from suing in tort for purely economic losses3 when the entitlement to recovery arises only from a contract.4 In Alejandre v. Bull,5 the Washington State Supreme Court held that the economic loss rule barred a homebuyer from bringing tort claims against the seller unless the tort was a recognized exception to the rule.6 The economic loss rule barred the plaintiffs' negligence claim in Alejandre; however, the Court recognized an exception to the economic loss rule that would have allowed the plaintiffs to bring a fraudulent concealment claim.7 In a footnote, the Court mentioned that it was aware that some courts had found a broad exception to the economic loss rule that would allow plaintiffs to bring any fraud claim in tort, but the Court explicitly declined to say whether it would adopt such an exception.8 Washington's appellate courts wrestled with how to interpret Alejandre9 but ultimately decided that the economic loss rule barred all fraud claims except for fraudulent concealment.10 The Washington State Supreme Court clarified its economic loss rule in Eastwood v. Horse Harbor Foundation}1 In that case, the Court held that the economic loss rule does not bar a plaintiff from bringing a tort where the tort duty is independent of the contract.12 To underscore this point, and to help alleviate the appellate court confusion, the Court abandoned the term "economic loss rule" and renamed it the "independent duty doctrine."13 The Court did not, however, explicitly state whether tort damages for fraud could be recovered under the newly renamed doctrine. This Comment argues that, contrary to the appellate court holdings in Carlile v. Harbour Homes, Inc.1* and Poulsbo Group, LLC v. Talon Development, LLC,15 Washington's economic loss rule should not bar fraud claims,16 because the duty not to commit fraud is independent of any contract. …