Showing papers in "Washington Law Review in 2014"

The Scored Society: Due Process for Automated Predictions

Abstract: [Jennifer is] ranked 1,396 out of 179,827 high school students in Iowa. . . . Jennifer's score is the result of comparing her test results, her class rank, her school's relative academic strength, and a number of other factors. . . .[C]an this be compared against all the other students in the country, and maybe even the world? . . .That's the idea . . . .That sounds very helpful. . . . And would eliminate a lot of doubt and stress out there.-Dave Eggers, The Circle1INTRODUCTION TO THE SCORED SOCIETYIn his novel The Circle, Dave Eggers imagines persistent surveillance technologies that score people in every imaginable way. Employees receive rankings for their participation in social media.2 Retinal apps allow police officers to see career criminals in distinct colors-yellow for low-level offenders, orange for slightly more dangerous, but still nonviolent offenders, and red for the truly violent.3 Intelligence agencies can create a web of all of a suspect's contacts so that criminals' associates are tagged in the same color scheme as the criminals themselves.4Eggers's imagination is not far from current practices. Although predictive algorithms may not yet be ranking high school students nationwide, or tagging criminals' associates with color-coded risk assessments, they are increasingly rating people in countless aspects of their lives.Consider these examples. Job candidates are ranked by what their online activities say about their creativity and leadership.5 Software engineers are assessed for their contributions to open source projects, with points awarded when others use their code.6 Individuals are assessed as likely to vote for a candidate based on their cable-usage patterns.7 Recently released prisoners are scored on their likelihood of recidivism.8How are these scores developed? Predictive algorithms mine personal information to make guesses about individuals' likely actions and risks.9 A person's on- and offline activities are turned into scores that rate them above or below others.10 Private and public entities rely on predictive algorithmic assessments to make important decisions about individuals.11Sometimes, individuals can score the scorers, so to speak. Landlords can report bad tenants to data brokers while tenants can check abusive landlords on sites like ApartmentRatings.com. On sites like Rate My Professors, students can score professors who can respond to critiques via video. In many online communities, commenters can in turn rank the interplay between the rated, the raters, and the raters of the rated, in an effort to make sense of it all (or at least award the most convincing or popular with points or "karma"). 12Although mutual-scoring opportunities among formally equal subjects exist in some communities, the realm of management and business more often features powerful entities who turn individuals into ranked and rated objects.13 While scorers often characterize their work as an oasis of opportunity for the hardworking, the following are examples of ranking systems that are used to individuals' detriment. A credit card company uses behavioral-scoring algorithms to rate consumers' credit risk because they used their cards to pay for marriage counseling, therapy, or tire-repair services.14 Automated systems rank candidates' talents by looking at how others rate their online contributions.15 Threat assessments result in arrests or the inability to fly even though they are based on erroneous information.16 Political activists are designated as "likely" to commit crimes.17And there is far more to come. Algorithmic predictions about health risks, based on information that individuals share with mobile apps about their caloric intake, may soon result in higher insurance premiums.18 Sites soliciting feedback on "bad drivers" may aggregate the information, and could possibly share it with insurance companies who score the risk potential of insured individuals. …

Machines without Principals: Liability Rules and Artificial Intelligence

Abstract: INTRODUCTIONThe idea that humans could, at some point, develop machines that actually "think" for themselves and act autonomously has been embedded in our literature and culture since the beginning of civilization.1 But these ideas were generally thought to be religious expressions-what one scholar describes as an effort to forge our own Gods2-or pure science fiction. There was one important thread that tied together these visions of a special breed of superhuman men/machines: They invariably were stronger, smarter, and sharper analytically; that is, superior in all respects to humans, except for those traits involving emotional intelligence and empathy. But science fiction writers were of two minds about the capacity of super-smart machines to make life better for humans.One vision was uncritically Utopian. Intelligent machines, this account goes, would transform and enlighten society by performing the mundane, mind-numbing work that keeps humans from pursuing higher intellectual, spiritual, and artistic callings.3 This view was captured in the popular animated 1960s television show The Jetsons.4 As its title suggests, the show's vision is decidedly futuristic. The main character, George Jetson, lives with his family in a roomy, bright, and lavishly furnished apartment that seems to float in the sky. George and his family travel in a flying saucer-like car that drives itself and folds into a small briefcase. All of the family's domestic needs are taken care of by Rosie, the robotic family maid and housekeeper, who does the household chores and much of the parenting.5 George does "work." He is employed as a "digital index operator" by Spacely's Space Sprockets, which makes high tech equipment. George often complains of overwork, even though he appears to simply push buttons on a computer for three hours a day, three days a week.6 In other words, the Jetsons live the American dream of the future.In tangible ways, this Utopian vision of the partnership between humans and highly intelligent machines is being realized. Today, supercomputers can beat humans at their own games. IBM's "Deep Blue" can beat the pants off chess grand-masters, while its sister-super- computer "Watson" can clobber the reigning Jeopardy champions.7 But intelligent machines are more than show. Highly sophisticated robots and other intelligent machines perform critical functions that not long ago were thought to be within the exclusive province of humans. They pilot sophisticated aircraft; perform delicate surgery; study the landscape of Mars; and through smart nanotechnology, microscopic machines may soon deliver targeted medicines to areas within the body that are otherwise unreachable.8 In every one of these examples, machines perform these complex and at times dangerous tasks as well as, if not better than, humans.But science fiction writers also laid out a darker vision of intelligent machines and feared that, at some point, autonomously thinking machines would turn on humans. Some of the best science fiction expresses this dystopian view, including Stanley Kubrick's 1968 classic film 2001: A Space Odyssey.9 The film's star is not the main character, "Dave" (Dr. David Bowman, played by Keir Dullea), or "Frank" (Dr. Frank Poole, played by Gary Lockwood), who are astronauts on a secret and mysterious mission to Jupiter. Instead, the character who rivets our attention is HAL 9000,10 the all-knowing supercomputer who controls most of the ship's operations, but does so under the nominal command of the astronauts. The complexity of the relationship between man and the super-intelligent machine is revealed early in the film. During a pre- mission interview, HAL claims that he is "foolproof and incapable of error,"11 displaying human-like hubris. And when Dave is asked if HAL has genuine emotions, he replies that HAL appears to, but that the truth is unknown.12Once the mission begins, tensions between HAL and the astronauts start to surface. …

Machine Learning and Law

Abstract: INTRODUCTIONWhat impact might artificial intelligence (AI) have upon the practice of law? According to one view, AI should have little bearing upon legal practice barring significant technical advances.1 The reason is that legal practice is thought to require advanced cognitive abilities, but such higher-order cognition remains outside the capability of current AI technology.2 Attorneys, for example, routinely combine abstract reasoning and problem solving skills in environments of legal and factual uncertainty.3 Modern AI algorithms, by contrast, have been unable to replicate most human intellectual abilities, falling far short in advanced cognitive processes-such as analogical reasoning-that are basic to legal practice.4 Given these and other limitations in current AI technology, one might conclude that until computers can replicate the higher-order cognition routinely displayed by trained attorneys, AI would have little impact in a domain as full of abstraction and uncertainty as law.5Although there is some truth to that view, its conclusion is overly broad. It misses a class of legal tasks for which current AI technology can still have an impact even given the technological inability to match human-level reasoning. Consider that outside of law, non-cognitive AI techniques have been successfully applied to tasks that were once thought to necessitate human intelligence-for example language translation.6 While the results of these automated efforts are sometimes imperfect, the interesting point is that such computer generated results have often proven useful for particular tasks where strong approximations are acceptable.7 In a similar vein, this Article will suggest that there may be a limited, but not insignificant, subset of legal tasks that are capable of being partially automated using current AI techniques despite their limitations relative to human cognition.In particular, this Article focuses upon a class of AI methods known as "machine learning" techniques and their potential impact upon legal practice. Broadly speaking, machine learning involves computer algorithms that have the ability to "learn" or improve in performance over time on some task.8 Given that there are multiple AI approaches, why highlight machine learning in particular? In the last few decades, researchers have successfully used machine learning to automate a variety of sophisticated tasks that were previously presumed to require human cognition. These applications range from autonomous (i.e., self- driving) cars, to automated language translation, prediction, speech recognition, and computer vision.9 Researchers have also begun to apply these techniques in the context of law.10To be clear, I am not suggesting that all, or even most, of the tasks routinely performed by attorneys are automatable given the current state of AI technology. To the contrary, many of the tasks performed by attorneys do appear to require the type of higher order intellectual skills that are beyond the capability of current techniques. Rather, I am suggesting that there are subsets of legal tasks that are likely automatable under the current state of the art, provided that the technologies are appropriately matched to relevant tasks, and that accuracy limitations are understood and accounted for. In other words, even given current limitations in AI technology as compared to human cognition, such computational approaches to automation may produce results that are "good enough" in certain legal contexts.Part I of this Article explains the basic concepts underlying machine learning. Part II will convey a more general principle: non-intelligent computer algorithms can sometimes produce intelligent results in complex tasks through the use of suitable proxies detected in data. Part III will explore how certain legal tasks might be amenable to partial automation under this principle by employing machine learning techniques. This Part will also emphasize the significant limitations of these automated methods as compared to the capabilities of similarly situated attorneys. …

Policing by Numbers: Big Data and the Fourth Amendment

Abstract: INTRODUCTIONThe age of "big data" has come to policing. In Chicago, police officers are paying particular attention to members of a "heat list": those identified by a risk analysis as most likely to be involved in future violence.1 In Charlotte, North Carolina, the police have compiled foreclosure data to generate a map of high-risk areas that are likely to be hit by crime.2 In New York City, the N.Y.P.D. has partnered with Microsoft to employ a "Domain Awareness System" that collects and links information from sources like CCTVs, license plate readers, radiation sensors, and informational databases.3 In Santa Cruz, California, the police have reported a dramatic reduction in burglaries after relying upon computer algorithms that predict where new burglaries are likely to occur.4 The Department of Homeland Security has applied computer analytics to Twitter feeds to find words like "pipe bomb," "plume," and "listeria."5Big data has begun to transform government in fields as diverse as public health, transportation management, and scientific research.6 The analysis of what were once unimaginable quantities of digitized data is likely to introduce dramatic changes to a profession which, as late as 1900, involved little more than an able-bodied man who was given a hickory club, a whistle, and a key to a call box.7 Real-time access to and analysis of vast quantities of information found in criminal records, police databases, and surveillance data may alter policing8 in the same way that big data has revolutionized areas as diverse as presidential elections,9 internet commerce,10 and language translation.11 Some have even heralded big data's potential to change our assumptions about social relationships, government, scientific study, and even knowledge itself.12In the private sector, retailers have harnessed big data to produce some seemingly trivial but surprising changes to their practices.13 A much discussed example stems from Target's extensive use of data analytics to identify certain purchases, such as supplements commonly taken during pregnancy, to know whether a customer is pregnant, without the woman disclosing the pregnancy herself.14 For a retailer, pregnancy is a prime opportunity to target a consumer when shopping habits change and expand. An irate father allegedly complained to Target that his daughter was unfairly targeted as a pregnant woman with coupons only to discover, to his chagrin, that Target was better informed than he was.15 Similarly, Walmart, through its computerized retail tracking, has discovered that Strawberry Pop-Tarts and beer sell as briskly as flashlights when hurricanes are forecast. These products were quickly shipped to Florida Walmart stores in the path of Hurricane Frances in 2004.16Yet unlike the data crunching performed by Target, Walmart, or Amazon, the introduction of big data to police work raises new and significant challenges to the regulatory framework that governs conventional policing. From one perspective, the Fourth Amendment has proven remarkably flexible over time. Constitutional law has governed ordinary policing whether the crimes involved bootlegging, 17 numbers running, marijuana farming, or cell phones. As the sophistication of criminals has increased, so too have the tools of the police. In the twentieth century, perhaps no two tools have been as revolutionary to modern policing as the two way radio and the patrol car.21In this century, big data-in a variety of forms-may bring the next dramatic change to police investigations. One researcher has concluded that it will soon be technologically possible and affordable for government to record everything anyone says or does.22 How well will the Fourth Amendment's rules pertaining to unreasonable searches and seizures adapt to the uses of big data? Scholars have widely discussed the shortcomings of applying Fourth Amendment doctrines, once adequate for a world of electronic beepers, physical wiretaps, and binocular surveillance, to rapidly changing technologies. …

Understanding Discrimination in the Scored Society

Abstract: INTRODUCTION: KEEPING SCORE OF THE SCORED SOCIETYIn The Scored Society,1 Professors Danielle Citron and Frank Pasquale introduce a troubling reality: a society in which a small yet powerful group of individuals makes crucial decisions regarding a broad segment of the public. Such decisions are reached on the basis of a scoring scheme the group members secretly develop in advance. This seemingly arbitrary and possibly automated scoring process2 allows powerful entities3 to quickly and seamlessly promote their objectives while treating similar individuals differently. The scoring process also unfolds in a manner which is incomprehensible to those whom it affects. The description above is not of a distant dystopia. Rather, it is of a society we are quickly entering-or perhaps, as a technology commentator recently noted in a similar context-"sleepwalking into."4Scoring has been carried out for years in the realm of consumer credit. Yet the age of big data is leading to the dissemination of these practices to many other contexts. The scoring practices are rendered a feasible option in business, governmental, and social settings due to a multitude of effects.5 Scoring is made possible given the availability of vast quantities of personal information, collection of which is enabled by changes in business models, and the ever-lower price of digital storage facilities. It is further enhanced by advances in data analytics and the ability to effectively aggregate data.The accelerating use of scoring brings about a variety of problems, which Professors Citron and Pasquale elegantly and eloquently detail. As they demonstrate, the problems related to the expansion of the scored society can be understood on a basic and deeper, analytical level. On the basic level, these processes are problematic given the vast amount of complaints they generate,6 and the fact that they are used, at times, to the detriment of the individual.7 Here, Professors Citron and Pasquale refer to use of credit scores to allocate loans as a case in point.8 On an analytical level, the nature of these concerns could be linked to the way the process relies on biased and inaccurate datasets,9 its inherent opacity,10 or the lack of sufficient human review.* 11Yet another important concern surfacing in discussions and analyses of the scored society and the troubles big data analytics bring about is that of discrimination. In this Article, I begin to examine the relation between discrimination-based arguments and the emergence of the scored society.12 I also briefly examine what solutions could be applied to limit such concerns. This inquiry comes at a crucial time. The discrimination-based argument is already being examined and invoked when addressing the realm of scoring and big data by both academics and policymakers.13 Specifically, a recent Request for Public Comment set out by the Department of Commerce (via the National Telecommunications and Information Administration) sought advice regarding the issues arising that involve discrimination and Big Data.14 Yet there is much analytical work to be done before such arguments could be properly articulated in this ever-changing context. Perhaps most importantly, scholarship must connect the policy arguments and popular discontent noted in the context of scoring and big data analytics, with sound theoretical arguments voiced elsewhere while discussing discrimination.15 Such work is critical, as it distinguishes between valid concerns and those that merely result from a Neo-Luddite sentiment or even manipulation by various interest holders.16This Article draws out several antidiscrimination paradigms which on their face pertain to the dynamics discussed in The Scored Society, and big data in general. Such analysis allows for recognizing which discrimination-based concerns are especially acute in the scored society, as well as setting forth initial proposed responses for mitigating them, when possible. …

Outsourcing Corporate Accountability

Abstract: INTRODUCTIONThe key problem for international business law in this new millennium is the effective regulation of the global, fragmented firm,1 Globalization has enabled corporate entities to span continents and establish dominions previously reserved for kings and statesmen. But whereas rules of international law evolved to curb the excesses of these latter types of actors, there is today a lack of similar rules to contend with this century's new titans. This is the reason that many global firms operate in this unregulated space between national borders.Although a variety of national laws and corporate policies may speak to environmental and labor standards that businesses should abide by, these businesses enjoy a multitude of options regarding the structure of their operations. Their functions-from product concept, development, manufacturing, sales, shipping, and customer service-can be distributed across a variety of actors and several continents so that no two functions occur in the same place. This freedom allows businesses to escape the dictates of national regulation in favor of a less regulated space. As a result, headlines are filled with stories of corporate wrongdoing, including the tragedies at Rana Plaza in Bangladesh and Foxconn in China. According to the U.N. Special Representative for Business and Human Rights John Ruggie,The root cause of the business and human rights predicament today lies in the governance gaps created by globalization - between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation.2As a result, public actors and other stakeholders around the world have been confounded as to how- to respond when the causes and effects of such crises are separated by an ocean.This Article argues that the solution to the "governance gap" is for stakeholders to adopt the very strategy at the root of the transnational governance challenge: outsource. The advantage of outsourcing for the business sector is that it allows companies to delegate and distribute roles among several actors in a manner that avoids duplication of efforts, capitalizes on the functional advantages of the actors, and adds value through a progression of steps. Finns like Nike and Apple chose to focus on a narrower set of core competencies that better reflected their specialized skills and the activities they believed would gamer the most value. This outsourcing also made it more difficult for government actors to control giants like Nike and Apple because of geographic constraints, jurisdictional limitations, capacity, resources, and proximity. The solution, therefore, may be for government actors and other stakeholders to adopt the approach that businesses followed when faced with similar constraints: fragmentation according to functional specialization where the efforts of stakeholders are sequentially aligned in a series of value-adding activities.The effective governance of transnational business activities requires that actors match the outsourced structure of the modem firm with an outsourced approach to regulating the fragmented firm. "Outsourced regulation" requires decentralization along two key dimensions: incentives and governance. The first dimension of decentralization relates to the model of the firm that stakeholders aim to regulate: unitary-actor model or fragmented-firm model. Decentralization along this dimension requires acknowledging that not all the actors in the global value chain are the same. In fact, these actors have different interests, business profiles, and constraints. Incentives for cooperation, therefore, must speak to this diversity7 in the value chain.3However, designing incentives for all the actors in the value chain is not enough. Stakeholders must also have an effective way of transmitting those incentives to the relevant actors. …

All His Sexless Patients: Persons with Mental Disabilities and the Competence to Have Sex

Abstract: INTRODUCTIONAn article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: "The recognition that individuals with disabilities have a desire for sexual relationships with other people is a relatively new concept in the scientific community."1 We believe that this observation-wildly at odds with much of the literature referred to in this Article and in another paper by the two authors2-exemplifies the discussion in our previous paper about the confusion and misinformation that permeates all of disability law and policy, especially mental disability law. The baseline, rather, for any scholarly inquiry into this subject, must be that "[i]ndividuals [with disabilities] have the same needs for intimate relationships and sexual expression as everyone else."3With the growth in the field of mental disability law over the past forty years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily.4 However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law-even with those who are practicing in the field. The discomfort that people feel in examining this topic is further exacerbated when discussing individuals who are institutionalized. Why is this? And what does this have to do with "sanism"-an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry5 that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses?6 Consider this explanation as to how audience members responded to standard talks on this topic:If as I saw it, sanist myths, based on stereotypes, are the result of rigid categorization and overgeneralization, then they function psychologically to "localize our anxiety, to prove to ourselves that what we fear does not lie within."7We thus labeled individuals with mental illness as "deviant, morally weak, sexually uncontrollable [and] emotionally unstable."8 And often, we (especially professionals) regard them as not being human at all, and lacking human qualities including needs for affection and dignified ways of expressing affection. Our attitudes toward the sexuality of persons with mental disabilities reflect this labeling:Society tends to infantilize the sexual urges, desires, and needs of the mentally disabled. Alternatively, they are regarded as possessing an animalistic hypersexuality, which warrants the imposition of special protections and limitations on their sexual behavior to stop them from acting on these "primitive" urges. By focusing on alleged "differentness," we deny their basic humanity and their shared physical, emotional, and spiritual needs. By asserting that theirs is a primitive morality, we allow ourselves to censor their feelings and their actions. By denying their ability to show love and affection, we justify this disparate treatment.9All these tensions are heightened in cases involving institutionalized persons, in which consumer desires and provider discomforts must be acknowledged and recalibrated.10 They must also be considered carefully in the context of Professor Suzanne Doyle's observation that sex is an "indeterminate and artificial" category defined "by people who want to preserve their own political and social advantages."11It is also telling as to how uncomfortable this topic makes many people when we consider the responses of audience members to frank discussions about these issues (at a talk in Florida, one attendee leapt to his feet to exclaim, "Professor Perlin, you are an agent of the devil!");12 negative responses could be broken down into these categories:1. …

Enlightened Regulatory Capture

Abstract: INTRODUCTIONTraditional academic scholarship and political discourse generally view the concept of regulatory capture in a negative light. Indeed, empirical results demonstrate many examples of regulatory capture generating results contrary to the public interest, or at least servicing a small subset of private interests at the expense of goals articulated to serve broader segments of the polity.Despite this generally negative view, some recent scholarship speculates that regulatory capture may be used to advance more "public" goals.1 This Article takes a similar position, advancing the work of Dorit Rubinstein Reiss and Lawrence Baxter by providing a concrete empirical example of regulatory capture used to advance public goals.Cybersecurity2 presents a curious case where traditional concepts of capture-in which entities with power in a regulatory process use that power to advance their private interests3-do not seem to hold. Rather than advancing their private interests at the expense of articulated public goals,4 the entities used that power to ensure the production of strong and effective security regulations even at a higher cost to themselves. Stated differently, structural characteristics of the regulatory process in the cybersecurity context arguably forced alignment of these regulated entities' interests with the "public interests" articulated by the legislature.This Article explores the possibility of engaging private expertise through certain forms of regulatory capture to increase the legitimacy and efficacy of the regulatory process. Previous work on consensual rulemaking received mixed reviews in administrative law literature.5 The seminal body of work on this type of hybrid rulemaking, conducted by Professor Philip Harter, led to the Negotiated Rulemaking Act (NRA) amendments to the Administrative Procedure Act (APA). While the results have been mixed, the balance of academic scholarship and agency choice suggests that current approaches to engaging private expertise have not achieved their full promise.Building on Reiss' and Baxter's speculation and the groundwork laid by Harter, this Article presents cybersecurity as a successful case of engaging private expertise through legislatively encoded regulatory capture that aligned private with public interests. It contrasts this example with cases of negotiated rulemaking, a process also designed to engage private expertise but criticized for being too easily subjugated by private interests.6 Based on these examinations and a thorough empirical treatment of the cybersecurity example,7 I posit a set of general characteristics describing the regulatory environment/subject matter suggestive of when capture-like engagement of private expertise may succeed in aligning public and private interests. I describe this process, designed to leverage regulatory capture to harness private expertise for public goals, as Enlightened Regulatory Capture.This Article proceeds in three Parts. Part I traces the development of consensual rulemaking and contextualizes this work within the existing debate on the NRA and regulatory capture more broadly. It examines case studies of negotiated rulemaking in action and discusses the efficacy of this process in the context of engaging private expertise to increase efficiency and legitimacy in administrative action. Part II examines the curious case of cybersecurity rulemaking under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) in which representatives of private entities used their expertise to advance public interests. To the best of my knowledge, this is a unique circumstance, created possibly by Congressional accident.8 This Part describes how the members of the pre-rulemaking committee, all of whom were representatives of interested parties, utilized their substantive expertise to develop the best regulations without prioritizing their entities' private interests. Finally, Part III explores the particular characteristics of the cybersecurity example that make capture an effective means to engage private expertise for public goals. …

Racial Impact Statements: Considering the Consequences of Racial Disproportionalities in the Criminal Justice System

Abstract: INTRODUCTIONAfrican Americans and Latinos account for fifty-eight percent of the United States prison population-nearly twice their accumulated representation in the general population of thirty percent.1 The current rates of racial disproportionality in the criminal justice system are staggering. Racial disproportionality exists at many stages within the criminal justice system, from crime commission, to arrest, to conviction, to sentencing.2 Implicit racial biases affect each of these points in the criminal justice system.3 This Comment focuses on one way to reduce racially discriminatory effects of criminal justice laws: racial impact statements.Racial impact statements are proactive tools to reduce racial disproportionality in the criminal justice system.4 These statements project the outcomes of new criminal justice legislation and provide this information regarding potential disparate racial effects to legislators before laws are adopted or amended.5 Like environmental impact statements and fiscal impact notes, racial impact statements are short reports on the projected effects of legislation in the criminal justice context.6Currently, racial impact statements tend to operate for informational purposes only.7 Environmental impact statements require certain procedures to be followed when an adverse environmental impact is predicted to ensure decision-makers are adequately considering information and alternatives.8 In contrast, racial impact statements generally do not require any additional steps upon the prediction of disproportionate impacts on minorities.9Over the past few years, states have begun considering and adopting legislation implementing racial impact statements. Since 2007, Iowa,10 Connecticut,11 and Oregon12 have passed racial impact legislation. Minnesota adopted a similar measure through its Sentencing Guidelines Commission.13 Seven other states have attempted but failed to pass racial impact statement legislation: Texas,14 Maryland,15 Arkansas,16 Mississippi,17 Wisconsin,18 Florida,19 and Kentucky.20This Comment explains how racial impact statements may be able to help address racial disproportionality in the criminal justice system, surveys how current racial impact statements function, and suggests improvements for states considering similar legislation. Part I provides an overview of the history and potential causes of racial disproportionality in the United States criminal justice system. Although the character of racial discrimination in the United States has evolved over time, Part II explains how facially neutral criminal laws and sentencing policies continue to perpetuate racial disproportionality and disparities in the criminal justice system. Part III identifies racial impact statements as one potential way to address these racial disproportionalities by surveying currently adopted racial impact statement legislation and similar bills that have not passed. Finally, Part IV analyzes how current racial impact statements function and suggests improvements to future racial impact statement policies.This Comment advocates for three major components of effective racial impact statement legislation. The standard for judging effectiveness varies; some advocates suggest the statements are simply designed to raise awareness of disproportionate impacts before criminal justice laws take effect,21 while others hope the statements can go further and actually mitigate those disproportionalities.22 Three components could help racial impact statements at least achieve the more modest goal. First, racial impact statements should attach automatically to legislation affecting the criminal justice system without requiring the prompting of legislators' votes. Second, states should strive to develop more thorough data collection requirements to define the scope of racial impact statements. Third, more effective racial impact statement legislation should require legislators to follow certain procedures before passing legislation with a predicted significant disproportionate impact. …

Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States

Abstract: INTRODUCTIONWhatever its potential for creating loving families and fairly compensating women's labor, or for harming people whose lives and choices are constrained by oppressive legal and social structures, compensated surrogacy implicates every area of feminist concern. Understanding this, feminist theorists and academics have been deeply engaged for almost three decades in considering the complexities of compensated surrogacy. Yet, women's rights groups and feminist law reformers outside of academia have not typically led the development of jurisprudence or the efforts to regulate this practice in the United States.1This absence contrasts starkly with proactive feminist work in the areas of domestic and sexual violence law reform, reproductive rights jurisprudence, pay and labor equality, lesbian family recognition, and family laws generally.2 It can be understood, however, in light of the complex issues of gender and sexual orientation equality, racism, colonialism, wealth inequality, autonomy, health, and bioethics that surrogacy raises.3 This complexity has long divided feminists, both in feminist legal thought and in the field of women's legal rights.4This lack of consensus may help explain why Legal Voice, founded in 1978 as the Northwest Women's Law Center and a leading voice on women's issues in Washington State's courts and legislature,5 was missing from the debate during the state's first legislative response to surrogacy. In 1989, the year after the notorious Baby M decision in New Jersey,6 Washington State banned compensated surrogacy.7 The Washington Legislature did not reconsider the issue-and women's rights advocates never raised it-until a gay legislator lawyer, the father of children born to a woman acting as surrogate, proposed lifting the ban in 2010.8Just as the practice of compensated surrogacy had evolved, so had Legal Voice's willingness to engage with the issue. In 2010, the organization recognized the imperative of bringing a progressive, feminist voice to the legislative arena-a voice informed as much as possible by the experience of women acting as surrogates. After two years of community engagement, study, and introspection, Legal Voice ultimately developed a progressive, feminist framework for considering surrogacy and its legal and social implications for women.9 The framework is a set of principles, based primarily on two schools of feminist legal thought-an anti-essentialist analysis and a pragmatic approach-under the overarching goal of promoting reproductive justice.10As a former Legal Voice attorney who helped to develop this response, I write in part to share this framework and urge the application of these principles to the development of any surrogacy legislation. However, Legal Voice was not the first to offer a framework and model for surrogacy regulation.* 11 What I seek to add to the discussion is a call to feminist law reform projects to develop a shared agenda for ensuring reproductive justice in the context of assisted reproductive technologies, and, most importantly, to take leadership in the field of surrogacy regulation. The risks of compensated surrogacy arrangements are primarily borne by the women acting as surrogates, who typically hold less power than other parties to these arrangements and are more likely to be subject to economic exploitation.12 Progressive feminists thus must meet the challenge of addressing surrogacy's complexity in the legislatures and the courts. This work should focus on ensuring the humanity and dignity of the women whose interests are most at stake in the surrogacy debate.In Part I of this Article, I explore some of the primary feminist concerns about compensated surrogacy, including one that has been less examined, and in Part II, I consider the actual experience of surrogacy as currently practiced in states where it is legal in the United States. In Part III, I describe progressive feminist principles for regulating surrogacy that draw from pragmatic feminism, an anti-essentialist approach, and reproductive justice. …

Keeping up with Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State

Abstract: INTRODUCTIONIn 2008, a Pennsylvania District Attorney called a meeting with a number of teenagers and their parents in the community.1 The topic of discussion was a serious and sensitive one-child pornography. The District Attorney informed the parents and teenagers that sexually suggestive images of some of the teenagers were found circulating via cell phones among the local schools. The parents, worried about their children, asked to see the pictures. The photos showed the teenage girls in training bras, towels, and bathing suits. One parent tried to account for the pictures, saying the girls were simply being "goofballs."2 The District Attorney disagreed and threatened prosecution, calling the pictures sexually suggestive.3That same year, a teenage girl in Ohio sent nude images to her boyfriend.4 Soon after, the two broke up.5 When the ex-boyfriend decided to share the images with some of the other girls at school, the group began to harass the girl.6 Other students who found out about the pictures started calling her a "whore."7 She began to skip classes to avoid the harassment.8 In an attempt to alert others of the effects of such bullying, she went on a television station to tell her story.9 Unfortunately, the harassment continued, and two months after the interview, the girl committed suicide.10The media attention these stories received,* 11 along with others like them,12 illustrates the complexities of addressing the growing problem of juvenile sexting. Sexting is commonly considered "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet."13 As cellular phones expand their capabilities and become more ubiquitous among teenagers, prosecutors in many jurisdictions face the predicament of charging teenagers with overly severe child pornography crimes.14 Unfortunately, most state legislatures have not given this problem the attention it deserves. As of publication, only twenty states have enacted laws exempting juvenile sexting from the harsh punishments of child pornography.15 This leaves teenagers in many states, including Washington, subject to child pornography laws.This Comment examines the legal dilemmas brought on by juvenile sexting and proposes a statutory alternative to Washington's current approach. Part I provides background information on juvenile sexting and cyberbullying before discussing empirical data on juvenile immaturity. Part II explores legislative and prosecutorial responses to juvenile sexting and cyberbullying. Part III discusses the need for a change in Washington's current statutory scheme, arguing for a two- tiered statute that separates non-malicious juvenile sexting from malicious juvenile sexting. It further argues that neither tier should be subject to sex offender registration. This approach would more effectively account for juvenile immaturity, while still providing the means for punishing malicious sexting in cases like cyberbullying.I. THE RISING PROBLEM OF JUVENILE SEXTINGCell phones have become ubiquitous and studies show that juveniles are sexting.16 A 2013 study found that seventy-eight percent of teens between the ages of twelve and seventeen have a cell phone.17 Further, surveys have shown that up to twenty-eight percent of teenagers have sent a sexually suggestive or nude photo of themselves.18Advances in cell phones and cell phone applications have made it easier to send and receive sexually explicit images. Camera phones and smart phones are no longer a luxury, but are now the norm. With camera phones, users have the freedom to take pictures at any time without the inconvenience of carrying a separate camera. Smart phones can access the internet, providing the additional option of posting images to a websites and social networks. Smart phone users can also download phone application software like Snapchat,19 an application that facilitates the sexting phenomenon by providing users a sense of security that images will be destroyed rather than saved by the receiver and shared with others. …

Promoting innovation while preventing discrimination: policy goals for the scored society

Abstract: Professor Zarsky’s response 1 is an erudite and thoughtful analysis of the discrimination concerns raised by our article, The Scored Society. 2 We particularly appreciate his connection of themes in our article with literature on discrimination law. This historical awareness and theoretical sophistication demonstrates the deep continuity between our concerns and those of other legal scholars. Professor Zarsky has led us to realize that there are in fact several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our article. In this response, we clarify our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform. Before responding, though, we should acknowledge Professor Zarsky’s contributions to the field, and explain how we believe our work advances inquiry along some of the trails he has blazed with his insightful analyses of data mining, privacy, and information law generally.

Loss-of-Chance Doctrine in Washington: From Herskovits to Mohr and the Need for Clarification

Abstract: INTRODUCTIONLoss of chance is a well-established tort doctrine, and yet it remains something of a mystery. Loss of chance allows a plaintiff to recover for a lost opportunity to survive or recover from an injury or illness due to the negligence of a defendant, typically a physician.1 When it applies, the doctrine stretches traditional causation boundaries, allowing recovery to plaintiffs who were never more likely than not to survive their illness or injury.2 Such plaintiffs would have no viable claim under a rigid interpretation of common law tort principles.3 Although the concept is simple, and there is widespread agreement among states on the general principles of the doctrine, in practice courts have struggled to develop consistent, workable rules for loss of chance. Similarly, legal scholars underestimated the complexity of this doctrine. In the almost fifty years since loss of chance was first addressed by a federal court sitting in diversity in Hicks v. United States,4 scholars have given little attention to the doctrine beyond its basic contours. Much of the scholarship advocates for the adoption or rejection of the doctrine as a whole.5 Yet in loss of chance cases, details matter.This Comment critiques the struggle for coherence in the development of Washington State's loss-of-chance doctrine, and offers concrete suggestions to ameliorate the inequities and inconsistencies in current doctrine. While this Comment focuses on Washington law, these suggestions are also relevant to other jurisdictions encountering similar difficulties.The 1983 decision in Herskovits v. Group Health Cooperative of Puget Sound 6 is a landmark case for loss-of-chance precedent.7 A staple in many torts casebooks,8 Herskovits addresses three potential approaches to the loss-of-chance doctrine-the all-or-nothing approach,9 the substantial-factor approach,10 and the proportional approach.11 Herskovits officially incorporated loss-of-chance doctrine into Washington State law, at least in cases where a physician's negligence is one cause of a patient's death.12 However, the court divided on whether to employ the substantial factor or proportional approach.13 The lead opinion employed the substantial factor approach, which is a theory of causation even if the lost chance is less than even.14 The concurrence employed the proportional approach, which is a theory of valuation-it determines what the lost chance is worth.15Almost thirty years later, in Mohr v. Grantham,16 the Washington State Supreme Court again addressed the loss-of-chance doctrine.17 The Court officially adopted the Herskovits concurrence's proportional approach for the loss of a less than even chance, and extended the doctrine to include loss of chance of a better outcome in situations where patients survive negligent care but sustain serious injuries.18 It seems as if the Court intended Mohr to clarify the loose ends of Herskovits. In fact, however, Mohr created more problems than it solved, potentially sowing confusion in future cases.A recent Washington State Court of Appeals case, Estate of Dormaier v. Columbia Basin Anesthesia, PLLC,19 illustrates the practical effects of the many unanswered questions of Herskovits and Mohr. 20 In an internally contradictory opinion, Dormaier utilizes all three loss of chance approaches to different ends, depending on the issue it is trying to resolve.21 The Dormaier opinion demonstrates the need for clarification and distinct boundaries to help guide trial courts, practitioners, and juries.In Part I, this Comment first defines the loss of chance, and then identifies and explains the five distinct doctrines for which the seemingly unitary label "loss of chance" has come to stand. It then demonstrates the uneven implementation of the different approaches among the states.Part II traces the history of the loss-of-chance doctrine in Washington focusing primarily on Herskovits, and the more recent decisions in Mohr and Dormaier. …

For a Feminist Considering Surrogacy, is Compensation Really the Key Question?

Abstract: INTRODUCTIONThis symposium is devoted to a consideration of compensated surrogacy. Since I tend to approach legal questions as a feminist1 it would follow that, for me, the questions posed are "Can a feminist support compensated surrogacy? Should she?"2While I take these questions as a starting point, I cannot answer them in isolation. Any affirmative answer must be conditional, because the acceptability of compensated surrogacy-like the acceptability of surrogacy more generally-depends on the specifics of the practice.3 Ultimately, I conclude that feminists can and should support surrogacy in general and compensated surrogacy in particular so long as surrogacy is structured and regulated in ways that effectively protect the surrogate 4 This being the case, the bulk of this essay is devoted to the principles that should govern surrogacy in order to protect the surrogate.This essay proposes two substantial legal changes that are necessary to provide that protection.* 4 5 First, the law should be restructured to remove the existing systemic preference for gestational surrogacy.6 While this preference may serve a number of interests, the interests of the surrogates are not among them. Gestational surrogacy may well be the personal preference of many individual intended parents and/or surrogates and I do not propose to eliminate the option, but surrogates and intended parents alike should be free to choose between traditional and gestational surrogacy. Second, and likely more controversially, the law should be restructured so that a surrogate is recognized as a legal parent of the child.7 Assignment of legal parentage could help to redress some of the power imbalances that can lead to exploitation of surrogates.Part I of this essay details the feminist perspective from which I approach the issue. Part II provides a brief discussion of the development of the law governing surrogacy. This leads me to the two proposals I am offering, which will be discussed in Part III. Finally, in Part IV I will consider the topic of compensation directly, based on the assumption that the proposed changes are in place. The conclusion that a surrogate can (and typically should) be compensated follows readily.I. WHAT DOES IT MEAN TO TAKE A FEMINIST VIEW OF SURROGACY?The proliferation of surrogacy in all its forms has not gone unnoticed. Studies by academics in psychology, sociology, anthropology, and law have documented its rise and have examined its practices and its consequences.8 Of particular importance for my purposes is a rich body of empirical research-much of it conducted by feminists-drawing on women's actual experiences of surrogacy.9 Since meaningful empirical research could not be conducted until surrogacy was an established practice, this body of work did not exist at the time of In re Baby Mw and the insights it provides could not be taken into account in the critical literature produced at the time. Those who wrote about surrogacy in the 1980s were necessarily writing based on theory rather than on practice.* 11In my view, any feminist critique should be informed by the actual experience of women. This developing body of research presents a chance-perhaps, even, an obligation-to revisit the earlier debate about surrogacy. Surrogacy is far more common today than it was in 1988 when Baby M was, decided.12 For this reason, renewed critical analysis of the practice is essential. Thus it is hardly surprising that I join other feminist authors in this task.13 Like them, my focus is on learning from the experience of the surrogate; this essay builds on their work.Since this symposium is relatively narrowly focused on compensated surrogacy, I will not engage in a broader evaluation of surrogacy here. Yet, as I noted earlier, an articulated position on surrogacy generally is a necessary starting point. After all, if I found surrogacy to be generally unacceptable, it is hard to imagine I could approve of compensated surrogacy. …

The house of Windsor: Accentuating the heteronormativity in the tax incentives for procreation

Abstract: INTRODUCTIONThe heteronormativity1 of federal tax law and policy was no secret before United States v. Windsor.2 In that landmark decision, the U.S. Supreme Court struck down the portion of the federal Defense of Marriage Act (DOMA) that refused recognition to same-sex marriages for purposes of federal law-including the tax laws at issue in the case- as a violation of "basic due process and equal protection principles applicable to the Federal Government."3 Following the Windsor decision, the Internal Revenue Service (IRS) acted quickly to issue guidance to same-sex couples indicating how the agency would apply the decision to the federal tax laws. The IRS's guidance recognized a broader range of marriages than some had expected, and it attempted to place this broad swath of married same-sex couples on ostensibly equal tax footing with married different-sex couples.4 Given this quick action and the IRS's broad and enthusiastic interpretation of the Windsor decision in favor of same-sex couples,5 it might be tempting to postulate that we have now entered a post-heteronormative tax world.6Despite the IRS's good intentions, we are still far from a tax system in which heteronormativity is an artifact of history. As I have explained elsewhere, far from making things clear and simple for same-sex couples by placing them on equal legal footing with different-sex couples, the IRS's post-Windsor guidance actually "provides no more than the same veneer of clarity that DOMA did, as it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences."7 In this Article, I continue to plumb the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision or revenue ruling; it will take years of work uncovering the subtle ways in which heteronormativity pervades our federal tax laws and of identifying means of eliminating that heteronormativity. To further this work-and in keeping with the theme of this symposium issue, Compensated Surrogacy in the Age of Windsor-I will explore the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.* * * 8The remainder of this Article is divided into four parts. To set the stage for understanding the gap between rhetoric and reality, Part I summarizes the series of legal decisions, beginning with Windsor, that extol the equality of same-sex and different-sex couples, affirm the importance of marriage not only to same-sex couples but also to their children, and validate same-sex couples as fit parents. Part II continues to set the stage by explaining how the IRS has acted in keeping with this rhetoric by implementing the Windsor decision in a way that aims for a sexual-orientation-neutral tax system (at least insofar as the definition of "marriage" is concerned). In contrast, Part III recapitulates the longstanding heteronormativity of the tax incentives for procreation and explains the anticipated-and unremittingly heteronormative-operation of these tax incentives on compensated surrogacy post-Windsor. Indeed, because these tax incentives are now available only to couples with medically diagnosed infertility problems that impede their ability to "naturally" procreate-a problem unique to different-sex couples-these tax incentives will, if anything, be more heteronormative after Windsor than they were before. Part IV concludes by suggesting that this accentuated heteronormativity may open the previously closed door to constitutional scrutiny of the application of these incentives to procreation by married same-sex couples (and, by extension, other nontraditional families). The IRS and/or the courts could, however, easily ensure that this door remains closed by abandoning past interpretations of the deduction for medical expenses in favor of a broader, more inclusive interpretation that is in keeping with the promise of the Windsor decision and the IRS's actions post -Windsor. …

The Parcel as a Whole: Defining the Relevant Parcel in Temporary Regulatory Takings Cases

Abstract: INTRODUCTIONThe world of the relevant parcel is indeed a wonderland, where size seems to change in confusing ways.1Thirty-six years ago, the United States Supreme Court decided that courts must look at the "parcel as a whole" rather than individual property interests2 when deciding whether a regulatory taking3 has occurred. The Court, however, did not clarify how exactly the parcel as a whole should be defined.4 Consequently, courts have struggled to define the relevant parcel in regulatory takings cases.5 As one court explained, "[Repeated admonitions to use the 'parcel as whole,' ... do little to define the contours of that whole parcel in any particular case."6A recent case from the Federal Circuit7 highlights the confusion surrounding the parcel as a whole. In CCA Associates v. United States,8 apartment building owners sued the federal government under the Takings Clause of the United States Constitution.9 The owners argued that a temporary regulatory taking10 occurred when two federal housing acts deprived them of their contractual right to prepay their mortgage and exit a low-income housing program.11Initially, the Court of Federal Claims determined that the relevant parcel was the owners' investment in the property.12 In doing so, the trial court relied on the Federal Circuit's parcel as a whole approach in Cienega Gardens v. United States (Cienega VIII),13 a temporary regulatory takings case involving the same federal housing acts.14 Using Cienega Vfff's approach, the trial court held that a temporary regulatory taking had occurred.15While CCA Associates was pending appeal, the Federal Circuit changed its parcel as a whole approach in Cienega Gardens v. United States (Cienega X).16 In Cienega X, the Federal Circuit determined that the relevant parcel was actually the property's entire lifetime value.17The Federal Circuit's change in methodology created a considerably different result in CC4 AssociatesUsing Cienega Xs lifetime value approach, the Federal Circuit held that no temporary regulatory taking had occurred in CC4 Associates.19 Although the facts remained the same, the court changed the relevant parcel-thereby also changing the case's outcome.20As CCA Associates demonstrates, the parcel as a whole impacts whether a regulatory taking has occurred.21 If the parcel is defined too broadly, a taking can be disguised.22 Conversely, if the parcel is defined too narrowly, a taking can appear to emerge.23 As a result, the parcel as a whole plays an important role in regulatory takings cases,24 particularly those involving temporary regulations, as in CCA Associates. But despite the relevant parcel's importance, significant confusion remains as to how the parcel should be defined.This Comment analyzes the parcel as a whole in temporary regulatory takings cases, specifically those involving lost income. Part I traces the Supreme Court's regulatory takings jurisprudence. Part II examines the development of the parcel as a whole in the Court's regulatory takings jurisprudence. Part III discusses current confusion in the Federal Circuit regarding how the relevant parcel should be defined in temporary regulatory takings cases. Finally, Part IV argues that the relevant parcel in temporary regulatory takings involving lost income should not be determined by the property's entire lifetime value. Neither Supreme Court jurisprudence nor standard economics supports this interpretation of the parcel as a whole. Instead, this Comment argues that the relevant parcel should be determined by the owner's investment in the property in consideration with principles of fairness and justice.I. THE SUPREME COURT AND REGULATORY TAKINGS : GUIDING PRINCIPLES, BALANCING TESTS, AND TEMPORARY TAKINGSThe Supreme Court generally avoids drawing bright-line rules in regulatory takings cases.25 Instead, the Court prefers to examine "a number of factors" rather than use a "mathematically precise" formula. …

Much Ado about Something: The First Amendment and Mandatory Labeling of Genetically Engineered Foods

Abstract: INTRODUCTIONSince first becoming commercially available in the mid-1990s, genetically engineered varieties of certain major food crops have come to dominate the American agricultural landscape. More than eighty percent of the corn and ninety percent of the soybeans grown in the United States are now produced from genetically engineered (GE) seed.1 Correspondingly, food containing ingredients produced through biotechnology has become ubiquitous-if not readily apparent-in American grocery markets. The Congressional Research Service estimates that two-thirds of processed conventional foods contain ingredients produced through genetic engineering.2The proliferation of GE foods3 has raised concerns about possible adverse impacts, which have in turn prompted calls for laws requiring that such foods be labeled. Sixty-four countries around the world now require labeling of GE foods, 4 up from fewer than twenty in 2003.5 Although surveys reveal that Americans overwhelmingly support mandatory labeling,6 efforts to enact legislation have encountered stiff, well-funded opposition from manufacturers of GE seed and the processed food industry. Citizens' initiatives that would have imposed labeling requirements were narrowly defeated in California in 2012 and in Washington the following year.7 And although bills in Connecticut and Maine have been signed into law, labeling of GE foods sold in those states will not be required until certain conditions, including the enactment of similar laws in other states, have been met.8 To date, only one state, Vermont, has passed a GE food labeling law with a specified effective date.9The passage of similar legislation in other jurisdictions seems increasingly likely. In 2013, state legislators in twenty-six states introduced GE food labeling bills.10 In early 2014, the Grocery Manufacturers Association (GMA), a leading opponent of mandatory labeling, itself proposed federal legislation that would establish standards for voluntary labeling and would effectively preempt states from imposing stricter requirements.11 In the meantime, the GMA and other labeling opponents prepare to challenge existing and prospective state laws on several constitutional grounds. First, they will likely contend that certain existing federal laws, including those that prohibit misbranding and require disclosure of certain nutritional information, preempt states from requiring labels on GE foods. Second, they will likely assert that any state law would violate the commerce clause. Third, they will likely argue that compulsory labeling would infringe on producers' First Amendment rights by obligating them to communicate information to consumers they would rather not disclose.This Article evaluates the free speech implications of laws requiring that GE foods be labeled and concludes that such regulations would meet all First Amendment requirements for compelled commercial speech. Part I traces the history of food labeling in the United States, the advent of genetic engineering, and the application of that technology in agriculture and the food industry. Part II evaluates the scope of commercial free speech and the appropriate test to be applied in determining whether a GE food labeling law would violate the First Amendment. Part III examines the impacts of an agricultural and food system increasingly dominated by GE crops. It explains how controversy over a single issue, whether GE foods pose a potential risk to human health, has stunted the debate over whether mandatory labeling serves a useful purpose by diverting attention from other material impacts. It concludes that greater consumer and public awareness of the adverse environmental, economic, cultural, and social impacts of GE foods would serve a substantial government interest.I. BACKGROUNDA. History of Food LabelingFor most of human history, there was little reason to label food for retail sale. Food was typically sold in its natural state, or at least in some easily recognizable form, so buyers could rely on their physical senses both to identify it and to determine its quality. …

The Not So Speedy Trial Act

Abstract: INTRODUCTIONIt is an idea as old, if not older, than Magna Carta: "justice delayed is justice denied/'1 That principle is a vital component of any equitable system of criminal justice It is vital for a reason: delays in justice are destructive to defendants' rights and to the public good2 For this reason, Congress passed the Speedy Trial Act of 19743 (STA or Act) to reduce delays between a criminal defendant's arraignment and trial Congress believed the STA would protect the public's significant interest in timely justice, both as a matter of fairness and as a way to reduce the financial burden of judicial administration4Given the enormous public interest involved in speedy trials, one would think that federal trial and appellate courts would follow the strict structures of the Act;5 those structures were designed precisely to prevent pretrial delays and the concomitant weakening and expense of the federal criminal justice system6 Although the STA has now been in place for over thirty years, federal courts continue, whether through inadvertence or intention, to skirt its statutory text and purpose Lower federal courts also routinely flout the Supreme Court's repeated admonishments that courts must abide by the STA as it is written- without adding judicial gloss7 Twice the Supreme Court has admonished lower courts not to impose their own extra-textual limitations onto the Act Yet, as will be shown in Parts III through V, lower federal courts have failed to heed the Court's commands The frequency of these end-runs around the STA are problematic because they lead to unreasonable delays in criminal cases which, in turn, create a detriment to criminal defendants and to the public interestSo what can be done? This Article argues that the legal academy, lawyers, and federal courts at all levels can ensure-through scholarship, advocacy, and statutory interpretation-that the Act's text and central purpose are faithfully followed, and consequently, that unacceptably long pretrial delays will be an anomaly and not the growing norm Part I summarizes the interests animating the STA, how it operates, and the judiciary's initial response to it The next four Parts cover specific STA issues Part II highlights how district courts continue to disregard the Supreme Court's decision about when STA rights can be waived by criminal defendants Part III details how lower courts continue to undermine the STA through erroneous interpretations and applications of the ends-of-justice provision Parts IV and V discuss how federal courts mistakenly apply the doctrines of judicial estoppel and ineffective assistance of counsel to claims implicating the STA And Part VI explains the reasons why courts undermine the STA and provides a comprehensive approach for resolving such problems so far as they affect every actor in the criminal justice system, from defense attorneys to the legal academy, to the courtsThen Assistant Attorney General (and later Chief Justice of the United States Supreme Court) William H Rehnquist, may have said it best-or at least most directly-when he considered the solution to pretrial delays in federal courts He declared, "[I]t may well be that the whole system of federal criminal justice needs to be shaken by the scruff of its neck, and brought up short with a relatively peremptory instruction to prosecutors, defense counsel, and judges alike that criminal cases must be tried within a particular period of time"8 That boldness indicated severity of the problem The lingering question, however, was what, if anything, was to be done about the problem of justice delayed?I UNACCEPTABLE DELAYA The Interests Animating the Speedy Trial Act and the Judiciary 's Initial ResponseThe right to a speedy trial has roots going back to the Magna Carta9 From those early roots it began to sprout in the colonial Bill of Rights where George Mason wrote that "a man has a right to speedy trial …

This Is Your Sword: How Damaging Are Prior Convictions to Plaintiffs in Civil Trials?

Abstract: INTRODUCTIONEmbedded in the law are strong beliefs about prior criminal convictions and their impact on a witness and a trial. In this Article, we describe the results of an experiment that explored the validity of those beliefs.The story the law tells about prior conviction evidence starts with the practicing bar. Overall, lawyers consider prior conviction evidence to be very damaging. A good metaphor for how lawyers view prior crimes evidence is that the evidence is like a bomb: extremely damaging to the direct target (the credibility of the witness) but with potentially devastating collateral damage well beyond that target (the outcome of the case, other witnesses, damage awards).1 As a result, lawyers may go to great lengths to keep prior conviction evidence out of the case, including counseling clients not to testify in their own defense.2The law's story about prior conviction evidence is also apparent in the rules of evidence, which single out prior convictions with a special rule governing their admissibility, a testament to their sui generis status.3 Rule 609 unequivocally reifies the notion that a convicted criminal is likely to be a liar because it allows the admission of prior conviction evidence to impeach the credibility of the witness.4 It is no surprise, therefore, that lawyers fear this prejudicial evidence. Lawyers especially fear prior conviction evidence when offered against a witness who is African-American, because of worries about enduring prejudice against African-American men and criminality.5But are these beliefs, held so strongly by lawyers and reflected in the Rules of Evidence, valid? This Article summarizes a recent study, the intriguing results of which upset some of the assumptions embedded in the story the law tells about prior convictions.Our study is unique in that it tested the impact of prior conviction evidence in a trial scenario designed to be as realistic as possible. Our study differed from prior studies in a number of ways designed to maximize realism. For example, we used a video of a trial that had been vetted by several experienced practitioners, our mock jurors were drawn from two actual jury pools, and our evidence was a realistic prior conviction and not a "smoking gun."* * * * * 6We discovered an effect that was more complex and nuanced than the story told by the law. First, in our study, the admission of a prior conviction for a crime involving dishonesty was not the explosive bomb depicted in legal lore; it did not directly change the outcome of the case in any statistically significant way. Moreover, our juror subjects generally denied that the prior conviction evidence hurt the credibility of the witness. Despite lawyers' fears about the devastating effect of prior conviction evidence, the jurors in our study were able to stay focused on the merits of the case despite the introduction of the evidence and its explicit use by defense counsel. The study also shows an interesting and surprising result with regard to race: juror use of the prior conviction evidence did not differ in a statistically significant way between the African-American and white plaintiffs.The prior conviction evidence did, however, change the trial. It just changed the trial in a way that was more nuanced than the simplistic story told by lawyers and the rules. In our study, the introduction of the prior conviction evidence had a subconscious effect on the jurors that led them to turn the trial into a zero-sum credibility contest in which believing one side meant disbelieving the other. Jurors who heard the prior conviction evidence resolved the case by first deciding which party to believe, and then deciding who won. This zero-sum credibility effect happened only in the trials in which the prior conviction was admitted. The jurors who saw the trial with no prior conviction evidence were more focused on the merits and could believe one party or both parties equally. …

Not-So-Harmless Error: A Higher Standard for Mitigation Errors on Capital Habeas Review

Abstract: INTRODUCTIONThis Comment addresses which harmless error standard should be used when analyzing mitigation errors on habeas corpus review. Habeas corpus review occurs when a defendant exhausts his or her state appeals and subsequently seeks the ancient writ of habeas corpus1 as codified in 28 U.S.C. § 2254.2This Comment examines cases where the defendant claims that the state trial court violated his or her constitutional rights during sentencing by committing mitigation error. During the sentencing phase of a capital punishment trial the defendant may present mitigation evidence-any relevant information regarding the defendant's person and history-that may cause a juror to deliver a sentence less than death.3 Mitigation errors often take one of two forms: Lockett error or Penry error. Lockett error occurs when the court denies the defendant the chance to present any relevant evidence that may cause a jury to deliver a sentence less than death.4 Mitigation may include evidence of a difficult family history, mental disturbance, healthy adjustment to life in prison, emotional disturbance, or false imprisonment.5 In fact, the United States Supreme Court has said that virtually no limits are placed upon what evidence a capital defendant may offer to mitigate his or her sentence.6 Penry error occurs when the jury is precluded from giving full meaning and effect to the defendant's evidence during deliberations and in making their sentence, usually through poorly written jury instructions.7 The wording of these jury questions may preclude full consideration of mitigation evidence, resulting in Penry error.8 Throughout this Comment, the term "mitigation error" will be used in reference to errors that preclude core elements of mitigation evidence,9 namely Lockett error and Penry error.10In order to logically and effectively show why the United States Supreme Court should adopt the "harmless beyond a reasonable doubt" standard articulated in Chapman v. California,11 this Comment proceeds in six parts. Part I discusses the general background of capital punishment cases. Part II looks at the foundational capital sentencing mitigation cases. Part III examines three key ingredients in capital habeas harmless error review. Part IV surveys the circuit split. Part V argues that the Court should reject the Brecht standard and adopt the Chapman standard for habeas review of mitigation errors. Finally, part VI considers the impact of mitigation error upon jurors.I. HOW DIFFERENT IS DEATH? AN OVERVIEW OF A CAPITAL PUNISHMENT CASEThe 1970s was a tumultuous era for this nation's capital punishment jurisprudence: 1972 saw a de facto moratorium on the death penalty initiated by the Court in Furman v. Georgia,12 followed by its resuscitation a short four years later in Gregg v. Georgia.13 Only two years after Gregg, the Court decided another landmark case that protected a capital defendant's right to present mitigation evidence: Lockett v. Ohio.14 In Lockett the Court offered a surprising-and prophetic-sliver of self-deprecation: "The signals from this Court have not . . . always been easy to decipher. The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance."15 Ironically, Chief Justice Burger wrote these words in a plurality opinion that was followed by four separate opinions.16 Unfortunately, the Court's capital punishment jurisprudence remains foggy and complex, providing fodder for circuit splits and scholarship.When the United States Supreme Court discussed the idea that death is different in Furman v. Georgia,17 it began a conversation in United States jurisprudence that philosophers had long been debating.18 The moral, intellectual, and legal battle continues in the nation's discourse- a quick Internet news search reveals hundreds of articles discussing various aspects of the complex topic.19 Questions surrounding the cost and efficacy of capital punishment abound. …

"Without Good Cause": The Case for a Standard-Based Approach to Determining Worker Qualification for Unemployment Benefits

Abstract: INTRODUCTIONUnemployment benefits provide a critical buffer against the social and economic consequences that can befall people who are out of work. Despite the important role these benefits play, not all unemployed people are eligible to receive them. In Washington, workers who voluntarily leave their jobs must establish "good cause" for quitting to qualify for benefits.1 For forty years after Washington first provided unemployment benefits, the "voluntary quit" statute provided a flexible, standard-based definition of good cause. However, in the 1970s, the legislature began to narrow the definition of good cause and restrict the discretion that decision-makers had to determine whether workers established good cause. This trend ultimately transformed the voluntary quit statute from a flexible standard to a rigid rule that has disqualified thousands of people, even those who left work for reasons consistent with the purpose of Washington's Employment Security Act.2Part I of this Comment briefly summarizes the history of unemployment compensation in Washington and outlines the basic structure and procedure of a claim for unemployment benefits. Part II summarizes the differences between rules and standards, discusses the legal contexts in which each approach is more appropriate, and explains the importance of this distinction. Part III reviews the history of good cause for leaving work and traces the evolution of the voluntary quit statute. Part IV argues that the current rule-based approach to making good cause determinations is inappropriate because a standard-based approach is more theoretically sound and is necessary to promote both the goals of the Employment Security Act and of unemployment compensation generally. Finally, Part V proposes standard-based language to amend the voluntary quit statute and restore administrative and judicial discretion to find good cause for leaving work.I. UNEMPLOYMENT COMPENSATION IN WASHINGTONA. Historical Context and BackgroundBefore the 1930s, no state provided unemployment compensation.3 However, as the Great Depression ground on, the national unemployment rate remained stubbornly high, reaching its peak of 25.2% in 1933 and remaining above 15% for virtually the entire decade.4 Many people seeking work were chronically or "hard-core"5 unemployed: they had been jobless for a year or more, and employers- for reasons as varied as skepticism about their skills to outright racism-refused to hire them.6 This "irreversible structural unemployment"7 effectively barred "10 percent of the labor force"8 from finding work.9 Other marginalized people, including older, nonwhite, and unskilled workers, were far more likely to be unemployed.10 Many people found work only through the New Deal's work relief programs11 and were unable to find private employment until World War II.12Despite this crisis, and despite a "rapidly growing interest in unemployment insurance throughout the country,"13 the states remained reluctant to enact unemployment compensation legislation.14 To induce the states to adopt such laws, Congress introduced a cooperative federal-state system to administer unemployment compensation15 as part of the Social Security Act of 1935.16 The strategy proved successful, and in just two years, every state had passed unemployment compensation laws.17Washington was by no means among the first states to act,18 but in 1937, the legislature passed the Unemployment Compensation Act.19 In the Act's statement of purpose, the legislature recognized that "economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this state,"20 and enacted the legislation "to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family."21 The Act was to protect unemployed people "against this greatest hazard of our economic life,"22 and it was to "be liberally construed for the purpose of reducing involuntary unemployment and the suffering caused thereby to the minimum. …

Reexamining Crawford: Poll Worker Error as a Burden on Voters

Abstract: We've made more election reform in the last six years in this country than we had in the 230 years before it.-Paul S. DeGregorio, former chairman of the EAC1INTRODUCTIONElections are large undertakings for those who administer them for three primary reasons. First, the sheer volume of individuals voting on a single day presents logistical challenges. Most Americans vote on the first Tuesday in November at a polling place close to the home where the voter is registered.2 In the 2008 presidential election, nearly 134 million people voted, and over 80 million of those voters cast their ballots on November 4 in a physical polling location.3Second, a complicated network of state and federal law governs election administration. For example, the Federal Constitution protects the right to vote, and states may not overly restrict that right without good reason.4 The U.S. Congress has enacted several laws, such as the Voting Rights Act of 19655 and the Help America Vote Act of 2002,6 which govern this right. State and local laws also play a significant part in election administration by detailing how each voter votes. For example, those laws dictate the form of the ballot7 and whether the voter votes on an electronic voting machine.8 Federal, state, and local laws also govern the people who administer in-person voting. For example, election administrators may not apply election law in a way that violates a voter's constitutional right to vote,9 and state and local election codes provide detailed guidance to day-of-election staff and volunteers.10 Also, in the last decade, many states have enacted voter photo identification laws as part of their election codes.11 These laws, often called "voter ID laws," require voters to show a specific form of photo identification prior to voting. 12Third, most of the people who administer elections are not professional staff. Rather, they are poll workers: individuals recruited by states and localities for the particular purpose of helping people vote on Election Day.13 Indeed, states do not have professional election staff sufficient to assist the many thousands of people that vote on Election Day, so they have no choice but to rely on poll workers for assistance.14 On Election Day, poll workers are generally responsible for setting up and breaking down the polling location, verifying the identity of each voter, helping voters by providing a ballot or directing them towards the voting machine, and generally keeping the polling location running smoothly.15Poll workers' Election Day responsibilities also include screening voters by checking poll lists and, when required, checking a voter's photo ID.16 This is one of a poll worker's most important tasks on Election Day because poll workers may turn away a voter, or request that the voter cast a provisional ballot, if the poll worker is unable to locate the individual's name or confirm his or her identification.17But even in important tasks such as this, poll workers are far from perfect in their administration of elections. Recent litigation highlights how complicated state voting laws increase errors in election administration. In Hunter v. Hamilton County Board of Elections18 and Northeast Ohio Coalition for Homeless (NEOCH) v. Husted 19 the Sixth Circuit Court of Appeals documented extensive poll worker error in Ohio elections. In both cases, separate Sixth Circuit panels held that poll worker error substantially burdened Ohio citizens' right to vote.20 In NEOCH v. Husted the Sixth Circuit attributed poll worker error to a complicated election administration scheme.21 To remedy the repeated occurrence of poll worker error in executing this particular law, the panel invalidated the election administration laws on constitutional grounds.22This Comment explores whether and how poll worker error burdens the right to vote. It asserts that poll worker error does burden the right to vote and argues that courts should consider this burden when evaluating the constitutionality of voter ID laws. …

Arriving at Clearly Established: The Taser Problem and Reforming Qualified Immunity Analysis in the Ninth Circuit

Abstract: INTRODUCTIONIn 2006, Jayzel Mattos was tased by a Maui police officer who was responding to a domestic violence call at the Mattos home. 1 Ms. Mattos happened to be standing between her husband and the officer when the officer announced that her husband was under arrest.2 She did not immediately move out of the way, and as the officer moved toward her, she held out her arm to prevent his body from pressing against her chest.3 Ms. Mattos was attempting to defuse the situation by asking everyone to calm down and go outside so that her sleeping children would not be disturbed when, without warning, the officer shot his Taser at her.4Two years later, a Snohomish County police officer tased Donald Gravelet-Blondin outside of his home.5 The officer was responding to a 911 call placed by the family of Mr. Blondin's neighbor, who was attempting to commit suicide.6 As officers wrestled with the suicidal man, Mr. Blondin emerged from his house to ask them what they were doing to his neighbor.7 The officers ordered him to stop and move back, and when Mr. Blondin did not immediately comply, one of the officers tased him.8Both Ms. Mattos and Mr. Blondin sued the officers who tased them for using excessive force.9 However, only Mr. Blondin was allowed to proceed with his case: the Ninth Circuit granted qualified immunity to the officer in Mattos v. Agarano10 but denied immunity to the officer in Gravelet-Blondin v. Shelton. 11 Qualified immunity protects government agents from liability for civil damages when their conduct does not violate clearly established constitutional rights.12 Whether a right was clearly established at the time of a particular injury depends on the precedent available at the time of the injury: the Supreme Court has held that existing precedent "must have placed the . . . constitutional question beyond debate."13Problematically, the Supreme Court has declined to provide lower courts with guidance as to which sources of law may inform a court's clearly established analysis.14 The Mattos court relied only on binding, Taser-related precedent to inform its analysis.15 Finding no pre-2006 Supreme Court or Ninth Circuit case addressing the use of a Taser in a factually similar situation, the court concluded that Ms. Mattos' rights were not clearly established at the time of her injury and that the officer was therefore entitled to qualified immunity from Ms. Mattos' suit.16 In contrast, the Gravelet-Blondin court found that Mr. Blondin's right to be free from excessive force under the Fourth Amendment was clearly established as of 2008, even though no Supreme Court or Ninth Circuit case dealing with Tasers and excessive force had been decided between Ms. Mattos' injury in 2006 and Mr. Blondin's injury two years later.17If no additional precedent were available by the time of Mr. Blondin's injury, what explains the difference in outcomes in these two cases? This Comment suggests that the divergent approaches to the clearly established analysis taken by different Ninth Circuit courts are to blame. When deciding whether to grant immunity to the officer in Mattos, the Ninth Circuit panel looked only to binding, Taser-related precedent.18 When faced with the same inquiry, the Gravelet-Blondin panel looked to non-Taser cases, cases from other circuits, and unpublished district court orders.19 By looking to a larger body of case law, the Gravelet-Blondin court was able to find the precedent it needed to hold that Mr. Blondin's right was clearly established at the time of the injury. Crucially, the Mattos court could have come to the same conclusion had it also looked to the broader scope used by the Gravelet-Blondin court.20 This example illustrates the need to harmonize the Ninth Circuit's standard regarding what constitutes clearly established law in the qualified immunity context.This Comment uses the Taser cases discussed above to illuminate the inconsistency in what constitutes clearly established law in the Ninth Circuit. …

Windsor , Surrogacy, and Race

Abstract: INTRODUCTIONScholars and activists interested in racial justice have long been skeptical of surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Rarely have critical thinkers about race approached surrogacy as merely a technological marvel-a remarkable feat of science that enables infertile couples to bring the children that they so very much desire into the world. Instead, many scholars and activists who have devoted their time and energies to fighting for racial justice have conceptualized surrogacy as a frightening prospect, something that should be left to pages of science fiction lest it bring nightmarish racial horrors to real life. The question that sociologist Barbara Katz Rothman asks about surrogacy reflects the sentiment-the thinly-veiled fear and loathing-that many critical thinkers about race have had about the practice: "Can we look forward to baby farms, with white embryos grown in young and poor Third-World mothers?"1 This possibility has led many persons who are interested in racial justice to argue that surrogacy ought to be prohibited.But, perhaps critical thinkers about race should reconsider their contempt for surrogacy in light of recent shifts in society. The most significant shift that might merit a reconsideration of surrogacy is the increasing recognition and legitimation of lesbian, gay, bisexual, and transgender (LGBT) persons and the families that they have created and desire to create. The Supreme Court's recent decision in United States v. Windsor2 is remarkable for its inclusive vision: The Court envisions same-sex couples, and the families that they head, as valuable threads in the fabric of American society. This country is a diverse one, and Windsor declares that same-sex couples and the families they create make wonderful, legitimate, respected contributions to the diversity of family forms present in the nation.Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor applauds. Thus, when critical thinkers about race condemn surrogacy, they condemn a means through which samesex couples can produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition.This Article conducts that reconsideration. Part I discusses Windsor and its concern for the children that same-sex couples parent, noting that part of the reason why the Court strikes down the federal government's refusal to recognize same-sex marriages is because of the harm that the refusal will inflict on the children of same-sex couples. Part II discusses the myriad reasons why critics who wrote about surrogacy in the late 1980s to mid-1990s opposed surrogacy arrangements, paying special attention to these first generation fears that surrogacy arrangements would magnify racial inequalities inasmuch as critics predicted that wealthy white people would look to poor women of color to carry and give birth to the white babies that the couples covet. Part II goes on to discuss the fact that these fears about white couples commissioning poor women of color to act as surrogates did not materialize-at least, they did not materialize insofar as poor, U.S.-born women of color have not been widely commissioned to act as surrogates. This Article conceptualizes this fact-white couples' failure to look to U.S.-born women of color for surrogacy services-as a racial implication of surrogacy that is a second generation concern. Moreover, it is a concern that may move those who are interested in racial justice to continue to oppose surrogacy arrangements. Part III then asks whether the disturbing racial implications of surrogacy are muted when same-sex couples commission the birth of babies. This part ultimately concludes that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. …

The Claim-Centered Approach to Arising-Under Jurisdiction: A Brief Rejoinder to Professor Mulligan

Abstract: My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies.1 My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank2 illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court.3 That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does mean, however, that Gully points to the fundamental question presented in the jurisdictional analysis.Professor Mulligan suggests that the Gully standard I endorse requires an abstract consideration of the issue's importance presented in the case.4 But this is not my view. As I explained in my article, Gully's "importance" inquiry pertains solely to the role that the federal issue plays in the plaintiff's claim: Does it lurk in the background or does it operate in the foreground as an essential element of that claim? In fact, one of my chief criticisms of the "rights separation" model advocated by Professor Mulligan is that, as presently configured, it invites a subjective determination of the importance of the federal issue to the federal system, a determination that I believe is inappropriate to the jurisdictional question.5 My objection to the current bifurcated doctrinal approach is that, differently from my proposed unified model, it relies on a subjective determination of whether the issue is somehow important as perceived by the individual judge.Professor Mulligan also argues that the Gully approach "leads to unclear-meaning unpredictable ex ante-§ 1331 doctrine."6 But he provides no proof of that claim other than the assertion that other commentators have assumed that to be the case.7 In fact, Gully pinpoints the essential jurisdictional question, i.e., the role of the federal issue within the context of the claim asserted, and numerous cases preceding Gully fully illuminate how that principle had been applied.8 Thus, there was no reason for the cases following Gully to stray from that course. Parts III through VI of my article examine and critique the consequences of straying from Gully's principled approach.9 My primary concern with Professor Mulligan's approach is that it conforms too easily to the current jurisprudence of arising-under jurisdiction without addressing its defects. …

The Constitutional Structure of Voting Rights Enforcement

Abstract: INTRODUCTIONThe Voting Rights Act of 1965 (VRA or the Act) is one of the most important pieces of civil rights legislation ever enacted, reflecting Congress's expansive authority to regulate state and federal elections post-Reconstruction.1 The Act is responsible for eradicating much of the discrimination in voting that had long relegated minorities to second- class citizenship. In 2009, the Supreme Court declined to resolve a constitutional challenge to section 5 of the Act,2 which requires certain covered states and jurisdictions to preclear all changes to their election laws with the federal government before the changes can go into effect.3 But just four years later, in Shelby County v. Holder,4 the Court invalidated the VRA's coverage formula in section 4(b), essentially rendering section 5 void by eliminating the mechanism through which coverage under the preclearance regime is determined.5 The Court held that the coverage formula intrudes on the Constitution's principle of "equal sovereignty" by subjecting certain states to the preclearance requirement based on "decades old data and eradicated practices."6 However, in invalidating the coverage formula, the Court failed to address precisely why Congress had the authority to reauthorize section 5 but not section 4(b),7 despite being vocal in 2009 that section 5 could impermissibly intrude on state sovereignty.8The Court may have avoided this question because it was playing politics in striking down the coverage formula but not the preclearance provision,9 placing the onus on a gridlocked Congress to develop a new trigger. Or perhaps the Court was trying to be more precise in identifying the provision of the VRA that was actually of constitutional concern.10 In reality, the doctrinal confusion in Shelby County persists because neither the Court nor the legal scholarship has a clear sense of the scope of congressional authority over elections.11 This inconsistency in the doctrine is problematic because challenges to the constitutionality of preclearance as a remedy to address voting rights violations are still on the horizon given that there are currently lawsuits to "bail in" jurisdictions for preclearance using the "pocket trigger" of section 3(c) of the VRA.12 Instead of providing clarity on these issues, however, Shelby County does little to resolve the tension between Congress's authority to protect voting rights and the states' sovereignty over elections.13This tension between the states and the federal government exists because the states have the primary responsibility of crafting the laws that govern state and federal elections. The U.S. Constitution allows states to choose the "Times, Places and Manner" of federal elections,14 which, in conjunction with the states' power under the Tenth Amendment,15 amounts to a plenary authority to structure and design elections at every level. Nonetheless, this allocation of authority is premised on the assumption that the states will act in good faith. The Framers initially worried that unfettered state control over elections could lead to the Union's destruction,16 and later, that the states would use their control over voter qualifications to disenfranchise large portions of their population for illegitimate reasons.17It is this latter concern that prompted the passage of the VRA after Congress developed an extensive evidentiary record showing that racial discrimination in voting was widespread in certain jurisdictions and impervious to case-by-case litigation.18 Preclearance under section 5 therefore ensures that any changes to election laws within these jurisdictions "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color."19 Critics argue that section 5 infringes on state sovereignty because minority voter registration and turnout in jurisdictions singled out for coverage through the trigger of section 4(b) parallel that of noncovered jurisdictions,20 and the very act of preclearance requires the affected areas to submit all changes for federal approval, including those regulations that govern state elections having few, if any, federal implications. …

Miller's Promise: Re-Evaluating Extreme Criminal Sentences for Children

Abstract: INTRODUCTIONRecent psychosocial studies and neurological research have proven that the structures and processes of the adolescent brain render young people more reckless and more susceptible to negative familial and societal pressures.1 In a series of recent cases, culminating in Miller v. Alabama,* 2 the United States Supreme Court relied on this science and recognized that, for young people, a confluence of immature judgment, vulnerability, social pressure, and decreased ability to appreciate long- term consequences can create a toxic environment with tragic results.3 The chances for unthinking violence are exponentially increased when homelessness, familial abuse or neglect, mental illness, and chemical dependency are added to the mix.4However, because of their developing characters, children are also uniquely able to transform themselves; they can change from foolhardy, risk-seeking teenagers into mature, rehabilitated adults.5 It is these "characteristics of youth"6 and the developing science that explains them that animate the Supreme Court's recent juvenile sentencing decisions.7 As discussed in those cases, physiological differences between teenagers and adults carry constitutional significance and require that children be sentenced differently-a principle firmly rooted in recent science and longstanding legal distinctions between children and adults.8In Part I, this Article analyzes Miller v. Alabama,9 Graham v. Florida,10 and Roper v. Simmons,n Part II explains the science underpinning those decisions. Part III shows how that science helps explain why the men currently serving life without parole in Washington for crimes committed as juveniles came to reside in prison. Part IV argues that the principles announced in Graham and Miller apply with equal force to long determinate sentences imposed upon children. Part V discusses how Miller and Graham track a growing societal disfavor for extreme punishments for youth. Part VI examines how the Washington legislature responded to this changing legal and social landscape during the 2014 legislative session when it fundamentally altered the sentencing structure applicable to children who commit serious crimes. Finally, Part VII discusses what else courts and the legislature should do to fully realize Mille fs promise.I. THE U.S. SUPREME COURT HAS RECOGNIZED THAT CHILDREN MUST BE SENTENCED DIFFERENTLY THAN ADULTSIn a trilogy of recent cases, the Supreme Court has recognized that juveniles differ from adults in their psychosocial and neurological makeups and therefore must be sentenced differently-even when those children have committed heinous crimes.12 In 2005 in Roper v. Simmons,13 the Court extended the categorical rule it set out in Thompson v. Oklahoma14 barring the death penalty for children under the age of sixteen, to any person who was under the age of eighteen at the time of the crime.15 While Roper announced a number of important principles, the true impact of those newly articulated constitutional rules awaited further development in Graham and Miller.16The Court heard arguments in Graham v. Florida, a case that presented the question whether children can be sentenced to life without parole for non-homicides, in the fall of 2009.17 In an opinion authored by Justice Kennedy, the Court ruled that imposition of such sentences in cases in which no one was killed violated the Eighth Amendment's prohibition on cruel and unusual punishment.18The Graham Court expanded upon the discussion begun in Roper that the unique attributes of children require that they be sentenced differently than adults. As in Roper, the Graham Court accepted recent scientific breakthroughs that explain why young people are inclined to engage in risky, anti-social behaviors; how peer pressure and poor familial circumstances more dramatically affect them; and how-given expected neurological development-many of them will outgrow the irresponsible, unthinking acts which lead them to prison. …

Gully and the Failure to Stake a 28 U.S.C. § 1331 "Claim"

Abstract: INTRODUCTIONIn a recent thought-provoking piece, Professor Simona Grossi argues from a legal-process-school point of view that 28 U.S.C. § 1331 doctrine should be re-constructed in light of Gully v. First National Bank in Meridian.1 She contends that this Gully-inspired approach clarifies federal question jurisdiction law when read either as a call for judges simply to select sufficiently important matters, in relation to plaintiff's case in chief, for inclusion in federal question jurisdiction or when read in terms of "claims,"2 a concept that she defines "by reference to the facts that establish a legal right to relief" as that concept is used in the Federal Rules of Civil Procedure and contemporary res judicata law.3 In this piece, I praise Grossi's renewed focus on legal-process-school norms. Indeed, based upon her call to return to our legal-process roots, I contend that my past work in the § 1331 canon is consistent with these jurisprudential norms. Nevertheless, I argue that neither Gully, interpreted as requiring judges to select sufficiently important matters for jurisdictional purposes, nor the concept of claim can serve as useful tools for interpreting the § 1331 canon.I begin with a brief primer on § 1331 doctrine. In 1875, Congress passed the first general grant of federal question jurisdiction, now codified in § 1331.4 Even though the language of § 1331 parallels that of Article III of the Constitution, modern Supreme Court opinions consistently hold that § 1331 federal question jurisdiction is not identical in scope to the constitutional federal question jurisdiction provision.5 Indeed, the modern Court interprets § 1331 as granting a much narrower scope of jurisdiction than the Constitution permits.6 In furtherance of this generally restrictive interpretive principle, all § 1331 jurisdictional cases are subject to the well-pleaded complaint rule.7 Following this rule, only federal issues raised in a plaintiff's complaint, not anticipated defenses, establish federal question jurisdiction.8Doctrinal orthodoxy further maintains that the Court has since established two independent and irreconcilable tests for determining when a complaint raises a well-pleaded federal question. According to the black-letter view, the overwhelming majority of federal question cases9 vest under § 1331 because federal law-be it by statute, treaty, Constitution or federal common law10-creates the plaintiff's cause of action.11 Justice Holmes so forcefully advocated for this understanding of § 1331 that this view is often referred to as the "Holmes test."12 Conversely, pursuant to the second black-letter test, federal question jurisdiction will lie in rare instances over state-law causes of action that necessarily require construction of an embedded federal right.13 As Smith v. Kansas City Title & Trust Co.14 is the Court's classic statement of this position, this line of cases is often referred to as the Smith test. In Smith, a stockholder-plaintiff brought a breach of fiduciary duty cause of action under state law. This case would not satisfy the Holmes test, as it was not brought under a federal cause of action. But the Court held that federal question jurisdiction arose under § 1331 because an element of the plaintiff's state-law claim required adjudication of the constitutionality of a federal act.15 The standard account of § 1331 jurisdiction, then, finds that federal question subject matter jurisdiction vests under one of two established tests: either (1) because the plaintiff brings a federal cause of action under the Holmes test; or (2) the plaintiff relies upon a federal right under the Smith test.With this briefest of overviews in hand, I turn next to a summary of Grossi's thoughtful work that challenges many of these traditional understandings of § 1331 jurisprudence. Grossi rejects both the cause-of- action-based and rights-based views presented above and instead argues that § 1331 jurisprudence should focus solely upon the Court's 1936 Gully opinion. …