Showing papers in "Washington Law Review in 2013"

Obscurity by Design

Abstract: Design-based solutions to confront technological privacy threats are becoming popular with regulators. However, these promising solutions have leftthe full potential of design untapped. With respect to online communication technologies, design-based solutions for privacy remain incomplete because they have yet to successfully address the trickiest aspect of the Internet-social interaction. This Article posits that privacy-protection strategies such as "Privacy by Design" face unique challenges with regard to social software and social technology due to their interactional nature.This Article proposes that design-based solutions for social technologies benefit from increased attention to user interaction, with a focus on the principles of "obscurity" rather than the expansive and vague concept of "privacy." The main thesis of this Article is that obscurity is the optimal protection for most online social interactions and, as such, is a natural locus for design-based privacy solutions for social technologies. To that end, this Article develops a model of "obscurity by design" as a means to address the privacy problems inherent in social technologies and the Internet.INTRODUCTIONPrivacy by design, that is, "the philosophy and approach of embedding privacy into the design specifications of various technologies," promises to alter the law's largely reactive approach to privacy threats.1 Government and industry are gradually embracing privacy by design and other design-based strategies to protect Internet users.2 To ensure wide applicability, the Privacy by Design approach offers little domain-specific guidance. However, with the growth of the Internet and social technologies, designing usable and effective privacy for technologically mediated social interaction (such as the interaction afforded by social media) is an urgent challenge, one deserving of investigation.Over the past forty years, regulators and technologists have expended significant effort managing the privacy risk inherent in the collection and storage of personal information.3 In the era of social media and behavioral tracking, the vast databases (i.e., "big data") that store personal information pose significant threats, but these databases and their parent organizations are far from the only threat to privacy on the Internet. The growth of the social web has demonstrated that information sharing inherent in the management of online relationships through social media present their own privacy challenges. As billions of individuals participate in social media, the vast amount of information disclosed and transferred between individuals-an inherent requirement for social interaction online-poses a new class of privacy threat that should be addressed through design.4Addressing the vexing privacy problems of the social web is a challenging task. Few can agree on a conceptualization of privacy,5 much less how to protect privacy in our social interactions by design.6 There are a number of practical reasons why privacy by design has avoided the social side of the user interface. The translation of regulation to implementation is a complex process and may be more efficient when applied to formal technologies (e.g., databases, protocols).7 Additionally, there is little guidance regarding how designers should approach the implementation of privacy by design in a contextually variant, interactional space. Many substantive protections entailed in privacy by design are effectuated on the "back end" of technologies, such as data security through encryption, data minimization techniques, anonymity, and structural protection though organizational prioritization of privacy.8 However, the design of social technologies must consider "front end" privacy concerns such as privacy settings, search visibility, password protections, and the ability to use pseudonyms.9The answer to these challenges might lie in refining the goal for the design of social technologies. …

Informal Collateral Consequences

Abstract: After a thirty-year punitive binge, the nation is in the process of awakening to the vast array of negative effects flowing from its draconian crime control policies.1 The shiftis perhaps most evident in the realm of corrections, which since the early 1980s has experienced unprecedented population growth.2 Driven by a number of factors, not the least of which is the enormous human and financial cost of mass incarceration,3 policy makers are now shrinking prison and jail populations4 and pursuing cheaper non-brick-and-mortar social control options.5This Essay examines another facet of the shift: increasing concern over collateral consequences, the many ostensibly non-penal sanctions attaching to convictions, which have proliferated in recent years6 and impose disabilities that often dwarf in personal significance the direct consequences of conviction, such as imprisonment.7 Long the focus of critical scholarly commentary,8 collateral consequences recently drew the attention of the Supreme Court in its landmark decision Padilla v. Kentucky9 holding that defendants have a Sixth Amendment right to be informed of a collateral consequence (in Padilla, deportation) attaching to a guilty plea.10 Further testament to the national concern, the American Bar Association is now compiling a comprehensive inventory of collateral consequences imposed nationwide,11 casting in bold relief the many "invisible punishments" to which convicted individuals are subject.12The attention now being paid to collateral consequences is most assuredly welcome. Missing from the reappraisal, however, is attention to the range of informal consequences of conviction. Unlike formal collateral consequences, such as loss of public housing eligibility, deportation, occupational disqualification, or electoral disenfranchisement, these consequences do not attach by express operation of law. Rather, they are informal in origin, arising independently of specific legal authority, and concern the gamut of negative social, economic, medical, and psychological consequences of conviction. For instance, it is well known that a criminal conviction can legally disqualify an individual from an occupation and housing; yet, a conviction also has a very negative impact on individuals' job and housing prospects even absent such formal disqualifications. No less significant are the negative social and economic effects felt by third parties of convicted individuals, especially dependents, yet these effects too have gone largely unacknowledged in the post-Padilla discourse.This Essay makes the case that attention should be directed to the array of formal and informal collateral consequences alike that are associated with criminal conviction. Part I provides an inventory of informal collateral consequences, which include the negative effects for individuals of stigma, diminished housing and economic opportunities, and ways in which conviction can adversely affect the well-being of third parties, such as family members. Part II examines the meager extent to which such consequences have figured in criminal justice doctrine and policy to date, especially relative to plea advisement and negotiation, and argues for a more robust understanding. Part III offers recommendations on how this fuller understanding can be operationalized.The task undertaken here is as timely as it is important. While the nation's appetite for incarceration appears to be waning,13 state, local, and federal criminal justice systems continue to adjudicate millions of cases annually,14 and little reason exists to conclude that criminal prosecution and conviction will abate as the preferred public response to misconduct.15 As criminal justice actors and policymakers have become sensitized to the adverse effects of the formal collateral consequences of conviction, so too should they take account of informal collateral consequences, which can have an equal if not greater effect on individuals' lives. …

The Decline and (Possible) Renewal of Aspiration in the Clean Water Act

Abstract: In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act-creating what is commonly known as the Clean Water Act (CWA)-the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward the CWA's goals has stalled in the past two decades. This Article explores several possible reasons for that failure. Those reasons include subversion of the statutory goals at the administrative, judicial, and legislative levels due to an imbalance in power between groups interested in how the law is implemented; the degree to which the statutory goals are perceived as unrealistic by those charged with implementation; and the potential that Congress intended those ambitious goals to serve as prods for as much progress as possible, but did not actually expect them to be achieved. The Article then proposes that significantly more progress can be made if we take advantage of available means of defining the ecological integrity of aquatic ecosystems more clearly and more precisely, using as examples biological water quality criteria, functional assessment methods for wetlands restoration and protection, and the use of real-world desired future condition definitions for watersheds. Better definition of what the somewhat imprecise statutory goals mean in the real world might help to overcome the apparent belief that those goals are impossible or infeasible to attain."It's not enough that we do our best; sometimes we have to do what's required."2-Winston ChurchillINTRODUCTIONThe federal Clean Water Act (CWA)3 is a mammoth of a statute.4 Over the course of its long history,5 the CWA has spawned an equally impressive battery of implementing regulations 6 and guidance documents,7 and a huge body of case law interpreting and enforcing the statute.8This massive level of statutory and regulatory detail is explained, perhaps, by the reality that water pollution control is a very complex undertaking. Hundreds of thousands of municipal and industrial "point source[s]"9 discharge a diverse array of "pollutant[s]"10 into the "navigable waters."11 An even larger set of human activities known somewhat inelegantly as "nonpoint sources"12-indeed virtually every human use of land-contributes further to the impairment of the rivers, lakes, and coastal waters that Congress enacted the CWA to protect. Efforts to control each of those pollution sources involve technical, economic, political, and other complexities. The intricate, layered set of principles Congress adopted to distinguish fairly among those sources while still providing sufficient control to protect human health and welfare and the quality of aquatic environments reflect those complications.At times, however, this degree of complexity obscures the relatively straightforward-although admittedly ambitious-overarching objective of the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."13 Thus, while many scholars and practitioners (including me, in both capacities) have written a tremendous body of doctrinal commentary on virtually all aspects of the CWA's implementation, and offered many specific proposals for improvement, 14 my purpose in this essay honoring the fortieth anniversary of the pivotal 1972 CWA amendments is far more basic, but hopefully equally important.Most analysis of CWA implementation suggests that there has been significant progress in implementing many of the statute's discrete technical commands, although other parts of the law have been far less effective. …

Copyrights in Faculty-Created Works: How Licensing Can Solve the Academic Work-for-Hire Dilemma

Abstract: Many copyrightable works of university faculty members may be works-for-hire as defined under current U.S. copyright laws. Copyrights in works-for-hire are treated differently than copyrights in other works with respect to ownership, duration, termination rights, and requirements for transfer. Ambiguity over whether a specific faculty-created work is a work-for-hire creates legal uncertainties and potential future litigation about the initial ownership of the copyright, length of the copyright term, and termination rights which could impact all future transfers and licensing. Many universities have attempted to define ownership of faculty-created works through university policies. These policies are ineffective to alter the presumption of university ownership of works-for-hire, as they do not meet the requirements of U.S. copyright laws for a transfer of such ownership. This Comment argues that the best way to resolve these ambiguities is for the university to retain ownership of the copyrights in faculty-created works and provide the faculty creator with a license to the copyrighted work. Although perhaps counterintuitive, this Comment suggests that a licensing approach would actually result in greater certainty and better protection of the interests of both the faculty member and the university.INTRODUCTIONUniversity faculty members engage in a wide variety of activities, including teaching, research, and writing. Some of these activities result in the creation of copyrightable materials. As technology has become more fully integrated into the university environment, the variety of copyrightable faculty-created works has increased.1 In the United States, copyright protection is given to "original works of authorship fixed in any tangible medium of expression."2 In a university setting, original works of authorship might include software, websites, data compilations, technical manuals, textbooks, articles, visual artworks, fiction and non-fiction writings, musical works, video games, and on-line courses, which may themselves include a variety of copyrightable components such as text, video, sound, and pictures. There has been some debate over the past thirty years as to whether the copyrights in such materials belong to the faculty member who created them or to the university as an employer. 3 During this time period, it has become common practice for universities to take ownership of patents on faculty inventions, and in some cases these patents have benefitted the universities financially through licensing or other commercialization strategies.4 Some commenters of the past decade have speculated that universities may attempt to assert ownership over copyrights as well, particularly when the materials involved have significant potential commercial value, such as distance-learning curricula.5 Many universities have, in fact, adopted formal copyright policies that address ownership of faculty-created works.6 Despite the commenters' fears, however, most university policies surveyed express a desire for faculty members to own the copyrights to "traditional scholarly works."7The question of how to accomplish that stated goal is more difficult than it might first appear. Some commenters believe that the copyrights in many faculty works, even traditional scholarly works, belong to the university as a work-for-hire.8 Whether a work was created as a work-for-hire has a dramatic impact on the treatment of the work under U.S. copyright law. The copyrights in a work-for-hire are presumed to belong to the employer rather than the creative employee.9 The duration of the copyright in a work-for-hire is different from other works,10 and a work-for-hire does not carry termination rights for licenses.11 A work-for-hire also has special requirements for transfer of copyrights, requiring an express writing signed by both the employer and the employee.12 A university copyright policy generally does not bear the signature of both parties and is therefore likely inadequate to alter or transfer ownership. …

Static versus Dynamic Disclosures, and How Not to Judge Their Success or Failure

Abstract: Disclosure laws can serve many different purposes. This Article is the first to distinguish two of those purposes, which I call static and dynamic disclosures. In brief, static disclosures aim to improve consumers' choice from among the set of products that are already available on the market. By contrast, dynamic disclosures aim to improve the range of products from which consumers must choose, by sharpening sellers' incentives to improve the quality of their products.The Article also discusses the various ways in which the effects of static and dynamic disclosures might be measured and evaluated. In doing so, it examines and mildly criticizes the position recently advanced by Professors Omri Ben-Shahar and Carl Schneider, who argue (approximately) that disclosure almost never works, and that it should not even be considered as a policy option. While I agree with much else that Professors Ben-Shahar and Schneider say, their claim that disclosures almost never work is far too broad.INTRODUCTIONIn this Article I have three ambitions. First, I hope to show that we cannot evaluate the success or failure of any disclosure law without considering the possible goals that law might have had. I do not take this point to be hugely controversial.My second ambition, however, is to improve our understanding of two particular purposes that disclosures might serve. To this end, I distinguish here between what I will call static and dynamic disclosures. Static disclosures take a consumer's existing range of choices as more or less given, and aim merely to improve a consumer's choice from among the existing choice set. By contrast, dynamic disclosures seek to improve the existing choice set by creating incentives for sellers to improve the quality of their offerings. This distinction has not yet been discussed in the disclosure literature, but I hope to show that it has important implications for how the success or failure of disclosures can best be measured.Finally, my third ambition is to illustrate the perils of trying to analyze disclosure laws without paying attention to the specific purposes that different disclosure laws might serve. To illustrate these perils, I use as a recurring example the recent and provocative Article, "The Failure of Mandated Disclosure," by Professors Omri Ben-Shahar and Carl E. Schneider.1 It is perhaps unfair to single out this Article in such a way, for (as I discuss below) there is much that is good in the Article, and I agree with many of its conclusions. However, the systematic way in which that Article analyzes a wide range of disclosure laws (which is one of the Article's strengths) also makes it an ideal Article in which to find an occasional cautionary example showing what happens when the purposes of disclosure laws are not properly understood.With that in mind, let us proceed. Section I, below, provides some necessary background by describing Professors Ben-Shahar and Schneider's views in slightly more detail, and by relating their Article to the rest of the academic literature on disclosures. Sections II and III then develop at more length the distinction I wish to draw between static and dynamic disclosures, with Section III providing an economic interpretation of that distinction. Finally, Sections IV through VI discuss in more detail some criteria for evaluating the success or failure of various kinds of disclosure, to show how those evaluations should differ depending on whether the disclosure has static or dynamic aims.I. BACKGROUNDMandatory disclosure, we are told, is a regulatory technique that is "much used but little remarked."2 However, while I fully agree that disclosures are "much used," the case for them being "little remarked" is doubtful. Professors Ben-Shahar and Schneider themselves cite dozens of studies of the effects of various disclosure regimes; and they could easily have added more, had they not worried about overburdening their readers. …

Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts

Abstract: The reader should know through whatspectacles his adviser is viewing the problem. 1-William O. DouglasWashington Law Review (1965)Scholarship is the work-product of scholars. The word derives from the Latin schola, as in school. Hence, scholarship is related to education, which in turn is related to the advancement of human knowledge. By that measure, the best scholarship may increase our knowledge, both practical and theoretical. But when undisclosed bias affects that which is offered up as knowledge, it may unduly slant our understanding of life, law, and other things that matter. While bias-free knowledge may be a utopian ideal, it is, nonetheless, a principle worthy of our respect.Case in point: According to the Washington Post,2 the National Rifle Association has funded some of the scholarship propounding the view that the Second Amendment protects an individual right to own a gun. Before this sponsored scholarship, such an interpretation of the Amendment was regarded as tenuous.3 Over three decades and a number of books and articles later, the United States Supreme Court, in 2008, recognized for the first time an individual, though limited, constitutional right to possess a gun.4 The change has altered the political and regulatory framework and constrains attempts to stem the tide of gun violence in the United States. Whatever one makes of this, there is reason to believe that the success of a legal scholarship campaign funded by the NRA and the gun industry might well have affected the direction of the law.It is not easy to decipher which articles on the Second Amendment were paid for by the gun lobby because very few of these articles include information about financial support, if any, for the work.5 This is unsurprising because the vast majority of law reviews do not require disclosure of financial support or affiliations that might compromise the intellectual independence of their authors.6One scholar reports that in 2008 only 5.5% of law review articles included acknowledgement of financial support for research.7 Perhaps half of these acknowledged donors are universities, which routinely support research and usually have no impact on the content.8 Thus, almost ninety-five percent of law review articles included no information about whether the researcher received financial support for the work. Because virtually all law reviews have no disclosure policy, these authors are free to reveal or conceal the sources of their funding and their affiliations.9In varying ways, legislators, regulators, and judges rely upon legal scholarship in developing law and policy and in writing, amending and interpreting legal rules. Scholars have time to delve deeply into the topics on which they write. At its best, their work is respected because of the depth of inquiry involved and because of their expertise. It is important, then, for legal scholars to exercise independent judgment and likewise to be open and candid with their audiences as to how they reached their conclusions.I. IMPARTIALITY AS A PROFESSIONAL NORMAmerican judges must recuse themselves from deciding matters if their "impartiality might reasonably be questioned . . . ."10 Such impartiality is defined as the "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues . . . ."11 What is important is not only actual judicial integrity, but the appearance of integrity as well. It also is important for anyone involved in the judicial system to have full knowledge of those who judge them, including possible sources of bias.Like judges, all lawyers are expected to uphold the administration of justice, and accordingly, to avoid conduct that exhibits bias. Commentary in the Model Rules of Professional Conduct explains it this way: "A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [the Model Rules] when such actions are prejudicial to the administration of justice. …

Contract as Pattern Language

Abstract: INTRODUCTIONScholars and practitioners routinely talk about the "architecture" of individual contracts.1 Many observers have also noted the broad-brush similarity between the drafting of legal contracts and computer programming or coding.2 It is strange, then, that contract law scholarship has overlooked part of the landmark literature linking design in architecture and computer code.3 In 1977, Christopher Alexander, a professor of architecture at the University of California, Berkeley, drew upon his background in computer science to co-author A Pattern Language.4 This practical book-together with Alexander's more theoretical companion volume, The Timeless Way of Building,5 and his other work6-provided an influential blueprint for architects, urban planners, and the reading public who sought a more organic, humanistic, and democratic way of designing buildings and cities amidst the failures of modern urban renewal and widespread dissatisfaction with the course of architectural modernism.7 This article examines how Alexander's pattern language framework explains how attorneys draft contracts,8 including in response to the types of legal design problems illustrated in Larry Cunningham's book, Contracts in the Real World.9 Moreover, the pattern language rubric explains how individual legal agreements interlock to create complex transactions, and how transactions interconnect to create markets.10 Furthermore, this pattern language framework helps account for recent evidence, including from the global financial crisis, of failures in modern contract design, even in cases where sophisticated financial firms and their lawyers were the architects.11Alexander and his collaborators described a series of "patterns" or design solutions for buildings that meet specific environmental needs of individuals. A pattern represents an encapsulated abstract or conceptual solution to a recurring design problem. Patterns thus free architects and designers from having to reinvent the wheel; they can use the solutions that evolved over time as designers in the past grappled with, and crafted answers to, similar problems.12 In Alexander's work, a pattern describes a particular solution that can be used to plan growth in a particular region, city, or neighborhood, to design homes or other buildings, or to create rooms or spaces within a building. Interlocking individual patterns create larger design patterns, which, in turn, connect to form still larger patterns.13 Thus, patterns for rooms and structural elements combine to create design patterns for buildings. Arranged together, patterns for buildings form patterns for neighborhoods. Patterns for neighborhoods join to create patterns for cities and regions. Through scaling and rules that define when patterns fit together, Alexander's system created a larger "language" for architectural design.14 Alexander's architectural ideas inspired computer programmers who borrowed his idea of patterns that solved particular environmental problems and that connected into a larger language to meet their own design needs.15 The concepts in A Pattern Language shaped a generation of new computer languages and approaches to coding, particularly object-oriented programming. 16Alexander's work also provides a unique lens to look at how transactional attorneys draft contracts. However, the pattern language framework does much more than explain the function of contractual boilerplate or the process of assembling particular contracts. It also describes how individual contract patterns form complex transactional patterns, and how, in turn, complex transactional patterns form complex financial markets. For example, transactional attorneys arrange individual patterns for provisions in legal agreements-e.g., the basic provision establishing the loan of money in exchange for interest and principal repayments, representations and warranties, covenants, provisions defining default, and remedies-to form legal agreements, such as mortgages or bond indentures. …

Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students

Abstract: INTRODUCTIONConsider this. Over three years of study, most law students take a single course on the subject of contracts in which they rarely (if ever) negotiate, draft, or even review a written agreement. Truly. Actual contracts1 are quite unpopular. To illustrate what is wrong with this, it may be helpful to imagine a realm where film school students earn a graduate degree without watching a movie, writing a script, or even picking up a camera. They attend classes for which they study an assigned selection of movie reviews penned by an assortment of film critics. From the readings students are meant to discern the elements of quality filmmaking: what makes a good movie and what makes a flop. Limited context or theory is provided. So, this method suffers not just from lack of practical application, but also the absence of frameworks for critiquing the selection of reviews, the critics themselves, or their methods and processes of judgment. In class, the professor fires questions at students asking them to explain each critic's reasoning. Then, students are asked to hypothesize that particular elements of the described movie have changed. They are expected to predict, given these alterations, whether the esteemed (or hack) critic who panned the film might then praise it, or vice versa, and why. Upon graduation, those who land jobs as directors (or who strike out on their own) are handed an expensive camera, a sizeable budget, and expected to start filming.This seems implausible. Yet, this analogy reflects the current reality in many law schools with respect to a required course called Contracts. The casebooks students read mainly include judicial decisions selected and organized around legal issues that concerned contracts scholars more than a century ago. Students infrequently grapple with the murkier contract law challenges of our day. In addition, though some schools do offer upper level courses in negotiations or drafting, these are rarely required.2 Thus, future lawyers can graduate from most law schools without taking such courses.3 Yet, as practicing lawyers, drafting, reviewing, and negotiating are skills they will need to hone whether they assist with business transactions, represent consumers in disputes, help negotiate settlement agreements, or craftlegislation, as a few examples.4While there are exceptions, many instructors who attempt to cover drafting or theory in their Contracts course struggle with time allocation,5 given that helping students pass the bar exam, we believe, depends upon sufficient coverage of the common law doctrine. At the same time, many of us recognize that several of the principles of law that take up weeks of classroom time and that the bar exam tests rarely come into play in practice. These principles at times may actually contradict what happens in the courtroom when contract disputes are litigated.6 And, for lawyers representing (or who are themselves) consumers, employees, or homeowners, the common law doctrine is an insufficient aid as it has in many instances been supplemented or superseded by state and federal regulation. This is not a side issue; it should be front and center. Additionally, knowing the doctrine, even if it has good predictive value, is only a small step in helping business clients build and nurture contractual relationships. 7 Moreover, while we may, in some part "teach to the test," that test is changing. In at least one jurisdiction, the 2013 Multistate Performance Test (MPT) reportedly included a question requiring students to review and redraftportions of a proposed agreement so that the language better aligned with their client's objectives.8To be clear, I am criticizing my own methods, and do recognize that there are exceptions to this general summation of the status quo.9 However, this still appears to be the norm because we have not let go of the innovations made in the late nineteenth century by Harvard Law School Dean and Professor Christopher Columbus Langdell (1826-1906). …

Pregnant and Prejudiced: The Constitutionality of Sex- and Race-Selective Abortion Restrictions

Abstract: Six states currently restrict a woman's access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus's sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court's abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based abortion restrictions are unconstitutional on several grounds. First, the laws violate the woman's constitutional liberty rights, which protect the personal beliefs and motivations behind her decision to terminate a pregnancy. Second, the laws conflict with the Court's holding that governments cannot prohibit abortions before the fetus has reached viability. Third, while the Court's decision in Gonzales v. Carhart may support abortion restrictions motivated by moral concerns, the interests recognized in Gonzales are distinguishable from those furthered by motive-based restrictions. For these reasons, reviewing courts should strike down motive-based abortion restrictions as unconstitutional.INTRODUCTIONOn December 1, 2011, Representative Trent Franks of Arizona introduced the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act (PRENDA).1 The bill imposed criminal sanctions, including up to five years of jail time, on abortion providers who conduct the procedure when they know that the "abortion is sought based on the sex . . . or race of that child, or the race of a parent of that child."2 In the House Judiciary Committee hearing, Representative Franks proclaimed that while the country had made great strides in protecting the civil rights of women and minorities, it had not yet adequately protected the civil rights of the unborn.3 He illustrated this point with dramatic statistics:[T]oday in America between 40 and 50 percent of all African American babies, virtually one in two, are killed before they are born, which is a greater cause of death for African Americans than heart disease, cancer, diabetes, AIDS, and violence combined. . . . Fourteen million Black babies have been aborted since Roe v. Wade. . . .Now, you add to that the thousands of little girls who have been aborted in America simply because they are little girls instead of little boys. And these are travesties that should assault the mind and conscience of every American.4PRENDA is part of a larger trend of legislation banning abortions based on the motives of women.5 Before the introduction of the federal bill, three states had already banned sex-selective abortions.6 In 2011, Arizona became the first state to ban both sex- and race-selective abortions.7 Many other state legislatures introduced similar legislation in 2012.8 Some states have even considered banning selective abortions on grounds other than sex or race. In 2005, a state representative in Maine introduced a bill that would have prohibited abortions based on the sexual orientation of the fetus.9 The North Dakota legislature passed a law in 2013 banning abortions based on genetic abnormalities.10Proponents of PRENDA and similar motive-based restrictions claim that the laws are a response to a grave problem-the abortions of thousands of African-American and female fetuses in the United States.11 Opponents of these measures argue that the claims of sex- and race-motivated abortions are unfounded and that the legislation is a dishonest attempt to chip away at women's reproductive rights.12While the veracity of claims that certain fetuses are being specifically targeted for abortions is debatable, it is true that advances in reproductive technology have made it possible to identify more characteristics of a fetus at earlier stages of pregnancy.13 These technological developments are relevant to the parents' decision whether or not to have a child, as they will have more relevant data on which to base their decision. …

Contract Stories: Importance of the Contextual Approach to Law

Abstract: [A] right text . . . should be a standing introduction. It should be simple. It should seem to lie open to a student who has never met the law, and give him a footing. He need not fully understand it all, or any of it; but out of each page, each sentence, he should get enough to carry him along, and what he gets should be accurate enough to help him in his work.-Karl N. Llewellyn1[M]uch more important things have commonly been left out of the case-book by the [author] than are left in it for the instructor to leave out.-Karl N. Llewellyn2INTRODUCTIONHow law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using "stories" to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses.The use of contract stories to bring contracts alive, and to better tie theory to practice, is based upon the power of narrativity and contextualism to deepen the understanding beyond doctrinal analysis. The narrative approach to teaching law is at its best when it is highly contextualized-including contextual facts of a case (recognized facts); context of the law of precedent as a story of legal development; law creation within context of a particular cultural, economic, and social era; and those elements of case context that are left unrecognized, but likely influence party behavior and conduct (e.g., bias, discrimination). This Article will discuss these different contextual factors in relationship to the narrative approach to teaching law. This broad view of contextualism will show how narrativity not only descriptively conveys the law, but also will show the normative role of law in society and how law can be reformed to enhance that normative role.Contract law is the quintessential first-year law school course, often taught by the Socratic method of teaching. It introduces students to the doctrinal nature of law-as a series of fixed rules, principles, and standards. The rules-based nature of contracts allows the Socratic stiletto to parse from rule to exception and to exception to exceptions. However, the true Socratic teaching of law no longer holds a dominative perch in law schools, as it did some twenty or thirty years ago. It was a cherished experience when used by my contract law professor, Robert S. Summers, of Cornell Law School. But, alas, even by the second semester of the first year its ability to rivet student attention began to wane. In the end, most of my professors morphed into a lecture-discussion format. The educational benefits of a hard Socratic method of teaching are debatable and whether it is the most efficient method of teaching deductive and analogical reasoning is suspect.3 In the end, it may be efficient in the hands of a truly gifted Socratic teacher as opposed to the lazy, but brilliant, mind able to raise queries with no pre-mediated path in sight. But, even in the hands of a Socratic master, it can be argued that it is a time consuming approach in which the richness of a case cannot be completely exploited. The complexity of modern contract transactions may require a different approach.The different approach will still be a case-based approach, but one in which the case is the basis of a story-a story connecting iconic case law with modern cases that emphasize the continuity of law, as well as its inherent flexibility. This flexibility allows the law to respond to novel contract disputes. However, often what may seem novel may not be that novel after all. Thus, the tying of cases from different eras of the law into a narrative leads to a greater understanding of the dynamic nature of law. …

The Miranda Warning

Abstract: I. INTRODUCTION- ISOLATING MIRANDA'S IMPORTLargely as a consequence of American television and movies, Miranda v. Arizona1 may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops.2 And it is said that in countries where no such right actually exists, suspects have still been known, when arrested, to demand their Miranda rights.3Among the most interesting dimensions of Miranda's worldwide fame is that the case's prominence is largely a function of the warning itself.4 Television and motion pictures feature Miranda warnings not because of any suspected viewer interest in whether suspects actually have a right to remain silent,5 nor on account of the underlying substance of the right to have a lawyer during interrogation,6 nor because the general public is concerned about the right to appointed counsel for the indigent.7 None of this, to put it mildly, makes for good theater. What is good theater is the ritual of the arrest, and the Miranda warning, typically given in almost exactly the terms set forth in the Supreme Court's opinion, is a prominent feature of the ritual, even apart from the role that the warning is actually designed to serve.Professor Kamisar - with his characteristic attention to detail in support of spirited argument - provides an insightful judicial and political history of the retrenching that has marked much of Miranda's history since the Supreme Court's decision in 1966.8 In lamenting Miranda's erosion, I largely sympathize with Kamisar. But if there is a worry about the erosion of Miranda,9 it must be a worry not about the erosion of the right to remain silent itself, which existed independent of Miranda,10 nor about the right to counsel during interrogation, whose recognition and enforcement again preceded Miranda. u Instead, it must be a worry about the requirement that the police provide a warning in a certain way under certain conditions.12 Once we understand the import of various pre-Miranda decisions, we can appreciate that Miranda is about the warning itself, rather than about what the warning is a warning of. And when we understand Miranda in this way, we can focus on just what role the warning is designed to serve, and what the Court in Miranda thought it was doing in specifying almost exactly the form that the warning was to take. It is precisely this focus that will be the subject of my attention in this Response.In being about a warning, Miranda is about communication. Specifically, it is about two different dimensions of communication. One of these is the substance of Miranda's holding, which is that police officers are required - on pain of inadmissibility of the evidence obtained absent a communication - to communicate to suspects under certain conditions their right to remain silent, to have a lawyer present for the interrogation, and to appointed counsel if they are indigent.13 And the other communicative dimension of Miranda is the way in which the Supreme Court communicated its requirements to police officers - the primary subjects of the ruling - in extraordinarily clear and rule-like terms. I will consider these two communicative dimensions in turn.II. MIRANDA AS RULEEven before Miranda, involuntary confessions were plainly understood to violate the Fifth Amendment's prohibition on compelled self-incrimination and the Fourteenth Amendment's guaranty of due process.14 And even before Miranda, and still, suspects were and remain permitted to waive their privilege against self-incrimination. …

Governing Financial Markets: Regulating Conflicts

Abstract: Payment, clearing, and settlement systems constitute a central component in the infrastructure of financial markets. These businesses provide channels for executing the largest and smallest commercial transactions in local, national, and international financial markets. Notwithstanding this significant role, there is a dearth of legal scholarship exploring central clearing counterparties (CCPs) and their contributions to the regulation of financial markets. To address this gap in the literature, this Article sketches the contours of the theory that frames regulation within financial institutions and across financial markets, examines the merits of implementing CCPs, and explores the role of CCPs as primary regulators within financial markets. Applying these theoretical constructs to a practical issue, this Article analyzes Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the statute's introduction of mandatory clearing requirements in the over-the-counter (OTC) derivatives market.This Article advances several arguments that explore the merits of Title VII's clearing mandate. First, this Article posits that introducing clearing requirements and authorizing only a handful of CCPs to execute clearing obligations concentrates systemic risk concerns. Title VII's clearing mandate endows CCPs with the authority to serve as gatekeepers. As a result, these institutions become critical, first-line-of-defense regulators, managing risk within the OTC derivatives markets. Second, weak internal governance policies at CCPs raise noteworthy systemic risk concerns. CCP boards of directors face persistent and pernicious conflicts of interest that impede objective risk oversight, and thus may fail to adopt effective risk management oversight policies. Well-tailored corporate governance reforms are necessary to address these conflicts and to prevent CCP owners' self-interested commercial incentives or other institutional constraints from triggering systemic risk concerns.Finally, this Article deconstructs the theory of self-regulation that characterizes financial markets regulation. After reviewing the benefits and weaknesses of the self-regulatory approach, this Article explores the emerging New Governance paradigm. Drawing from the New Governance literature and internal corporate governance reforms employed by venture capital and private equity firms, regulators, and federal prosecutors, this Article proposes that regulators appoint an independent, third party board observer or monitor to CCPs' board of directors. The appointed board observer or monitor will endeavor to ensure the safety and soundness of CCPs' risk-management decisions and that their risk-taking decisions are consistent with the public's interest in mitigating systemic risk concerns.INTRODUCTION 187I. ECONOMIC ORGANIZATION THEORY PROMOTES THE DEVELOPMENT OF SPECIALIZED FIRMS 193A. The Theory of the Firm Reveals the Contours of Allocational Efficiency 194B. Production Decisions Require Firms to Evaluate Transaction Costs and Agency Costs 196C. Industries Endow Specialized Firms with Property Rights.. 198D. Self-Regulating Organizations Illustrate the Development of Specialized Firms in Financial Markets 1991. Financial Markets Employ a Self-Regulatory Framework 2012. The Dynamic of Clearinghouse and Exchange Ownership Evolves from Cooperative to Corporate 204II. MITIGATING SYSTEMIC RISKS REQUIRES REGULATING OTC DERIVATIVES MARKETS 207A. The Complexity of Financial Innovation and the Severity of the Crisis 208B. Dodd-Frank Introduces Mandatory Clearing 2151. Anti-Competitive Incentives Will Limit Access to Clearinghouse Membership 2222. Anti-Competitive Incentives Will Limit Clearing Eligibility 2243. Weak Clearinghouse Governance Creates Moral Hazard, Risk Management, and Systemic Risk Concerns 225C. The Dodd Frank Act Imposes Federal Corporate Governance Reforms 229III. …

An Uneasy Union: Same-Sex Marriage and Religious Exemption in Washington State

Abstract: Same-sex marriage promises to be one of the defining issues of the twenty-first century. While supporters of same-sex marriage have welcomed a shiftin the public's perception and increasing acceptance of same-sex marriage in the last decade, controversy remains over how to balance the competing rights between marriage equality and religious freedom. While most same-sex marriage statutes around the country include religious exemptions for religious officials, it is unclear how, or whether, these protections should extend to wedding service providers who have a religious objection to same-sex marriage. Conflicts between same-sex couples seeking wedding services and wedding service providers who have religious objections to same-sex marriage are inevitable, and despite the relatively recent legalization of same-sex marriage in Washington, such conflicts have already occurred and will undoubtedly continue to take place in the future. In order to balance these competing rights, this Comment argues that the Washington Legislature should adopt a "refuse and refer" method that allows wedding service providers with a religious objection to same-sex marriage, in limited circumstances, to decline to provide wedding services to same-sex couples. Such a solution would safeguard the dignitary interests of same-sex couples while also protecting wedding service providers with deep-seated religious objections to same-sex marriage from litigation for refusing to provide wedding services to same-sex couples.INTRODUCTIONOn February 13, 2012, Washington Governor Christine Gregoire signed Senate Bill 6239 into law, legalizing same-sex marriage in Washington for the first time.1 A referendum challenge to the new law was launched almost immediately, giving Washington's citizens an opportunity to decide the same-sex marriage question themselves by popular vote.2 Washington's citizens exercised this right and approved Referendum 74 on November 6, 2012. 3 Hard-fought by both sides of the same-sex marriage debate,4 the passage of Referendum 74 was by no means certain and was merely one step in the long journey of incorporating same-sex marriage into the laws and social mores of Washington's residents. While proponents of same-sex marriage hailed the passage of Referendum 74 as a step in the direction of equality of marriage for all,5 those opposed to same-sex marriage now stand in the uncertain position of adapting to the reality of the legalized practice of same-sex marriage in Washington State.The issue of same-sex marriage is both politically and socially polarizing because it is so often closely tied to deeply-held personal convictions, beliefs, and principles. For many, "[t]he debate over same-sex marriage has become for the twenty-first century what the abortion debate was for the twentieth century: a single, defining issue that divides the country in a zero-sum political battle."6 As the battle lines between those who supported and opposed same-sex marriage during the Referendum 74 debate slowly dissolve, important issues still remain regarding the impact of same-sex marriage in Washington. One such issue is how far religious exemptions should extend for those who are morally opposed to same-sex marriage on the basis of their religious beliefs. Religious exemptions are a tool that can be used by a legislature to exempt certain groups from compliance with certain parts of a law, such as an exception for churches or religiously-affiliated hospitals that might otherwise be required to provide emergency contraceptives.7Washington's Senate Bill 6239 lays out the religious exemption clause that the Washington Legislature included for same-sex marriages.8 Senate Bill 6239 provides:No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization is required to solemnize or recognize any marriage. A regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any religious organization shall be immune from any civil claim or cause of action based on a refusal to solemnize or recognize any marriage under this section. …

Reflections on Contracts in the Real World : History, Currency, Context, and Other Values

Abstract: The beginner can often go better from the present to the past than from the dim and uncertain past to the present. 1-Prof. Henry W. Ballantine (1922)INTRODUCTIONOpen any contracts casebook and you will find the content dominated by hundreds of pages of canonical appellate opinions with an old and rising average age, supplemented by notes posing questions or providing perspective.2 Visit any classroom and you will hear professors leading students through the cases by recitation of often-obscure facts while developing contending legal arguments. Consult related students and you will hear some variation on one complaint: the study often lacks sufficient familiar context.3The problem is age-old, for the description of books-if not classrooms and students-is not new but has been apt for scores of years. The learning environment has changed radically, whether considering fashions such as dress and relative formality, or norms such as student diversity or professorial solicitude for the unprepared or unconfident. The books, by contrast, have evolved glacially, attesting to the plodding pace of change in the curriculum and methodology of American legal education.Using old cases from strange settings compounds the inherent difficulty of learning the art of persuasive legal argument. Students of the twenty-first century are not often stimulated by the musty, dusty tales dominating today's contracts casebooks. Most such cases were chosen for our classroom lessons by people like C.C. Langdell, Samuel Williston, or Arthur Corbin-all born in the nineteenth century and dead for generations!I love old contracts cases as much as the next professor, and judging by their regular appearance in all standard casebooks, we professors love them quite a bit. But students hate them and have a hard time appreciating how so many of the classic cases are relevant to their lives.4 Experienced teachers know that drawing on current events stimulates student interest, yet our current contracts course materials do not make this easy.A better teaching strategy is to use at least some content plucked from contemporary disagreements and current experience, and I have attempted to provide a coherent roadmap for doing so in the book Contracts in the Real World: Stories of Popular Contracts and Why They Matter. It tells forty-five modern stories intended to bring this subject alive for a modern audience. Far from eliminating the still- valuable classics, however, the book's contemporary tales show starkly, fully, and entertainingly, how the classics relate to today's world. This brings modernity into contracts texts and classrooms.5 The stories, mostly culled from the recent news, all pivot on the dusty/musty cases, but are more interesting, accessible, and relevant to students.6 A few stories in the book will be more familiar to veteran contracts teachers, as they already appear in several leading books.7With respect to my approach, technological sophistication is both a cause and a cure: students' appetites are stoked by information- saturation arising from the proliferation of the Internet and related applications that surround them. They promptly get detailed news about contract disputes in ways no previous generation has. Students are naturally curious about how their daily study relates to the steady stream of news they receive. As a consumer of such information myself, as well as an occasional producer, I am positioned to harness technology to convert media content into pedagogical material in ways Langdell, Williston, and Corbin could scarcely have dreamt of.My narrative reflects and develops an understanding of how today's contract law bears on today's problems-showing how yesterday's contract law and yesterday's problems reappear in new guises. These stories identify the real world, contemporary social and business settings where ancient problems recur. These stories are about context, argument, possibilities, limits, and alternatives; they deal with things people know about today (celebrity personalities, electronic transactions, internet exchange, cell phones, personal lifestyle choices) and dwell less on the archaic materials necessary to break through the ancient cases (transport and milling at the dawn of the industrial revolution; nineteenth century navigation technology; communications by handout; and antiquated attitudes toward paternity, homosexuality, mental illness, gambling, drinking, and the treatment of animals). …

Mandated Disclosure in Literary Hybrid Speech

Abstract: This Article, written for the Washington Law Review's 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure. The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in "hybrid speech." The second assumption is that the hidden promotional aspects of hybrid speech create a form of legally cognizable deception. The final assumption holds that disclosure is normatively desirable, to inform audiences of hybrid speech of its hybridity, and in so doing, to remedy the perceived harms that flow from hidden sponsorship. The Article challenges these three assumptions by using as an example the little-remarked phenomenon of sponsored literature, literary texts in and around which advertising is inserted, as well as literary texts that owe their existence to commissioning advertisers. The standard disclosure literature does not consider contexts such as these, in which the decision-making process does not involve crucial questions of life or death, shelter or homelessness, solvency or bankruptcy. Thus the entertainment context of hybrid speech demands different regulatory treatment. The Article concludes that mandatory disclosure is the wrong regulatory response to hidden sponsorship because the harms that it ostensibly creates are rooted in influence, rather than deception.INTRODUCTIONThis Article, written for the Washington Law Review's 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure. The Article identifies and calls into question three widely held assumptions underpinning much regulation of embedded advertising. In particular, it takes aim at the central mechanism by which such regulation seeks to remedy any harms perceived to emanate from hidden sponsorship: disclosure. It challenges these three assumptions by using a previously unexamined terrain for sponsorship: literature. Sponsored literature consists of literary texts in and around which advertising is inserted, as well as literary texts that owe their existence to commissioning advertisers.The Article applies these three central assumptions to sponsored literature and concludes that collectively, these assumptions should be revisited and either abandoned, or more thoroughly theorized and justified. At present, these assumptions are naive, mistaken, or otherwise indefensible. In turn, undermining these assumptions weakens the case on behalf of mandated disclosure for the influence ostensibly exerted by embedded advertising, or the insertion of promotional products or messages in artistic content.1The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when advertising occurs in expressive or artistic content; that is, even when it occurs in what we could call "hybrid speech."2 Hybrid speech refers to collaboration between advertisers and content producers in the creation of content that is functionally a hybrid of promotional and artistic messages.3 The second assumption, which builds on the first, is that the hidden promotional aspects of hybrid speech create a form of legally cognizable deception. The final assumption also builds on the first, and it reflects a long history of regulatory and legislative action. It relies on the notion that disclosure is normatively desirable in that it informs audiences of hybrid speech of its hybridity and it delineates the respective contributions from both content creators and sponsors. …

A Rejoinder to Professor Schauer's Commentary

Abstract: It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last fourand-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/"totality of circumstances'V'Voluntariness" test.3 I also like what Schauer had to say about "prophylactic rules," a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the use of such rules is "ubiquitous in constitutional law"5 and "there is no special category of prophylactic rules The phrase 'prophylactic rule' is accordingly best seen as a simple redundancy, sort of like 'null and void.'"6However, when Schauer maintains that (1) the right to remain silent "existed independently] of Miranda,"1 and that (2) "the right to counsel during interrogation" also "preceded Miranda ,"8 1 have to part company with him on both counts. (I readily admit that whether there was a right to counsel during interrogation prior to Miranda is a much closer question than whether there was a right to remain silent.) Much turns on what one means by "rights."I. THE RIGHT TO REMAIN SILENTLet us look first at the right to remain silent.Schauer believes that Justice Frankfurter's 1949 plurality opinion in Turner v. Pennsylvania9 supports his view that the right to remain silent preceded Miranda by many years.10 At one point Frankfurter does say that Turner "was not informed of his right to remain silent until after he had been under the pressure of a long process of interrogation and had actually yielded to it."11 Schauer might have cited the 1963 case of Haynes v. Washington12 as well. In that case, too, writing for a 5-4 majority, Justice Goldberg noted that the defendant had never been "advised . . . of his right to remain silent."13But what does it mean to say that even before Miranda one had a right to remain silent? In both the aforementioned Turner case and in Watts v. Indiana,1* a companion case to Turner, state law required that arrested persons be given a prompt preliminary hearing.15 However, neither in Indiana nor Pennsylvania (nor in the great majority of states) was this requirement taken seriously. Unless other circumstances added up to a deprivation of due process, the mere fact that an arrestee failed to obtain a prompt preliminary hearing did not keep out any resulting confession or incriminating statement.16 Did arrestees in these states have a right to a prompt preliminary hearing? I would answer in the negative. The police did not believe arrestees had such a right and they acted accordingly. Arrestees soon found out that, as a practical matter, the police's understanding of the situation was the correct one.At no time prior to Miranda did suspects have a "right" to remain silent, at least as I define "right" and as I believe that term should be defined. It is plain that most suspects did not know they had such a right (or, to put it another way, did not realize that the police lacked any lawful authority to compel an answer). Moreover, the great majority of police officers did nothing to correct this misimpression.17 Nor is that all. The typical police interrogator proceeded as if he or she did have a right to an answer and would often persist in questioning suspects until some answers were obtained.Against this background, I would maintain that in the years before the police were required to inform suspects that they had a right to remain silent - and the police did not have to do so until Miranda instructed them that, in the absence of other protective measures, they must do so - such a right did not exist. To put it somewhat differently, I would say that requiring the police to warn custodial suspects that they had a right to remain silent - which Miranda did for the first time - established such a right. …

Washington's Electronic Signature Act: An Anachronism in the New Millennium

Abstract: Today, electronic contracting is at the forefront of how consumers, governments, and businesses conduct their affairs. Over the last several decades, electronic contracting has taken on new forms that have raised doubts about contract formation and enforceability. In order to facilitate commerce, the federal government and forty-nine states have responded by passing legislation that gives broad legal recognition to electronic signatures. Washington State is currently the only state that has not updated its electronic signature statute to comport with modern technology and ways of doing business. As a result, Washington's Electronic Authentication Act is likely preempted by federal law, and it presents an uncertain environment for electronic contracting. This Comment argues that Washington should join the overwhelming majority of states in adopting the Uniform Electronic Transactions Act to optimize its statutory framework for facilitating electronic contracting.INTRODUCTIONUnique like a thumbprint, pen-and-paper signatures have historically been essential to creating binding legal documents and commercial transactions.1 Today, the forms that modern signatures take would be unrecognizable to our great-grandparents' generation. The modern pledge may now be made by sending an email, clicking a button on a website, or using sophisticated asymmetric cryptography technology, among others.2Congress and state legislatures have tried to keep pace with this technology in order to create parity between electronic and pen-andpaper signatures.3 Around the mid-1990s, states began adopting laws giving legal recognition to various forms of electronic signatures.4 States like Utah5 and Washington6 only narrowly recognized "digital signatures" that followed specific security protocols to confirm a signer's identity.7 Other states took a broader approach and gave legal recognition to any type of electronic signature.8 In response to this patchwork of state laws, the Uniform Law Commission issued a model state law in 1999, the Uniform Electronic Transactions Act (UETA),9 which broadly recognized all kinds of electronic signatures.10Despite the promulgation of UETA, the federal government feared that states would be slow to adopt UETA, and it sought to speed the adoption of a uniform, nationwide law.11 In 2000, Congress passed the Electronic Signatures in Global and National Commerce Act (ESIGN),12 which gives broad legal recognition to electronic signatures13 and governs all interstate and international electronic transactions.14 While ESIGN borrowed similar concepts and provisions from UETA, the two are not identical.15 For example, ESIGN adds heightened consumer consent requirements,16 but it lacks other guidelines found in UETA, such as provisions regarding attribution disputes.17 In light of these similarities and differences, Congress added a unique preemption provision to ESIGN: a state that enacts the official version of UETA is exempt from federal preemption under ESIGN; a state that enacts anything other than the official version of UETA is preempted to the extent that the law either conflicts with ESIGN or prefers certain technologies over others.18To date, all states have enacted UETA except for Illinois, New York, and Washington.19 Washington's law was originally drafted to give legal effect to digital signatures20-a subset of electronic signatures that uses specific, secure technology-and it has been amended only superficially to incorporate all types of electronic signatures.21 While Illinois22 and New York23 have laws that more closely mirror UETA and ESIGN respectively, Washington's Electronic Authentication Act (WEAA) remains a relative outlier; this outlier status creates uncertainty as to whether the statute, if challenged, would survive a preemption analysis under ESIGN. Of particular concern to UETA advocates is that Washington State-home to such e-commerce pioneers as Amazon.com, Microsoft, and Expedia-trails behind all other states in its electronic signature laws. …

In Washington State, Open Courts Jurisprudence Consists Mainly of Open Questions

Abstract: Issues of public trial and the open administration of justice have been an intense focus of the Washington State Supreme Court in recent years. In its December issue, the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence, and made recommendations for clarifying the constitutional issues involved when a courtroom "closure" occurs. Just before that issue went to press, the Washington State Supreme Court decided four important public trial cases: State v. Sublett, State v. Wise, State v. Paumier, and In re Morris. The court issued fourteen separate opinions, clearly demonstrating deep divisions among the justices. This follow-up article examines the principal arguments of the new opinions, identifies what areas appear settled, and discusses the important questions that remain unresolved.INTRODUCTIONPatrick Morris was convicted of sex crimes against his daughter.1 Michael Sublett went to prison for premeditated murder.2 Both Eric Wise and Rene Paumier were convicted of burglary.3 What do these defendants have in common? At some point during their trials, a procedure was conducted in chambers instead of the public courtroom, thereby implicating both the constitutional right of each defendant to a public trial and the constitutional right of the public to the open administration of justice. In each case, the procedures were routine, longstanding practices, and the defendants made no objection. Each challenged the practice for the first time on appeal.On November 21, 2012, the Washington State Supreme Court announced its decisions in these four cases. Of the four defendants, only Sublett's conviction was affirmed. In the other three cases, the Court reversed for violation of the defendant's public trial right and ordered new trials.The four decisions comprise fourteen separate opinions. Only two cases garnered a majority (both 5-4); in the others, a lead opinion was accompanied by either three separate concurrences or one concurrence and two separate dissents.In its December issue (which went to press the week the four decisions were released), the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence (including three of these four cases at the intermediate appellate court level), and made recommendations for clarifying the constitutional and prudential issues involved.4 This article examines whether the new decisions have clarified the analytical approach, concludes they have not, and attempts to identify the areas in which the law is settled and the issues the Court has yet to resolve. Because these include the proper analytical framework for both trial and review, and involve issues that may arise in any criminal case, consensus as to the correct approach will greatly contribute to the interests of justice.Part I summarizes the constitutional rights implicated by exclusion of the public from court proceedings. Part II recaps the course of Washington public trial and open access jurisprudence. Part III analyzes the different opinions in the four recent cases, and highlights the persistent (and so far intractable) disagreements among the justices. Part IV identifies the areas in which agreement is most urgently needed so that trial courts are able to safeguard the important constitutional interests at issue.I. THE U.S. AND WASHINGTON CONSTITUTIONS GUARANTEE BOTH THE DEFENDANT'S RIGHT TO PUBLIC TRIAL AND THE PUBLIC'S RIGHT TO OPEN ACCESSWhen a Washington State judge excludes members of the public from court proceedings, or seals records related to a case, the exclusion implicates state and federal constitutional rights of the public and, in criminal cases, of the defendants.The Sixth Amendment of the U.S. Constitution and article I, section 22 of the Washington Constitution contain nearly identical provisions guaranteeing the right of an accused to a public trial. …

Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World

Abstract: Lawrence Cunningham's Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases-in summary form or in longer excerpts-are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.INTRODUCTIONThose of us who have been teaching law for a long time, and have been teaching contract law for a long time, are experts of a sort about teaching that subject. Just ask us-we'll tell you. We are also-most of us, anyway-complete amateurs. Few among us have done, for example, any empirical work about the relative benefits of different kinds of casebooks or different kinds of teaching styles. I belong to the general majority of law professors who can only offer armchair speculations. And like the general majority of law professors, I will not allow the lack of informed expertise to prevent me from expressing opinions-lots of them, and with unwarranted confidence.In this article, I will use Lawrence Cunningham's wonderful book, Contracts in the Real World,1 as the starting point for some reflections on contract law textbooks, teaching contract law, and contract law itself. Part I considers what one might learn from a broad overview of contract law texts. Part II offers a brief defense of using more full judicial opinions (or at least substantial excerpts), rather than case summaries or simply lists of doctrinal rules, in teaching contract law. Part III offers some reflections on the advantages and disadvantages of using cases involving well-known persons and events in contract law texts.I. CONTRACT TEXTSIn looking for texts on contract law, there are two major alternative categories. On one hand are the type of texts that have been used to teach contract law since contract law scholar and Harvard Law School Dean Christopher Columbus Langdell first put forward the basic theoretical and pedagogical idea over a century ago2: course-books that are basically case-books. Such texts are primarily lightly edited versions of reported judicial opinions, generally from appellate courts.3 Because of the influence of the American legal realists, who criticized the belief that legal reasoning could or should rely entirely on the analysis of cases, we now have some discussions of policy and theory interspersed with the cases.4 However, most of the pages in these course-books remain devoted to the texts of actual opinions.On the other hand are treatises, where the text contains primarily declarations of the doctrinal rules.5 To a varying extent, a treatise may also contain quick summaries of some of the more important or instructive cases. Study aids6 tend to have the general structure of treatises, though on a smaller scale, focusing on declaring the rules, with occasional reference to case summaries.7That summaries of cases-and predominantly reported appellate cases-still dominate teaching texts in contract law (and most other first-year law school courses) is itself an interesting story. The standard progress story of the history of American legal thought 8 is that the legal realists showed: (1) that formalist approaches to legal reasoning and judicial reasoning were unsustainable-based inevitably on bias and pre- judgment; (2) that legal reasoning was not really autonomous; and (3) that even if legal reasoning could be autonomous, it would be better if supplemented by policy, science, and other forms of wisdom from outside of law.The legal realist critique left its mark on legal education, though how large an impact it had can reasonably be debated. Is it an important change or a trivial one that our texts are no longer subtitled "Cases on Contracts," but now are subtitled "Cases and Materials on Contracts"?9 As reflected in these texts, the vast majority of contract law courses go beyond mere close reading of the judicial opinions, adding some amount of economic analysis, contract theory, critical reflections, and whatever else might fit under the broad realist rubric of "policy. …

Disclosure as Distribution

Abstract: This brief response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors' implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any other regulatory regime that seeks to channel and improve decisionmaking) implicitly rests on judgments regarding individuals' responsibility for their own capacities. I argue that in evaluating such regulatory regimes, focusing on efficiency through cost-benefit analysis distracts from inescapable and logically prior distributive questions regarding desert and responsibility.INTRODUCTIONProfessors Ben-Shahar and Schneider have done legal scholars and policymakers a tremendous service by collecting, in one place,1 various clues and traces of an undeniable truth: that regulatory regimes built on the compelled disclosure of information are endemic, and can be problematic. Reviewing their comprehensive research, I find little if anything to add to their identification of various instances of mandated disclosure regimes, nor of their analysis of the practical effects of those regimes-certainly nothing beyond the points already raised by Professor Craswell in his response to their project.2 So instead, I would like to focus on the normative implications of the evidence and analysis Professors Ben-Shahar, Schneider and Craswell have assembled, an issue which still calls for further development. Like Professor Craswell, I will question whether the phenomenon of mandated disclosure-as documented by Professors Ben-Shahar and Schneider-can properly be characterized as a "failure," if only to clarify what we mean when we use such a pejorative term. 3If mandated disclosure has failed, certainly we should be able to say with confidence what it has failed to do: to what end is mandated disclosure supposed to serve as a means? But beyond that, we will also have to defend that end as one worth attaining: some normative commitment must justify whatever ends the legal regime might serve. So the purpose of my response is both to expand on Professor Craswell's efforts to identify possible ends for mandated disclosure regimes, and to assess the normative commitments underlying those ends- commitments on which Craswell, Ben-Shahar and Schneider seem to agree, if only in their assumptions.I. IDENTIFYING NORMATIVE SYSTEMSIn his symposium presentation, Professor Schneider identified two species of "disclosurites"-proponents of mandated disclosure.4 The first species, he explained, appears to be motivated by concerns over dignity or autonomy. They claim that there is a moral obligation to respect this principle of autonomy by providing information to disclosees, regardless of the disclosures' costs, or of their actual effects on the disclosees' decisionmaking.5 But assuming Professor Schneider's characterization of this species of disclosurite is accurate, as far as they are concerned one cannot characterize mandated disclosure as a failure at all. To the contrary, it accomplishes precisely what it should-it satisfies disclosers' moral obligations to respect disclosees' autonomy.So with respect to the autonomy-based argument in favor of disclosure, Professors Ben-Shahar and Schneider are not really proving a failure, nor do I believe they claim to. Instead, they simply have a normative disagreement with some proponents of mandated disclosure, and have not attempted to justify their own normative framework as superior to the alternative espoused by those proponents. …

[88WashLRev281]The Lesson of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players’ Union Disclaimers of Representation

Abstract: :The NFL and NBA lockouts of 2011 challenged the limits of the balance courts have struck between collective bargaining protections and antitrust liability. In each lockout, the respective players' union argued that the bargaining relationship with team owners ended once the union disclaimed interest in continuing as its players' bargaining representative. The players further argued that with the bargaining relationship terminated, the nonstatutory labor exemption no longer shielded owners from antitrust liability for their cooperative agreements and activity. Ultimately, both lockouts settled without courts deciding whether a disclaimer of representation marks what the Supreme Court has described as an "extreme outer boundary" that is "sufficiently distant in time and in circumstances" from the bargaining process such that the nonstatutory labor exemption might no longer protect employers from antitrust liability. This Comment argues that courts should be wary of recognizing disclaimers as terminating the exemption in the wake of the 2011 lockouts. Instead, courts should extend the exemption for a reasonable period following disclaimer. By doing so, courts would reduce the possibility of introducing instability and uncertainty in the bargaining process, which the Court has recognized in the past as a significant concern. Such an extension also would help separate deserving antitrust claims from mere bargaining tactics while allowing the economic pressures facing both sides to shape their ultimate agreement.INTRODUCTIONFor professional football and basketball fans, 2011 will be remembered as the "Year of the Lockout." After collective bargaining agreements (CBAs) in the National Football League (NFL) and National Basketball Association (NBA) expired, team owners in each league locked out their players for months until new CBAs could be reached.1With hundreds of millions of dollars at stake in these bitter labor battles, players in both leagues followed the same legal game plan - dissolving their unions and accusing the owners of antitrust violations.2 The players' union in each league - the National Football League Players Association (NFLPA) and National Basketball Players Association (NBPA) - disclaimed its interest in continuing to serve as its respective players' bargaining representative.3 Although the disclaimers were not formal decertifications, the players asserted that the disclaimers dissolved their unions in identical fashion.4 Accordingly, the players said, labor law no longer shielded the owners from antitrust litigation.5Following the disclaimers, players in each league filed class-action antitrust suits, claiming that the owners had engaged in group boycotts and attempted price-fixing in violation of the Sherman Act.6 The players argued that by dissolving their unions, they had abandoned collective bargaining and the owners were now liable under antitrust law.7 The players could have achieved the same result by decertifying their unions, but decertification brings additional logistical and legal consequences.8 By disclaiming, the players dissolved their unions through a less demanding and more immediate process, but one with less certainty in litigation.9 The resulting legal battles in both leagues involved some of the biggest stars in each sport, as well as several of the country's most prominent lawyers.10The biggest difference between each lockout was the timing of each union's disclaimer. The NFLPA disclaimed representation the day before the CBA was set to expire; its players filed suit concurrently as the football owners imposed a lockout." Ultimately, the Eighth Circuit rejected a U.S. District Court judge's injunction of the lockout.12 However, the Eighth Circuit offered no opinion on the merits of the players' antitrust claims or the effectiveness of the disclaimer of representation.13 The Eighth Circuit held only that the District Court could not enjoin the lockout under the Norris-LaGuardia Act,14 which restricts courts from issuing injunctions in cases involving or growing out of a labor dispute. …

[88WashLRev245]Controlling the Prosecution of Bribery: Applying Corporate Law Principles to Define a “Foreign Official” in the Foreign Corrupt Practices Act

Abstract: :This Comment focuses on the debate surrounding the definition of an "instrumentality" within the Foreign Corrupt Practice Act's (FCPA) "foreign official" provision. The FCPA prohibits bribery of "foreign officials" but provides little guidance as to the types of entities included within the meaning of an "instrumentality." The Department of Justice construes this term broadly and therefore can aggressively prosecute alleged corruption. This Comment argues that courts should provide guidance on the definition of a "foreign official" within the meaning of the FCPA by applying principles of control drawn from corporate law. Such guidance would accomplish three important tasks. First, it would help corporations comply with the FCPA. Second, it would align with the approach used by foreign jurisdictions designated in treaty obligations. Finally, it could help achieve Congress's original objectives in enacting the legislation: namely, to prevent corruption of foreign public officials as well as the negative consequences for foreign policy.INTRODUCTIONIn the wake of the Watergate scandal, federal investigations uncovered illicit practices in both government and private business, including unreported campaign contributions and "questionable" and "illegal"1 payments to domestic and foreign political officials.2 The Securities Exchange Commission (SEC) began investigating these payments and discovered that approximately 400 U.S. corporations had made over $300 million in bribes to foreign public officials in order to secure business.3 In 1977, Congress responded by enacting the Foreign Corrupt Practices Act (FCPA)4 to criminalize bribery and improve the U.S. corporate image abroad.5 Congress noted the "severe foreign policy problems" these bribes created for the U.S., and intended for the FCPA to prevent U.S. businesses from engaging in bribery, as this would have negative implications for the image of the United States abroad.6 Congress sought to restore public confidence in American corporate practice.7 The primary evil that Congress sought to address with the FCPA was improper payments to foreign government officials, which "invariably tend[] to embarrass friendly governments, lower the esteem for the United States among citizens of foreign nations, and lend credence to the suspicions sown by foreign opponents of the United States that American enterprises exert a corrupting influence on the political processes of their nations."8The FCPA had a slow start.9 During the first quarter century of the FCPA's existence, the SEC and Department of Justice (DOT), jointly responsible for enforcing the FCPA,10 initiated only two or three cases per year." Fines tended to remain below $1, 000,000. 12 However, after an initial twenty years of relative dormancy, enforcement surged.13 Over the past ten years, the DOJ and SEC have greatly increased the number of enforcement actions and the severity of fines assessed.14 In 2010, for example, the DOJ and the SEC initiated a record of forty-eight and twenty-six cases respectively.15 This trend shows no sign of abating, and the DOJ recently confirmed its intent to "vigorously enforce" the FCPA.16 In November 2009, Assistant Attorney General Lanny Breuer remarked that the "past year was probably the most dynamic single year in the more than 30 years since the FCPA was enacted" and promised to continue "the upward trend in FCPA enforcement."17While DOJ officials commend the surge in investigations and prosecutions, the reaction in the corporate world has been less enthusiastic. Of particular concern to directors and officers of corporations doing business abroad is the rise of prosecution of individuals.18 According to Mark Mendelsohn, Deputy Chief of the Fraud Division at the DOJ, the rise in individual prosecutions is "not an accident."19 Rather, the trend reflects the Department's policy of deterring bribery by holding individuals personally accountable.20 The sanctions resulting from these enforcement actions have also risen dramatically. …

Cases and Controversies: Some Things to Do with Contracts Cases

Abstract: INTRODUCTIONNearly a century and a half has passed since Christopher Columbus Langdell waded ashore at Harvard Law School, bringing to its benighted natives the civilizing influence of law study through the "case method."1 Like his namesake, Langdell has long since sailed on to a more distant shore, but his legacy remained at the heart of legal instruction throughout the twentieth century, and persists into the present day.As a co-author of one of the two dozen or more currently-in-print Contracts casebooks,2 I obviously have both a point of view about, and a personal stake in, the survival of this particular method of instruction. Whether the legal casebook-or any other book, in the form of bound sheets of paper-will remain a part of our academic culture much longer is clearly up for grabs, however. Electronic records have so many advantages over the printed page that, at least for many purposes, they will surely become the dominant form of preserving, retrieving, and transmitting information, if indeed they are not already. But through whatever medium, I hope that legal training will continue to retain the study of "cases" as an important component of a legal education. In this brief discussion I will ruminate a little about the various ways in which case study can contribute to law study-or at least to the study of contract law, the area with which I am most familiar.Stretching back at least to Richard Danzig's 1975 exploration3 of Hadley v. Baxendale,4 contracts scholars have engaged in what is sometimes referred to as "legal archaeology." 5 They examine well-known contracts cases from a variety of angles-historical, sociological, economic, or what-have-you-to see what insights can be gleaned therefrom.6 Many cases familiar to several generations of law students have been subjected to this kind of inquiry, with interesting and sometimes surprising results. Besides Hadley, prominent cases given this sort of in-depth analysis include Peevyhouse v. Garland Coal & Mining Co.,7 Alaska Packers' Ass'n v. Domenico,8 Kirksey v. Kirksey,9 Mills v. Wyman,10 Williams v. Walker-Thomas Furniture Co.,11 and Hoffman v. Red Owl Stores, Inc.12 I did a little digging in this ground myself, some years ago, with an exploration of J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc.13 Even some unpublished studies in this genre have found their way into semi-circulation.14 These individual pieces have in turn spawned anthologies in which such case studies are collected for law students, teachers, and other interested parties.15Professor Lawrence Cunningham's Contracts in the Real World16 is somewhat different in its approach. It aims to interest the modern reader in the stories of literally dozens of contract disputes, many of which have some present-day resonance, with an eye toward assembling these bits and pieces into a structure more or less recognizable as the American common law of contract. Although I admire both the ambition of Professor Cunningham's reach and the achievement of his grasp, my aim here is a much more modest one: it is merely to discuss some of the ways in which over several decades of teaching I have employed individual cases as part of the study of contract law.I. CHESTNUTS COASTING ON AN OPEN FIRE: THE CASEBOOK TRADITIONParticularly from the perspective of a casebook author (or editor, if you prefer), it seems that no method of case selection is more time-honored (or more vulnerable to criticism) than the recycling of old "chestnuts" familiar to generation after generation of law students. These are cases that one remembers for their facts-often odd, sometimes funny, always in some sense "memorable"-more than for their legal content. What law student does not remember at least some of the following cases: the broken mill-shaft;17 the wrong (non-"Reading") pipe;18 the falling block;19 the nephew's reward for not smoking;20 the bridge to nowhere;21 the hairy hand;22 the carbolic smoke ball;23 the two ships "Peerless";24 the surprisingly pregnant cow;25 or the letter to "sister Antillico"? …

The Perfect Pairing: Protecting U.S. Geographical Indications with a Sinoamerican Wine Registry

Abstract: Chinese counterfeiters have infiltrated the wine world, falsely labeling products and using fraudulent geographical indications (GIs). GIs, which function as a type of brand, are internationally protected designations of a product's origin and characteristics. Recently, United States GIs, such as Napa or Walla Walla, have appeared on bottles of wine composed of Chinese grapes. By misappropriating U.S. brands, Chinese counterfeiters deceive and confuse consumers, disadvantage legitimate businesses, and causes health concerns. Unlike other brands, GIs protect regions, rather than individual producers. This creates a particular void: no single winery can register a GI and no single winery is harmed by fraudulent use, making counterfeits difficult to prevent, detect, and address. This Comment argues that Chinese law currently provides insufficient protection for U.S. wine GIs. As a solution, it proposes a Sino-American wine registry to effectively preserve GIs and protect the affected wines, producers, consumers, and countries.INTRODUCTIONSplashy headlines around the world decry the rise of Chinese wine counterfeits. A London Telegraph headline reads, "Red Alert Over Bordeaux Wine Fraud,"1 while a CNN.com headline laments the "Counterfeits in the Grape Wall of China."2 Meanwhile, the Australian Broadcasting Company's article, titled "Winemakers See Red Over Bogus Bottles," describes counterfeiters who "rebadged" Chinese wines as Australian.3With growing Chinese demand for foreign wines comes a corresponding increase in fraudulent products.4 For example, counterfeiters pay thousands of dollars for empty French Bordeaux bottles, only to fill them with cheap Chinese wine and sell them at inflated prices.5 Penfolds, an Australian wine that is popular and wellrecognized in China, spurred a string of knockoffs marked "Benfolds" in the same typeface as the original.6 Fake products bottled and packaged as "Canadian ice wine" are available on Chinese shelves, with frauds potentially comprising eighty percent of the ice wine in China.7Counterfeit wines create a number of concerns. For example, their labels falsely convey a reputation, which can deceive or confuse consumers.8 Unfortunately, fraudulent wines are often of much lower quality and sometimes even laced with chemicals.9 This can lead to dilution of legitimate brands, harming their producers.10 Meanwhile, counterfeiters receive an unfair advantage, benefitting from the reputation they are weakening.11United States wines have not escaped the counterfeit plague. Recently, a Chinese winery attempted to register itself domestically as "Napa Valley."12 Though it didn't obtain that particular brand, it ultimately assumed the name "Valley Napa"-despite the fact that its wine consisted entirely of Chinese-grown grapes-and marketed its wine to domestic consumers.13 In late 2012, the Chinese government finally granted protected status to the term "Napa."14 However, this protection took fourteen years of work for the Napa Valley Vintners Association,15 including a 2011 trade mission to China to promote and preserve the Napa name.16The Napa Valley struggle illustrates the problem with protecting geographical indications (GIs). GIs are label designations that indicate a wine's origin and often denote certain qualities associated with that origin.17 A form of intellectual property (IP), GIs function as brands, preserving reputation and truth in labeling.18While brand protection benefits any product, the protection that GIs offer is especially crucial for wine. Consumers select wines based on reputation-not merely those of the wine's producer or its ingredients, but also the reputation of the wine's geographic region.19 Strong regional reputations often result in economic profit, as was the case in Walla Walla, Washington. Once a dying agricultural town, the region is now booming thanks to its wine industry.20 "Walla Walla has created a brand for itself," says Richard Kinssies, a Seattle wine expert. …