Showing papers in "Washington Law Review in 2015"

Rethinking Virtual Currency Regulation in the Bitcoin Age

Abstract: This Article investigates an increasingly important yet under-developed body of law: regulation of virtual currency. At its peak in March of 2014, the daily volume of Bitcoin transactions in United States dollars exceeded $575,000,000. The growing mainstream acceptance of Bitcoin, however, is best illustrated by the growing number of leading merchants that have decided to accept Bitcoin payments. While Bitcoin's rise as an alternative payment method is well-chronicled, Bitcoin's impact extends further due to its use as an investment vehicle and its ability to spur the growth of an industry of Bitcoin-based businesses. Despite increasingly widespread use, Bitcoin (and other virtual currencies) have largely operated without the burden of regulation. Why? Like the potentially transformative innovations that preceded Bitcoin, virtual currency raises unique challenges for which existing legal models may be unprepared. As policymakers struggle to catch-up, the effort to develop an appropriate regulatory regime for virtual currency is at a critical juncture. The response in the United States has thus far involved regulatory bodies acting independently to clarify the treatment of virtual currency under a variety of different laws designed to regulate traditional payment systems, financial services, and investments. This Article argues, contrary to this approach, that a narrow focus on the technical application and extension of existing law creates a deficient regulatory regime. Instead, we suggest that policymakers should: (1) engage the various agency stakeholders to promote cross- communication; (2) think more globally about the wide spectrum of issues arising from virtual currency; and (3) embrace the unique and distinct characteristics of virtual currency. In support of this proposition, we show that refocusing on the collection of policy goals advanced by existing law offers policymakers an additional tool to aid in the development of a comprehensive, cohesive, and appropriately-scaled virtual currency regulatory model.

Anonymization and Risk

Abstract: INTRODUCTIONFor years, it was widely believed that as long as data sets were "anonymized," they posed no risk to anyone's privacy. If data sets were anonymized, then they did not reveal the identity of individuals connected to the data. Unfortunately, the notion of perfect anonymization has been exposed as a myth. Over the past twenty years, researchers have shown that individuals can be identified in many different data sets once thought to have been "anonymized."1 For example, in 2006, America Online (AOL) famously published a sample of its search queries. Although AOL replaced screen names with random numbers in the published search logs, this minimal step did not suffice to protect its users, and within days the New York Times discovered and revealed the identity of a 62-year-old AOL customer in the data set, Thelma Arnold.2 Similar high-profile anonymization failures were attributed to data sets released by Netflix3 and by the New York Taxi and Limousine Commission.4The possibility of correctly identifying people and attributes from anonymized data sets has sparked one of the most lively and important debates in privacy law. The credibility of anonymization, which anchors much of privacy law, is now open to attack. How should the law respond?The failure of anonymization has identified a weakness in the focus of the law surrounding data releases. Some critics argue that it is impossible to eliminate privacy harms from publicly released data using anonymization techniques. They point out that other data sets containing related data will inevitably be released, allowing someone to link data in both sets and reidentify individuals in the first data set.5 Defenders of anonymization counter that despite the theoretical and demonstrated ability to mount such attacks, the likelihood of reidentification for most data sets remains minimal and, as a practical matter, most data sets will remain anonymized using established techniques.6These divergent views might lead us to different regulatory approaches. Those that focus on the remote possibility of reidentification might prefer an approach that reserves punishment only in the rare instance of harm, such as a negligence or strict liability regime revolving around harm triggers. Critics of anonymization might suggest we abandon deidentification-based approaches altogether, in favor of different privacy protections focused on collection, use, and disclosure that draw from the Fair Information Practice Principles, often called the FIPPs.7There is a better focus for the data release law and policy: the process of minimizing risk. The main thesis of this Article is that the best way to move data release policy past the alleged failures of anonymization is to focus on the process of minimizing risk, not preventing harm. We argue that focusing on process and risk can bridge the concerns of formalists (for whom mathematical proof is the touchstone of any meaningful policy) and pragmatists (for whom workable solutions should prevail over theoretical concerns).8 This change in focus reframes the debate away from the endpoint of perfect anonymity and toward the process of risk management.In order to develop a clear, flexible, and workable legal framework for data releases, we propose drawing from the related, more established area of data security. Data security law is process-based, contextual, and tolerant of harm, so long as procedures to minimize risk are implemented ex ante. The law of data security focuses on requiring reasonable processes that decrease the likelihood of harm, even if threats are remote. Because there is no such thing as perfect data protection, data security policy is focused on regular risk assessment, the implementation of technical, physical, and procedural safeguards, and the appropriate response once a system or data set has been compromised.Data security policy also largely refrains from overly specific rules, deferring instead to a reasonable adherence to industry standards. …

Possible futures of fair use

Abstract: This Article celebrates the twenty-one-year majority status of Campbell v. Acuff-Rose Music, Inc. Campbell has unquestionably had transformative impacts on the doctrine of fair use in U.S. copyright case law, making several significant contributions that go well beyond the Court's endorsement of the "transformative" nature of a use as tipping in favor of fairness. Several notable cases have built upon the analytical foundation established in Campbell. This Article also considers possible futures of fair use. What will fair use look like twenty-one years from now? Will it stay much as it is right now, or will it change, and if so, how? Some critics think that fair use has gone too far and are urging a return to a more restrictive scope for the doctrine. This Article considers and responds to various critiques of the present state of fair use law, including whether fair use is consistent with international treaty obligations. This Article concludes that fair use will survive these critiques and will continue to evolve to provide a useful mechanism for balancing the interests of authors and other rights holders, on the one hand, and subsequent authors and other users of copyrighted works, on the other hand. It discusses some new horizons that commentators have imagined for fair use to address certain problems that beset copyright law today. Of the possible futures of fair use, that which would preserve the status quo and expand fair use into new horizons is the one most likely to occur and most to be desired.

Ridesharing's House of Cards: O'connor V. Uber Technologies, Inc. and the Viability of Uber's Labor Model in Washington

Abstract: INTRODUCTIONUber, the ridesharing behemoth, has upended the transportation network in cities across the globe. As an alternative to the inefficiencies of traditional taxis, the company uses a smartphone app to connect customers with its drivers, which has proved to be a hit with customers.1 This immense popularity has driven Uber to expand into over 270 cities and counting worldwide within a five-year period, and has led many to anoint Uber as the most successful Silicon Valley startup ever after just six years.2With a network of over 160,000 drivers in the United States alone, Uber has amassed an army of alleged independent contractors to drive its success.3 Uber's independent contractor policy tracks a growing trend among American companies of using independent contractors to avoid workplace regulations.4 By virtue of their independent contractor classification, Uber drivers and other independent contractors do not have employee benefits, pay expenses out of pocket, and are not entitled to guaranteed hourly wages or a salary.5In O'Connor v. Uber Technologies, Inc.,6 Californian Uber drivers are challenging their independent contractor status.7 The plaintiffs allege that Uber has improperly used the independent contractor designation to save costs; in other words, Uber has made its rapid growth possible by sacrificing full-employee benefits for its drivers to capitalize on lower labor costs.8 Thus far, the drivers have been remarkably successful in the suit. The trial court refused to grant Uber's motion for summary judgment after applying California's relatively employer-friendly independent contractor test.9 Indeed, based on the drivers' apparent momentum in the case, many have speculated as to whether this lawsuit could lead to the end of Uber drivers' independent contractor status in California.10 The "right of control" test applied by the Northern District of California trial judge is based on California's independent contractor law.11 The "right of control" test is the descendent of the traditional test still used to determine whether the law may hold an employer liable for the tortious conduct of an employee.12In contrast to California's test, in 2012 the Washington State Supreme Court adopted an "economic realities" test for determining whether a worker is an independent contractor for the purposes of the Washington Minimum Wage Act.13 The "economic realities" test, while similar to the "right of control" test, is a more progressive, worker-friendly test that can often lead to a different result.14The purpose of this Comment is to evaluate the legal reverberations that O'Connor could have in Washington. If the drivers ultimately succeed in their case using the more company-friendly California test in O'Connor, the Uber labor model could face a serious and credible challenge in any jurisdiction where drivers choose to bring such a suit. Part I examines the regulatory backdrop of ridesharing companies, and how the ascendency of Uber and other ridesharing companies has challenged traditional transportation regulatory schemes. Part II explores the factual and legal underpinnings of O'Connor. Part III discusses Washington's independent contractor law, particularly in light of the Washington State Supreme Court's Anfinson v. FedEx Ground Package System, Inc.15 decision, which signaled a new, worker-friendly approach to independent contractor law in Washington. Finally, Part IV analyzes Uber drivers' likelihood of success in a misclassification claim, and ultimately concludes that Uber's labor model may not be viable under Washington law.I. RIDESHARING COMPANY LABOR PRACTICES HAVE DISRUPTED TRANSPORTATION REGULATORY FRAMEWORKSUber has disrupted nearly a century of taxi regulations in America.16 Most notable to consumers, Uber has brought new technology, new price structures, and consistently reliable service into the market.17 Less visible to consumers are the labor practices these companies use in hiring and managing drivers. …

Home-Country Effects of Corporate Inversions

Abstract: INTRODUCTIONMuch of the international tax reform discourse in the United States is grounded in two truths:1 First, multinational corporations' (MNCs) locational decisions are sensitive to home-country tax burdens.2 High taxes in an MNC's home jurisdiction may induce the MNC to relocate its tax-residence to a low-tax jurisdiction.3 Second, having an MNC headquartered within a jurisdiction has positive effects on the local economy in the form of increased capital expenditures, research and development (R&D) activities, and high-quality jobs.4The combination of these two truths has led to a policy argument that U.S. tax-law should not target corporate headquarters' locations. Taxing an MNC based on the location of its headquarters raises a concern that "management . . . would flee to other countries,"5 resulting in the loss of both the corporate tax base as well as the positive externalities associated with having the headquarters located within the United States.6 This Article suggests, however, that this policy argument is overstated for two reasons.First, there is no reason to assume that the place of tax-residence is also the place of the economic attributes that policymakers care about. For example, under the Internal Revenue Code (IRC) corporate taxresidence is determined based on the place of incorporation (POI). There is little reason to expect that the place of incorporation and the place of a corporation's meaningful attributes converge around a single location. Unfortunately, much of the empirical research in this area implicitly assumes such convergence. It is well established, however, that the meaningful functions of the modern MNCs are decentralized.7 Different substantive attributes of a corporation may be located in different jurisdictions, which are not necessarily the jurisdiction of the MNC's tax residence. Tax residence can be changed with no need to dislocate any meaningful structures in the jurisdiction from which an MNC inverts. Conversely, economic attributes of an MNC can be shifted across borders with no corresponding change to the tax-residence. A change of an MNC's tax-residence ("inversion") and a dislocation of economic attributes in the jurisdiction from which the MNC inverts are two distinct phenomena.Second, even if corporate tax-residence is based on the location of meaningful economic attributes (for example, by determining taxresidence based on the place of management or assets), there is no reason to assume that MNCs will dislocate such attributes en masse in order to change their tax-residence. Literature in organizational studies suggests that meaningful corporate functions are likely to be located in jurisdictions that offer substantive non-tax advantages, such as developed financial markets, skilled labor force, infrastructure and other agglomeration benefits.8 The dislocation of real attributes is costly and may result in the loss of agglomeration benefits. This Article suggests that when the dislocation of real economic attributes is necessary in order to "lose" tax-residence, tax savings may not justify the cost of such dislocation. Stated differently, current literature fails to balance the tax benefit expected from an inversion, with the non-tax cost associated with arbitraging one tax regime for another.9A possible reason for the lack of coherence in policy implications of inversions literature is that it lacks testable theoretical constructs. Public finance economists have long studied the effects of taxation on locational decisions.10 However, there is no theoretical framework that explains what substantive dislocations may specifically be associated with inversion transactions. This Article aims to fill such gaps through case study research. The aim is to develop theoretical propositions based on observed dislocations in inversion transactions. Several case studies of large-scale inversions are examined in order to articulate-in policy- relevant terms-the possible meaningful economic effects of an inversion in the jurisdiction from which a corporation inverts. …

Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches

Abstract: Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture and pose a longer-term risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a world-wide reduction in carbon dioxide emissions. In the interim, however, the Center for Biological Diversity has worked long and hard to apply the federal Clean Water Act to ocean acidification, while states and coastal regions are increasingly pursuing more broadly focused responses to its local and regional impacts. This Article provides a first assessment of these relatively nascent legal efforts to address ocean acidification, concluding that ocean acidification should prompt renewed Clean Water Act attention to stormwater runoff and nutrient pollution but also that more comprehensive adaptation law and policy will become and increasingly necessary part of coastal state and regional responses to ocean acidification.

Campbell as Fair Use Blueprint

Abstract: Friends, copyright geeks, I come not to bury Campbell,1 but to praise it. I might reasonably be considered a biased critic as Campbell took a number of suggestions from an article I wrote.2 Biased or not, I submit Campbell is a beautifully reasoned opinion, which has demonstrated in its twenty-one years that it provides a healthy framework for fair use analysis. That framework promotes the overall objectives of copyright; it protects the interests of rights holders; and it guards against putting "manacles upon science."3This is not to say that every case decided under Campbell has been indisputably correct. But disagreement with some decisions of lower courts is not a condemnation of Campbell's blueprint. Furthermore, fair use decisions will often involve difficult appraisals, susceptible to reasonable disagreement. Nor is it surprising to find inconsistency in lower court opinions. Copyright cases come infrequently, especially those with fair use questions. Many judges are often confronting the complexities of fair use for the first time, and may be quick to reach out for what look like easy handholds that are often based on errant dicta.I. PRE-CAMPBELLTo appreciate what Campbell did for us, we should look at the law of fair use prior to Campbell. It was a mess, and it gave virtually no guidance. For nearly 300 years, courts had acknowledged a need for doctrine that would allow copying in some circumstances. There developed a widely accepted view that copying in certain types of undertakings-criticism, parody, book reviews, news reporting, political commentary, historical works, scholarly analyses-would likely be a fair use. But, with the exception of Joseph Story's spare, but well targeted, caution in 18414 that a fair use must not "diminish the profits, or supersede the objects, of the original work,"5 courts had failed to explain how to distinguish between copying that infringes and copying that is fair use. Decisions were made from the gut, without any real explanation.The confusion in the law was due, in no small part, to careless utterances by the High Court. The Court needlessly floated a number of unhelpful, distracting, counterproductive propositions, which had no bearing on the outcome of the particular case and have caused no end of confusion and harm.First, in Sony Corp. of America v. Universal City Studios, Inc.,6 in gratuitous dictum, the Supreme Court declared that "every commercial use of copyrighted material is presumptively" an unfair use.7 This statement played no role in the decision. What is more, it was incomprehensible. Types of enterprise in which fair use are conventionally found-news reporting and analysis, historical and biographical studies, reviews of books, theater, and film, as well as parody-are conventionally done commercially for profit. The notion that commercial uses were presumptively not fair uses plagued fair use analysis until at last it was blunted by Campbell.In Harper & Row, Publishers, Inc. v. Nation Enterprises,8 the Supreme Court rejected The Nation's claim that its taking of President Ford's explanation of the Nixon pardon was fair use because it was so newsworthy. Public interest in the author's writing would not justify disregard of the author's copyright. This was altogether valid. Otherwise, an author's success in writing an important book would be the author's undoing. And, as for harm, the Court explained that by scooping the "heart of [Ford's] book,"9 The Nation had usurped the "important marketable subsidiary right" of first publication.10 Had the Court stopped there, its reasoning would have fit into a useful framework for analysis of future fair use disputes. Unfortunately, the opinion aired numerous distracting aphorisms-many of them misguided.(a) For starters, the Court asserted that quotation from an unpublished work tends "to negate the defense of fair use."11 To the extent that proposition could be correct for Harper & Row's facts, where the unauthorized publication scooped the imminent initial publication, the proposition would be at least equally incorrect in other circumstances, such as where the purpose of the copying is to reveal important facts that the rights holder hopes to conceal. …

Regulating Real-World Surveillance

Abstract: INTRODUCTIONPrivacy is situated; it exists in context. That context can have physical, social, and temporal dimensions. While a growing number of scholars have discussed the importance of context to surveillance online, it often gets neglected in the physical world.1 Courts oversimplify physical context, characterizing a situation as private if it takes place in the home, and public if it takes place outside. But in practice, surveillance subjects in the physical world rely on and use detailed temporal, social, and physical features of their environment when calculating their ideal degree of disclosure to others at a given moment.When the introduction of new surveillance technologies undermines features of the physical environment that people once relied on in calculating their degree of privacy or openness, the state may intervene. For example, celebrities once relied on physical distance and physical walls to keep out snooping paparazzi. When paparazzi started using visual and auditory enhancing technologies to overcome both distance and walls, California enacted a paparazzi law to protect individuals from a "constructive invasion of privacy" through the use of a "visual or auditory enhancing device."2 In 2014, California amended this law to expand its coverage to constructive privacy intrusions by "any device" in order to reach aerial surveillance by drones.3Surveillance technologies from video cameras to drones have inspired the enactment of a number of laws governing surveillance by private parties in real physical space. These laws have received surprisingly little in-depth analysis as a category.4 This Article brings these laws together under one umbrella and proposes a way to understand the government's interest in enacting them.The government has an interest in protecting privacy. But merely identifying the government interest in surveillance laws as an interest in privacy protection is inadequate because privacy can mean many different things. The understanding of privacy behind legislation can greatly affect the scope of that legislation, and the ability of the government to justify it to constituents and in court.This Article asks what theory of privacy drives the government to protect individuals from having information about them gathered by private, nongovernmental actors. Without a theoretical understanding of why these laws exist, arguments over whether they should exist at all will continue to be had on a case-by-case basis. This has led to piecemeal legal protection.5 Legislators will find it easier to decide when such laws are necessary if they can better identify and discuss the government interests at stake. Understanding the government interest is crucial for making decisions about both when to enact these laws, and when these laws can withstand balancing against other values, such as freedom of expression.In the 1970s, social psychologist Irwin Altman conceived of privacy as boundary management:6 the process of dynamically managing the degree of disclosure of one's self to others. Privacy is not a single state of being; it is a process of calibration set in physical, social, and temporal space. Altman's great insight is that when a physical space changes, a person's ideal degree of disclosure does not necessarily change with it. So if a wall functionally disappears because of a new surveillance technology, a person who once relied on it for protection from disclosure may now start changing her behavior, to maintain the same desired degree of disclosure that existed when the wall protected her.Building on this conception of privacy, this Article proposes that the government has a two-pronged interest in enacting surveillance laws to govern private actors. First, it has an interest in providing notice to individuals, both to let them recalibrate their ideal level of disclosure and to encourage governance of surveillance through social norms. Second, the government has an interest in preserving some situations as surveillance-free, to prevent undesirable behavioral shifts. …

Fair Use: An Affirmative Defense?

Abstract: INTRODUCTIONNo one doubts that the fair use doctrine is a critically important part of U.S. copyright law.1 As the Supreme Court described in Campbell v. Acuff-Rose Music, Inc.,2 fair use provides a guarantee of "breathing space within the confines of copyright."3 If the doctrine holds this critical place in the scheme of copyright, is the Supreme Court correct to label fair use an "affirmative defense"?In Campbell the Supreme Court not only repeated the declaration it had first made less than ten years earlier, that fair use is an affirmative defense,4 it went further to comment on the burden that it thought followed from that label. Specifically, in addressing the fourth factor courts should consider when evaluating whether a use is fair-the effect of the putative fair use on "the potential market for or value of the copyrighted work" 5-the Court stated: "Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets."6 In this sentence the Supreme Court not only cemented the label "affirmative defense," it also made clear the defendant should shoulder the "burden of demonstrating fair use."7Much has been written concerning the nature of fair use: Is it a right, or merely a privilege?8 Some might claim that my focus here is on a much more mundane and procedural question:9 Did Congress intend for courts to treat fair use as an affirmative defense, or was the fair use inquiry meant to be part of the prima facie inquiry into the question of infringement? Indeed, for many fair use cases, the issue of the burden of proof has not been a central component of the basis for the decision. The power of the procedural argument, however, may take on increased importance as courts begin more frequently to use the allocation of the burden as a reason to deny defendants' assertions of fair use.10 More fundamentally, "[s]ubstantive rights . . . are worth no more than the procedural mechanisms available for their realization and protection."11Part I of this Article provides background on the current approach to the prima facie case of copyright infringement and the difference between a defense and an affirmative defense. Part II explores the Supreme Court's statements concerning the nature of fair use as an affirmative defense, taking the Court's cases in reverse chronological order. This section shows that the Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. After identifying the statutory language that cuts against treating fair use as an affirmative defense, Part III then turns to the legislative history of the 1976 Act. It describes the specific legislative history relied on by the Supreme Court as well as other statements in the legislative history concerning the nature of the fair use doctrine, including language contained in the final House and Senate Reports. The legislative history explicitly confirms what the statute clearly states: Congress did not intend fair use to be an affirmative defense-a defense, yes, but not an affirmative defense. Part IV explores some of the consequences of treating fair use as an affirmative defense and some of the legal maneuvers employed by defendants and the courts to soften the more serious problems. Finally, Part V argues that the Supreme Court should revisit its use of the affirmative defense label and should conclude that fair use is not an affirmative defense but is a mere defense that shapes the scope of a copyright owner's rights.I. BACKGROUNDA. The Prima Facie Case of Infringement: An Easy BurdenTreating fair use as an affirmative defense shifts the burden to the defendant with little needed from the plaintiff to demonstrate a prima facie case of infringement, thus opening the door to the wide range of remedies permissible under the Copyright Act. …

Working with Cancer: How the Law Can Help Survivors Maintain Employment

Abstract: INTRODUCTIONFaced with a cancer diagnosis, chemistry teacher Walter White, protagonist of the popular television show Breaking Bad, turned to the drug trade to provide financial security for his family.1 Dramatic potential notwithstanding, most cancer patients do not "break bad." Instead they are more like Sarah.2 After working ten months for her current employer, Sarah was diagnosed with lung cancer, which requires regular chemotherapy treatments and surgery. Her employer, a hospital, has several hundred employees, many of whom are engaged in shift work. To accommodate her treatment, Sarah has been trading shifts with other employees to avoid working on treatment days, but her supervisor has objected and threatened to fire her for being unable to work her regularly scheduled shift. In addition, the supervisor has begun to criticize her job performance, despite her stellar review after six months of employment. The stress from fear of job loss has compounded the stress from the cancer diagnosis. Like most employees, Sarah's health insurance is through her employer. She is facing surgery and has only accumulated two weeks of paid sick leave, a generous amount considering her short tenure, which she has been saving for the surgery and recovery. She is ineligible for more, either by law or employment policy, because of her length of employment. Although the doctors have offered her hope that treatment will provide a good chance of survival, she is uncertain whether she will be able to return to full-time work within two weeks of the surgery. Sarah needs to support herself and her family now and in the future, and needs continued health insurance to pay for treatment. Sarah's situation is typical of many cancer patients.Cancer is no longer a death sentence. As a result of significant advances in cancer treatment, individuals with cancer are living longer. In many cases, cancer is now a chronic disease rather than a fatal one. These advances in medicine, however positive, come with costs for the survivors and society. The treatments that preserve lives are often expensive. In addition to paying for treatment, individuals with cancer must continue to support themselves and their families during and after treatment. Indeed, as former Justice Sandra Day O'Connor discovered during her own cancer treatment, maintaining employment can assist in battling cancer: "As tired and stressed out as I was, I had a job that was hard and important and was always there for me to do."3Despite the need to maintain employment and the benefits of doing so, many individuals with cancer or a history of cancer are either unemployed or underemployed. Because health insurance is tied to employment for many in the United States, the lack of employment may lead to inability to pay for treatment and necessary follow-up. Not surprisingly, unemployment leads to credit problems and bankruptcy. Accordingly, the changing face of cancer imposes both individual and societal costs.Not all cancers fit this picture, however. Cancer ranges from the basal cell carcinoma that is treated in one or two doctor visits to advanced liver cancer that is rapidly fatal. Moreover, even within cancer types, researchers are discovering that cancer is not one, but many different diseases. The treatment and effects vary widely. What unites most cancers, however, is the long-term and life-changing consequences of the disease. Survivors live with continual follow-up, lasting effects of treatment, and the possibility and reality of recurrence and further treatment.As the medical profession has advanced in cancer treatment, the law has fallen behind in addressing the needs of cancer survivors. When cancer patients almost inevitably died, and rather quickly, the major intersection of law and cancer was in providing for the patient's survivors after death. As survival becomes the norm, issues of health insurance coverage, employment, and disability benefits for the cancer survivor come to the fore. …

The Imaginary Trademark Parody Crisis (and the Real One)

Abstract: INTRODUCTIONWe live in a golden age of modern pop parody. Two decades after the Supreme Court found a crude rap spoof worthy of consideration as fair use in Campbell v. Acuff-Rose Music, Inc.,1 this type of humor is now central to the American conversation.2 Earlier this year, both the fortieth anniversary of Saturday Night Live and the announcement that Jon Stewart was leaving the Daily Show became cultural milestones worthy of front-page news stories and endless retrospective analysis.3 Every news event is met with a parodic Twitter account, often within minutes.4 A quick Google Image search illustrates how the combination of Photoshop and the web gives any smart aleck the ability to alter brand logos and publish the resulting takeoff to make a statement, or just a silly joke. In our consumer culture, ubiquitous and universally recognizable brands are among the juiciest targets for parody.5Meanwhile, this spread of parody coincides with the huge expansion of trademark law to confer much broader rights.6 Today, in contrast to earlier doctrine, "almost anything at all that is capable of carrying meaning" can be a trademark7-including packaging, product configurations, colors, sounds, and the "look and feel" of a product.8 Simultaneously, liability can now arise not only when consumers are confused about the source of products but also when they misunderstand a range of vaguer relationships including "affiliation" and "approval,"9 or even when the use "tarnishes" the trademark under dilution law.10One might therefore expect a flood of judicial opinions drowning parody in the wake of these broad rights, but it hasn't happened. Simply put, true trademark parodies now almost always win in court. When parody-based defenses do fail, those decisions might be justified. Moreover, parody's victory rate has increased over time. In the first years after the Campbell decision declared the importance of parody in 1994, courts became somewhat more solicitous toward parodies but occasionally still found them liable for trademark infringement. By the time we started putting a "2" in front of the year, it became increasingly difficult to identify such losses. In the last decade, defeats for trademark parodies have become blue-moon rarities.11Despite these pro-parody outcomes in formal law, however, the situation on the ground is another matter. While there are few litigated cases, markholders routinely send cease-and-desist letters demanding the eradication of parodies aimed at their trademarks. Many parodists comply. Even though the letters often cite dated cases that no longer reflect current judicial views, they remain effective for reasons distinct from their legal merits. Even though parody wins in court, the route to get there is long and convoluted. Parodists are not necessarily aware of the favorable trends in the law. They do not have much leverage in prelitigation negotiations with markholders, and often they have less investment in their position as well. In these circumstances they choose to avoid significant costs of time and money they would incur even if they won a lawsuit.12Commentators have been slow to adjust. They continue to mischaracterize legal doctrine as bad for parody and focus their energies on perfecting judicial accuracy. This is the wrong approach. It tries to fix a problem that is both highly complex and comparatively tiny, while distorting public understanding about the actual state of the law. The resulting narrative of supposedly flawed parody doctrine supports unmeritorious demand letters. It thus exacerbates the more serious problem of pre-litigation threats.This Article seeks to reorient the discussion. Part I draws on lessons from the copyright decision in Campbell that are relevant to trademark law. Part II demonstrates the marked increase in judicial protection for parodies in trademark law since Campbell. Part III shows how sustaining the myth of bad outcomes for trademark parody in court encourages markholders to overstate their rights, undermines parodists in their responses, and distracts reformers from the real problem. …

Buyer Power and Healthcare Prices

Abstract: INTRODUCTIONHealthcare prices in the United States are exceptionally high. Many studies have found that the United States spends nearly twice as much per capita on healthcare as other developed countries, while achieving inferior results on such important public health measures as life expectancy and infant mortality.1 When analysts try to explain why we spend more than other advanced nations, they frequently point to the higher prices we pay: many healthcare goods and services are more expensive in America than they are abroad.2 Medicare pays four times as much for CT scans as Germany does.3 The cost of a hip replacement in the United States is over five times the cost in Brussels and the U.S. price includes fewer services.4 Professor Emanuel notes:[a]merican physicians and nurses [earn] much more than their counterparts in Europe, Australia, and other developed countries. Prices for brand-name drugs-although not generics-are much higher in the United States than they are in other countries. Prices for routine tests, such as MRIs and CT scans, are higher in the United States than they are in Japan and other countries. For instance, an MRI in Japan is $160, while in the United States it averages $1,700.5Healthcare prices are not only high but have been rising rapidly for many years, faster than the overall rate of inflation. Between 2000 and 2010, the proportion of gross domestic product (GDP) accounted for by healthcare increased from 13.8% to 17.9%.6 "Much of this increase," according to Professors Blair and Durrance, "can be attributed to rising prices."7 From 2000 to 2013, the consumer price index increased by 35%, while the medical component increased by 63%.8 Although healthcare inflation has slowed recently, it is likely to pick up again as the economy improves.9 One notable cause is the escalating prices of new brand name prescription drugs. Kalydeco, a new specialty drug, now costs more than $300,000 a year,10 and UnitedHealth Group has estimated that specialty drug spending could quadruple in less than a decade, from $87 billion in 2012 to $400 billion in 2020.11 Similarly, the prices of anticancer drugs have soared, with new treatments now costing more than ten times what they cost two decades ago, but with the benefits-additional survival time-often stated in months rather than years.12 Finally, as Turing's notorious 5400% increase in the price of Daraprim quickly demonstrated, there is "growing concern about huge price increases on older drugs, some of them generic, that have long been mainstays of treatment."13 Together, these developments have generated "public outrage against the growing trend of higher and higher drug prices imposed by big drug companies."14America's high and rising healthcare prices spring from many causes. Among them are the continuing introduction of more effective-but more expensive-treatments; widespread insurance coverage, which reduces the incentive to look for low-cost providers; the absence of transparent pricing information, which inhibits the search for those providers; and patent protection for pharmaceuticals, which blocks for years the emergence of low-cost competitors.15 These causes, moreover, contribute to another: the market power of providers.16 As the Medicare Payment Advisory Commission noted, "[o]ne key driver of higher prices in the United States is provider market power. Hospitals merge and physician groups consolidate to gain market power over insurers to negotiate higher payment rates."17 Such power is a pervasive feature of healthcare markets, enabling many hospitals, physician groups, and manufacturers of patented drugs to charge more or provide less than a competitive market would permit.18At the same time, the market power of providers is limited by power on the other side of the market-by buyer power.19 Differences in buyer power help explain why Americans pay higher prices for healthcare than consumers in other developed countries. …

Forever Evergreen: Amending the Washington State Constitution for a Healthy Environment

Abstract: INTRODUCTIONWashington State, along with the rest of the world, is facing and will continue to face significant environmental challenges. Air pollution, soil pollution, and climate change all pose serious threats to the state's natural environment, economy, and citizens' health. To tackle these threats, this Comment argues for an amendment to the Washington State Constitution that enshrines a broad public trust duty and provides a positive right1 to a healthy environment. To protect Washingtonians' health and welfare, and to ensure a healthy environment for generations to come, the Washington State Constitution should be amended to include the following provision:(a) The state of Washington is the trustee of Washington's natural environment, including the air, water, soil, and ocean shores. It is one of the principal duties of the state to protect, preserve, and restore the state's natural environment for the current generation and for generations to come. Those residing within Washington's borders, now and in the future, have a positive right to live in and enjoy a healthy environment.(b) This amendment shall take full effect immediately upon the approval and ratification by the qualified voters. The legislature may take action to carry out the purposes of this section, but no such action shall be required for this section to become effective.2This language provides a positive right to a healthy environment. Like the right to education,3 this proposed language would allow citizens to sue the government4 to declare and enforce their rights,5 and would encourage both the legislature and the courts to prioritize environmental protection.6 The provision is meant to encompass all aspects of the natural environment-including those, like air and water, that are affected by climate change-and enshrine a broad public trust duty in the State Constitution.7 Although adding such an amendment may seem radical at first glance, this Comment will demonstrate that it is not radical8 and that it is necessary.9This Comment proceeds in two parts. Part I shows that adding this amendment to the Washington State Constitution would not be a radical departure from Washington's history, current policy, existing constitutional structure, and national and international trends. First, this Part provides an overview of the public trust doctrine-both generally10 and in Washington specifically.11 As this Comment illustrates, Washington's public trust doctrine is well established, in line with the doctrine's ancient origins and its modern interpretation in other states,12 and that the traditional, narrow public trust doctrine is already enshrined in article XVII, section 1 of the Washington State Constitution.13 This Comment then explains how there is room for expansion of Washington's common law public trust doctrine.14 As Part I demonstrates, codifying a broad public trust duty in a constitutional amendment would not be a radical leap from existing Washington common law.Part I continues with a discussion of current Washington laws that exemplify an existing commitment to the environment. 15 It then discusses other constitutionally protected positive rights, demonstrating that including one for the environment would not be unprecedented, and would allow the State Constitution to reflect Washingtonians' values.16 This Part concludes with an overview of the national and international scene.17 In addition to providing a broad overview of the frequency of constitutional environmental protection provisions, this Part provides six concrete examples-three national 18 and three international19-of how this right has been utilized elsewhere to protect the environment and tackle major environmental challenges.While Part I lays the groundwork for why the proposed amendment would not be a radical step, Part II explains why such an amendment is necessary to protect the health and welfare of Washingtonians. This Part first explores some of Washington's existing environmental problems, including air, water, and land/soil pollution. …

How Much Is Too Much?: Campbell and the Third Fair Use Factor

Abstract: INTRODUCTIONFair use limits the rights of copyright owners. Someone who uses a copyrighted work without permission in a way that would ordinarily come within one of the copyright owner's exclusive rights nevertheless does not infringe if the use qualifies as fair use. Fair use originated as a judge-made doctrine, and was only codified in the statute with the passage of the 1976 Copyright Act, which took effect on January 1, 1978. Section 107 of the Act sets out a nonexhaustive list of four factors that courts are to consider in determining whether any particular use qualifies as a fair use.1The Supreme Court's most recent and sustained attention to copyright's fair use doctrine came in 1994 in Campbell v. Acuff-Rose Music, Inc.,2 a case in which the owner of the copyright in the musical work "Pretty Woman" (made famous in Roy Orbison's recording) sued 2 Live Crew for creating a rap version of the song. Academics and courts have paid substantial attention to the way the Supreme Court in Campbell developed the analysis of the first of the four statutory fair use factors and gave a prominent role to the question of whether a defendant's allegedly infringing use was "transformative."3This Article explores an aspect of the Campbell decision that has attracted less attention-the Court's articulation of how courts should analyze the third fair use factor. That factor calls for considering "the amount and substantiality of the portion used [by the defendant] in relation to the [plaintiff's] copyrighted work as a whole."4 In other words, how much of the plaintiff's copyrighted work did the defendant use? And how substantial was the portion that the defendant used when compared to the plaintiff's entire copyrighted work.Part I traces the relatively short history of fair use in the Supreme Court. Before Campbell, the Supreme Court had provided little guidance on how to apply factor three in the fair use analysis. Campbell filled that gap by announcing that the third factor calls for considering whether the defendant used a reasonable amount of the plaintiff's copyrighted work. The remainder of the Article looks at how this reasonableness analysis has fared in the circuit courts in the two decades since Campbell was decided. It studies the sixty-one post-Campbell appellate decisions that have engaged in fair use analysis. Part II details the methodology of the study and describes a number of general characteristics of appellate fair use decisions since Campbell. Part III looks specifically at the treatment of the third factor in the opinions in the study-both at how appellate courts weight that factor, and to what extent those courts expressly articulate Campbell's reasonableness approach in their analysis. Finally, Part IV focuses on the relatively large portion of the appellate fair use decisions that involve a defendant's use of the plaintiff's entire work. In particular, this Part argues that courts have used Campbell's reasonableness approach in finding fair use when a defendant's use of entire copyrighted works involves a relatively new technological use.I. FACTOR THREE IN THE SUPREME COURTA. Fair Use Cases Before CampbellBefore the Campbell decision, only three Supreme Court opinions addressed the application of Section 107's factors to a fair use claim. In Sony Corp. of America v. Universal City Studios, Inc., 5 owners of copyrights in movies and television shows charged the makers and distributors of videocassette recorders (VCRs) with liability for copyright infringement allegedly committed when the defendants' customers used their VCRs to record television programming broadcast over the air. In deciding the case, the Court considered whether VCR users were engaged in noninfringing fair use.6 In Harper & Row, Publishers, Inc. v. Nation Enterprises,7 the Court considered fair use in the context of a claim that the magazine The Nation infringed when, shortly before the publication of former President Gerald R. …

Revisiting Claim and Issue Preclusion in Washington

Abstract: INTRODUCTIONThirty years ago, the Washington Law Review published Claim and Issue Preclusion in Civil Litigation in Washington, 1 an article by prolific scholar2 and esteemed teacher3 Philip A. Trautman. Professor Trautman chose to address this "age-old topic" in order to report on development of the doctrine in Washington State courts and then to "suggest what may be forthcoming."4 At its core, the article called for doctrinal clarity and a pragmatic approach to preclusion law-a position that would require courts to provide more guidance, and, ideally, to simplify some of the complex, multi-level tests they used for claim and issue preclusion. Washington practitioners and judges immediately turned to Professor Trautman's commentary on the subject, and, even more notable, continue to rely on it well into the twenty-first century.5 Although the article appears to have been a valuable reference-a sort of preclusion primer-for practitioners and courts in Washington, the courts have not fully responded to the specific changes that Professor Trautman advocated. Some of those problems remain unresolved. Moreover, other problems in Washington's claim and issue preclusion doctrine have developed and become more significant since Professor Trautman's canonical work was published.This Article identifies three important problems that have remained unresolved or emerged since Professor Trautman's article, and recommends ways Washington law should change to improve efficiency and clarity-both central values behind preclusion law-and to conform to the due process standards the United States Supreme Court has imposed on the federal law of preclusion. Solving these problems in Washington's preclusion doctrine will require action by the Washington State Supreme Court. Instead of dealing with preclusion law mainly as a sidebar in cases that involve important substantive conflicts, the court should grant review in cases that present opportunities to focus on procedure and clarify the law.First, the Washington State Supreme Court should restructure the four-element identity test for claim preclusion, which currently requires courts to address eight analytic steps. The Court should pare its identity test down to the two elements that actually matter: precluding relitigation of identical claims between identical parties, or those in privity. The Court should also evaluate identity of claims by using the simpler "transactional nucleus of facts" test, instead of the four factors Washington courts use now. A streamlined approach to claim preclusion would simplify the analysis required of practitioners and courts alike, making litigation more efficient and outcomes more predictable.Second, the Court should abandon the discredited doctrine of virtual representation, which permits issue preclusion to bind some litigants who were not parties to the original action. Rejecting the doctrine would protect litigants' legitimate expectations of a day in court that they control, and would satisfy due process concerns. The United States Supreme Court recognizes several categories of nonparty preclusion. If the Washington State Supreme Court elects to go beyond those recognized exceptions, it should do so only in cases that involve serial litigation over a public rather than private right, and patently adequate representation in the first proceeding. Before taking that step, however, the Court should examine how existing joinder mechanisms could help parties avoid repetitive litigation over matters of public concern. This would allow Washington courts to avoid controversial decisions on the scope of nonparty preclusion.Third, the Court should insist that every Washington court engage in the proper analysis and give appropriate full faith and credit to judgments from federal courts and other state courts.Part I of this Article will describe Professor Trautman's article, place it in context, and highlight his recommendations to Washington courts. …

"The Shameful Wall of Exclusion": How Solitary Confinement for Inmates with Mental Illness Violates the Americans with Disabilities Act

Abstract: Although solitary confinement is conventionally challenged under the "cruel and unusual" standard of the Eighth Amendment, this approach presents several intractable legal hurdles to successful claims. The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and its precursor, the Rehabilitation Act, provide innovative and non- constitutional causes of action for inmates with mental illness 1

A Shifting Landscape for Shifting Fees: Attorney-Fee Awards in Patent Suits after Octane and Highmark

Abstract: INTRODUCTION"The court in exceptional cases may award reasonable attorney fees to the prevailing party." 1In civil litigation in the United States, "[e]ach litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise."2 This "bedrock principle [is] known as the 'American Rule.'"3 Title 35 of the United States Code, the title that governs patent law, contains one of the exceptions to that general rule. The fee-shifting provision in § 285 allows district courts discretion to award attorney fees "in exceptional cases." The text of § 285 has remained identical since 1952.4 For most of the last ten years, however, judicial interpretation of § 285 had been governed by the "rigid and mechanical formulation"5 set forth by the United States Court of Appeals for the Federal Circuit in Brooks Furniture Inc. v. Dutailier International, Inc.6The Brooks Furniture framework, as it came to be known, permitted attorney fees awards in only two circumstances: if a moving party could prove that its opponent had engaged in material litigation misconduct, or when the case was brought in subjective bad faith and the claims were objectively baseless.7 Moving parties were required to show these elements by clear and convincing evidence.8 Over time, the rigid interpretation of § 285 under Brooks Furniture garnered an increasing amount of criticism from prominent commentators, who argued that patent litigants-particularly defendants-needed a "flexible" rule that would "discourage aggressive suits and frivolous demands."9 Practically speaking, patent defendants have had relatively little opportunity to use fee awards to discourage frivolous, expensive litigation.10 As of last spring, that landscape is shifting.In April 2014, the United States Supreme Court responded to the longstanding criticism that the Federal Circuit had improperly eviscerated congressional intent to provide meaningful fee-shifting in § 285. In two landmark decisions-Octane Fitness, LLC v. ICON Health & Fitness, Inc.11 and Highmark Inc. v. Allcare Health Management System, Inc.12-the Court may have significantly expanded the availability of attorney fee awards in patent infringement suits, and, consequently, fundamentally altered the dynamics of patent litigation suits.This Note documents the shifting landscape of fee awards under § 285, and offers concrete suggestions to litigants, particularly defendants, about how best to take advantage of courts' new potential receptivity to awarding fees in appropriate cases. In Part I, this Note briefly describes the statutory history of the Patent Act's fee-shifting statute, and reviews the provision's interpretation prior to the Supreme Court's twin decisions in Octane and Highmark-including a synopsis of the now-defunct Brooks Furniture framework that governed previously. Part II describes the Octane and Highmark decisions, analyzing the Court's interpretation of the language as well as the purpose behind § 285. Part III examines the post-Octane world. It canvasses and describes the results from the first fifty-five decisions that have applied Octane and Highmark. It includes a survey of the district court opinions deciding a motion for attorney fees under § 285 released between April 29, 2014 (the day Octane and Highmark were decided), and December 31, 2014. Finally, in Part IV, this Note suggests that defendants in patent litigation should more aggressively seek fees in light of the most recent developments. In particular, this Note argues (1) that litigants should strive to inform courts that awards of attorney fees are within the discretion of individual judges considering the totality of the circumstances in a particular case, and (2) that judges should use common sense, informed by their own experience, in determining whether an individual case is "exceptional." The information presented in this Note is designed to assist litigants who wish to take advantage of the apparently broadening opportunity to receive fee awards in the new legal landscape opened by Octane and Highmark. …

Towards an Institutional Challenge of Imprisonment for Legal Financial Obligation Nonpayment in Washington State

Abstract: INTRODUCTIONJane Doe1 is going back to jail. Years ago, Jane was incarcerated for a felony offense committed in Washington State. She left prison owing the state $2500 in Legal Financial Obligations ("LFOs").2 Although she fully intended to satisfy her LFO debts as soon as possible, Jane faced serious difficulties reintegrating into society. She was unable to secure gainful employment after losing her job for being unable to work while incarcerated.3 She had a hard time securing steady housing and had barely begun to confront the social costs arising from state custody.4 The deterioration of her social supports, combined with the economic costs of reentry, as well as costs imposed by the state made her situation bleak indeed. Ironically, the cost of her past incarceration is the very thing that is sending her back to jail. Since her first release, she has paid ten dollars per month without fail toward her account-a typical minimum payment expected of low-income felons.5 Despite adhering to her self-imposed payment schedule, yearly interest and surcharges have nearly tripled her LFO debts in ten years:The State, finally fed up with her growing debt, is now imprisoning Jane for failing to pay.11 Her debt feels insurmountable.12 Maybe, rather than throw away $120 per year at an ever-growing debt, she will just do her time and stop making payments.13 After all, she can be imprisoned for nonpayment regardless of her good faith attempts to contribute.14Jane's case, while hypothetical,15 is representative of the difficulties faced by many low-income felony offenders in Washington State.16 Washington courts impose LFOs on felony offenders17 in order to help fund the criminal justice system and, in some cases, accumulate revenue.18 When individuals fail to pay their LFOs, they can be19 and often are imprisoned.20 Many scholars are decrying Washington's and other states' LFO collection tactics as resurging debtors' prisons.21 Public sentiment is largely critical of LFOs, fueled in part by the discussion surrounding Ferguson, Missouri.22The Washington State Supreme Court has been active in this area of the law, handing down rulings that champion the rights of individual offenders. For example, the Court recently invalidated Spokane's "auto - jail" policy, which mandated imprisonment upon LFO default.23 Even when the litigants fail to timely raise arguments challenging their LFOs, the Supreme Court is willing to accept discretionary review and overturn and remand LFO assignments.24 Although the validity of imprisonment for LFO default was arguably irrelevant to the individual litigants' claims in State v. Blazina,25 the Court devoted a large portion of its opinion to describing problems within Washington's LFO system.26 The Court is sensitive to the mechanisms used to fund the criminal justice system and the negative impacts those funding mechanisms have on low-income individuals.27 It has granted review in multiple cases adjudicating the validity of imprisoning individuals for LFO nonpayment on a case-by-case basis.28 However, litigants have not yet presented the Court with a case in which it can strike down, or at least severely abrogate, the LFO imprisonment system as a whole.29Relying on the Washington Constitution,30 this Comment provides litigants with the tools necessary to begin building that case, challenging imprisonment for LFO default on a systemic level. This Comment argues that modern courts should return to the original, robust understanding of citizens' rights against imprisonment for debt-an understanding that would invalidate much of the current LFO imprisonment system. Part I provides a brief history of imprisonment for debt in the United States. Part II sets forth the current system of imprisonment for LFO default, focusing primarily on Washington State, and highlights the policy arguments against imprisoning individuals for failing to pay. Part III explains why imprisonment for LFO nonpayment violates the state constitution, examining the original purpose of article I, section 17 as well as the provision's more recent judicial degradation. …

An Ethical Dilemma: Attorneys' Duties Not to Reveal Elder Abuse in Washington State

Abstract: INTRODUCTIONAs the American population ages, the problem of elder abuse has received serious attention. Despite widespread criminalization of elder abuse1 and state enactment of mandatory reporting laws,2 elder abuse continues to be vastly unreported.3 With the majority of wealth concentrated among individuals aged sixty-five and older,4 elders are particularly vulnerable to predators.5 Take Bea Bergman, a recently widowed elderly woman with assets valued in the millions.6 Bea had recently lost her husband, and after his death she became confused, as she had exclusively relied on her late husband to handle financial decisions and for transportation.7 Bea required emergency medical assistance for bouts of serious anxiety, and was prescribed medication for her comfort.8 Following her husband's death Bea contacted Maxon Moving Company to donate her husband's personal items to the Salvation Army.9 Bea stated her intention to give the Maxons a marble table, and upon the move, gave Ron Maxon a thank you card with a $2000 check.10Shortly after their encounter, Joyce Maxon befriended Bea, taking her shopping, to church, and accompanying Bea to doctor's appointments.11 Bea began staying with the Maxons and was "progressively integrated into the Maxon family."12 After gaining Bea's trust and friendship, Joyce Maxon and the rest of the Maxon family methodically began exploiting Bea's vulnerability.13 Bea "began writing checks to and purchasing property for the various Maxon family members."14 Over an eight-month "feeding frenzy," Bea paid more than $600,000 "to or for the benefit of the Maxons."15 It was not until Christmas-time that Bea ended her relationship with the Maxons, which was "precipitated by the Maxons' Christmas gifts to Bea, which she considered to be miserly responses to her Christmas gifts to them of $25,000 checks."16 Evidence showed that Bea had bipolar disorder,17 and it was during periods of mania that the family members requested gifts. Specifically, "Joyce orchestrated the transfers [for alternating family members], timing the gift requests to coincide with Bea's manic or 'giving' periods and decid[ed] who would be the next recipient of Bea's bounty."18Bea's story is not uncommon. Financial exploitation is one of the most common forms of elder abuse.19 Attorneys, particularly those with older clients, are in a unique position to identify victims of elder abuse, yet often fail to report it.20 This Comment explores the reasons for attorney non-reporting of elder abuse, even in the face of mandatory or permissive reporting statutes. Specifically, attorneys are bound by the rules of confidentiality to a client, and are not allowed to report a client's secrets without the client's consent.21 Notwithstanding the prohibition against revealing confidences, attorneys may disclose a client's confidential information without the client's consent in very limited circumstances.22 Consequently, in all but the most egregious instances of elder abuse, an attorney may not alert the proper authority that an elderly client is experiencing abuse.23This Comment analyzes the lawyer's ethical duty to report, or not report, elder abuse in five parts. Part I of this Comment identifies and describes elder abuse and aims to provide an understanding of why elder abuse is largely unreported. Additionally, Part I contemplates the attorney's role in combating elder abuse.24 Part II discusses mandatory reporting laws, and this Comment specifically analyzes states' laws that make attorneys mandatory reporters of elder abuse. Part III identifies ethical barriers to attorney reporting of elder abuse, specifically under the American Bar Association's Model Rules of Professional Conduct (Model Rules). Part IV argues that Washington's Rules of Professional Conduct (RPC), which prevent attorneys from reporting elder abuse when it would amount to a breach of the attorney's duty of confidentiality, override the state's designation of attorneys as permissive reporters and essentially nullify the statute. …

Content, Purpose, or Both?

Abstract: INTRODUCTIONIn 2008, Professor Tony Reese presciently told us that the case law on fair use transformativeness favored protecting transformative purpose over transforming content, so that, among other things, exact reproduction could have a very good shot at fair use.1 Since then, defendants who made exact copies with transformative purposes (according to the courts) have done extremely well, while the record of unauthorized transformed content is somewhat more mixed, though also increasingly favorable. Purpose-transformativeness, where a work is reproduced wholesale or nearly so, but in a different context-such as a news report about a controversial artwork that contains an image of that artwork-is regularly enough to justify a finding of fair use. Content-transformativeness, where a work is physically altered, can also lead to a fair use finding where the meaning is changed substantially as a result.The case law is consistent with a broader cultural recognition of the value of fair use of many flavors. As a founder of the nonprofit Organization for Transformative Works (OTW),2 which works to preserve and protect noncommercial fanworks-including fanworks based on existing copyrighted works-I have a deep commitment to both purpose-transformativeness and content-transformativeness, since fanworks regularly perform both kinds of transformations. I have seen fans exercise their fair use rights with increasing resolve, and the concept of transformativeness has helped them articulate and defend their creations.Most debates about the proper meaning of transformativeness are really about this larger shifttowards more robust fair use. Transformativeness has indeed become almost synonymous with fairness, as critics of broad fair use findings charge. Yet those critics' underlying dispute is with fairness, not with transformativeness: they are uncomfortable with fair use findings in favor of exact copies, or sometimes in favor of inexact copies made with different but noncritical purposes.The changing ways in which transformativeness has been invoked provide an example of what Professor Jack Balkin has called "ideological drift," in which "legal ideas and symbols will change their political valence as they are used over and over again in new contexts."3 More broadly, fair use itself has undergone a process of ideological drift, with people disagreeing about whether the meaning of fair use has been fundamentally altered by newer applications, or whether the concept remains the same but the facts to which it has been applied have systematically changed.4 Balkin could have been channeling fair use's current critics when he wrote that "we are likely to see the phenomenon of ideological driftat work when individuals complain that 'a good idea has been taken too far,' or that we must return to the 'original reasons' behind a doctrine or a symbol."5 These disputes matter because legal concepts are both tools that help us understand the world and also themselves contested ground:The parties fight on a battlefield in which the shape of the terrain itself is a potential prize. Ideological drift, in this sense, is the effect of a deeper cause-the struggle over cultural and political meaning through the practice of politics and persuasion, whose reward is ideological and rhetorical power.6Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright's broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn't broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners' authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative "purpose" is an illegitimate category. …

Changing course: revisiting instream flow rulemaking in washington state following swinomish v. ecology

Abstract: INTRODUCTIONWashington water law is at a crossroads. While water in the Pacific Northwest is generally viewed as plentiful, Washington State exhibits a common truth about water: it is not available at the times and in the places where it is most needed.1 While Washington is known as the "Evergreen State,"2 east of the Cascade Mountains, the state is very dry.3 Statewide, the demand for water is often greatest in areas where water is scarce. For example, major irrigation projects in the Yakima4 and Columbia River5 basins of Eastern Washington allow the arid region to produce many high-value crops, including seventy percent of the nation's apples, contributing billions of dollars to the state's economy.6 In Western Washington, population growth has put increased pressure on water resources, particularly in rural areas where landowners lack access to public water supplies and must therefore locate a private supply.7Adding to the challenge, demand for water peaks during the late summer and early fall seasons when the least amount of water is available.8 Melting snowpack feeds many of Washington's rivers and streams throughout the spring and early summer.9 As snowpack declines, groundwater takes the place of snowmelt, supplementing lower stream flows.10 Natural stream flows reach their lowest point in late summer and early fall after the snowpack melts and the weather remains dry.11 During this time, demand for water increases for both agriculture and domestic uses.12 At the same time, sufficient water must be left in streams to sustain salmon and steelhead as they migrate inland to their spawning grounds.13 After years of decline, Washington's salmon populations now represent only a fraction of historic populations.14 In addition to the cultural and economic impact of salmon,15 as an "indicator species," salmon populations reflect the overall health of an ecosystem and are therefore used as a basis for protecting environmental values in Washington's rivers and streams.16Managing Washington's water in light of these competing demands for a limited and variable resource is a challenge. During the summer of 2015, a season of record warm temperatures and uncommonly low snowpack resulted in a "severe" drought declaration throughout Washington State.17 With climate change, decreased snowpack, and continued population growth presenting additional future challenges,18 Washington must manage its water with ever-increasing thoughtfulness. Thus far, Washington State has been an innovator in water resource management and has existing tools to help it meet these challenges.This Comment begins in Part I by describing Washington's existing legal framework for managing its water resources. From its origins in prior appropriation doctrine, which allocates water based on a priority system of "first in time, first in right," the State adopted legislation establishing a comprehensive planning process for water resources and setting forth principles for allocating water among competing uses.19 Washington law now requires minimum amounts of water known as "base flows," "minimum flows," or "instream flows,"20 to be left in its rivers and streams to protect fish, wildlife, and other environmental values.21 Water must also be allocated between competing uses to secure the "maximum net benefits" for the people of Washington State.22In Part II, this Comment explains how Ecology establishes required "instream flows" by adopting rules that identify a target flow level that should be met at various locations along a river or stream.23 Ecology uses fish habitat as a baseline for setting these flows.24 Ecology began adopting instream flow rules in the 1970s, and as of April 2015, has adopted rules for twenty-nine of the sixty-two watersheds in Washington.25 As instream flow science advances, Ecology uses methods to set modern instream flow rules that are more precisely tailored to the impacts on salmon and other fish populations than early methods. …

Administrating patent litigation

Abstract: INTRODUCTIONRecent efforts to reform patent litigation have involved every branch of the federal government. Congress, after repeated calls to action,1 passed the 2011 Leahy-Smith America Invents Act, the largest and most expansive overhaul to the patent statute in almost sixty years.2 The White House, an office not well known for influencing patent policy,3 announced a multipart executive initiative aimed at curbing some of the abuses of the patent system.4 And the federal judiciary-especially the Supreme Court-has been busy crafting new doctrines and modifying old ones in an attempt to shape patent litigation.5But despite this wide marshalling of federal resources, one branch remains curiously absent from the chorus of patent litigation reform: administrative agencies. The U.S. Patent and Trademark Office (PTO), while admirably vocal in its efforts to improve patent issuance, has largely disclaimed a role in reforming patent litigation.6 Non-PTO administrative agencies, meanwhile, have remained mostly silent on the issue.7 And the recent legislative, executive, and judicial efforts in the area have largely ignored the variety of roles administrative agencies- especially agencies other than the PTO-play in patent litigation.8This silence is not because administrative agencies have little invested in patent law. To the contrary, agencies have recently been playing increasingly important roles in patent policy debates.9 And there has also been an increase in several specialized species of patent litigation that directly involve non-PTO agency adjudication.10 How agencies function-and should function-in patent litigation is consequently becoming an increasingly important area of patent litigation reform. 11To that end, this Article provides an account of administrative agencies in patent litigation missing from patent reform proposals and current scholarship. It provides a synoptic view of the functions that administrative agencies currently play in patent litigation; it describes some of the problems with this involvement; and it provides several cheap, easy, and politically available tools to solve them. Specifically, this Article provides a framework for when and how agencies should- and should not-become involved in patent litigation, either as parties, as experts, or as traditional rule-making authorities. This prescription ultimately seeks to better "administrate" patent litigation.12Indeed, administrative agencies currently have a variety of roles in administrating patent litigation. From "litigation gatekeepers" with the authority to "oversee and manage private litigation efforts,"13 to scientific and technical experts,14 to bodies of post-adjudicatory review,15 to alternative venues,16 administrative agencies appear to have wide-ranging functions in a broad number of patent disputes. Furthermore, these administrative proceedings take place over a broad stretch of a patent dispute's life cycle, from the initial complaint, through trial and settlement, and even beyond. This descriptive account of agency functions in patent litigation challenges the widely held notion that federal courts alone have the authoritative say over who may sue for patent infringement, where, and how.17Unsurprisingly, agency administration of patent litigation is not without its own set of problems. As with other private interactions with agencies, agency administration of patent litigation suffers from "regulatory gamesmanship,"18 industry and political capture,19 adjudicatory uncertainty,20 and inconsistent judgments.21 These problems, to be sure, are neither new nor unique to patent litigation. But patent litigation-given the putatively regulatory nature of the patent right itself22-gives these problems a texture all their own. Poor agency administration of patent litigation affects patent holders as well as accused infringers, delays litigation, slows investment, and makes settlement problematic.26 Parties facing patent lawsuits where agencies are involved frequently get more than they bargained for. …

Campbell at 21/Sony at 31

Abstract: INTRODUCTIONThe occasion for this symposium is that Campbell v. Acuff-Rose Music, Inc.1 had its twenty-first birthday earlier this year, and has therefore achieved its majority. We've been invited to examine Campbell's "profound influence on fair use."2 When the Court handed down the Campbell decision twenty-one years ago, the opinion garnered generally positive reviews.3 More recently, the decision, or its application by lower courts, has inspired significant criticism. The most common complaint is that Campbell's instruction to focus on the transformativeness of defendant's use has given lower courts license to find a use fair whenever they are so inclined.4When copyright lawyers gather to discuss fair use these days, the most common refrain is its alarming expansion.5 This distress about fair use's enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. It's uncontroversial that the scope of U.S. copyright has expanded in the past fifty years.6 It covers a broader array of copyrightable subject matter.7 It lasts longer.8 It grants owners additional rights.9 Court decisions have expanded the scope of traditional copyright rights.10 Congress has greatly enhanced the remedies for infringement.11 Individuals and organizations supporting strong copyright laws applaud these expansions.12 These same interests express surprise and dismay that, over the past fifty years, the fair use privilege has come to shelter a broader range of uses.13I have no reason to doubt the sincerity of those expressions of dismay. The idea, though, that copyright owners' rights could be greatly inflated without inspiring a comparable expansion in fair use seems delusive. If many, many more uses are arguably prima facie infringing now than before, it follows that fair use will need to stretch to permit more of them. None of the voices expressing the hope that fair use could be confined or returned to its mid-twentieth century boundaries seem to endorse a proposal to cut back copyright rights to their mid-twentieth century limits.14 They have been steadfast in insisting that it would be dangerous to allow Congress to consider balancing expanded copyright with appropriately expanded express limitations and exceptions.15 They urge, nonetheless, that fair use must be narrowly contained.16If Campbell is twenty-one years old, that means that another Supreme Court fair use case, Sony Corp. of Am. v. Universal City Studios,17 had its thirty-first birthday in January. Some copyright lawyers with long memories identify Sony as the Supreme Court case in which fair use started to go wrong.18In the 1976 Copyright Act, Congress replaced a scheme of bounded, defined copyright rights specified for each copyright subject-matter category with a broad statement of generally applicable copyright exclusive rights offset by a list of detailed exceptions.19 It also codified the doctrine of fair use. The Sony case, filed within weeks of the 1976 Act's enactment, was the first case to pose the question whether fair use was an appropriate shelter for conduct that Congress had failed to consider.20 Answering that question in favor of either party would require some revision in traditional understandings of fair use.In Sony, the Court reshaped fair use in order to limit contributory liability and shelter personal uses.21 That fair use formulation didn't work out so well for traditional beneficiaries of the fair use privilege, most of whom made uses that were both public and commercial.22 In Campbell, the Court revised fair use again for the benefit of traditional fair users.23 That might have left personal users out in the rain. But in the ten years that the Sony test had held sway, readers, consumers, and businesses that made products to augment consumers' enjoyment of copyright works had adjusted their expectations and habits to a world in which fair use shielded personal uses from copyright liability. …

A Tale of Three Prejudices: Restructuring the " Martinez Gateway"

Abstract: INTRODUCTIONIn the vast majority of cases, litigants in the United States get a single bite of the apple. The issue, case, or appeal may be waived, barred by the passage of time, or simply lost on the merits. The litigant is then precluded from raising the issue or claim in a subsequent proceeding. The same principle generally applies to habeas corpus-if a petitioner fails to raise a claim at the appropriate moment or before the correct court, that ground for relief could very well be forfeited forever. When a state court dismisses or rejects a habeas petitioner's alleged grounds for relief on a procedural basis (for example, the failure to comply with a statute of limitations), federal courts will deem such claims "procedurally defaulted."1 Out of deference to the state court's prior determination, federal habeas courts generally will not adjudicate such defaulted claims.2 While there are a variety of mechanisms by which a habeas petitioner may resurrect barred claims, each carries a high burden of proof.3 The most common method of breathing life into a procedurally defaulted claim requires the habeas petitioner to demonstrate both "cause" for not raising the claim below and "prejudice" from not being allowed another shot at the merits in a federal proceeding.4Petitioners seeking to resurrect ineffective-assistance-of-counsel claims once faced the same gauntlet as all other procedurally defaulted habeas grounds for relief.5 If a petitioner fails to raise an ineffective-assistance-of-counsel claim in an earlier state court proceeding, it becomes exceedingly difficult to reach the merits of that ground for relief during any subsequent federal review.6 This situation was exacerbated by the United States Supreme Court's 1991 decision in Coleman v. Thompson,7 which held that an attorney's ineffective assistance could not constitute the "cause" required for a petitioner to resurrect a procedurally defaulted claim.8In 2012, the Supreme Court narrowly opened the door previously sealed by Coleman. Under Martinez v. Ryan,9 petitioners can now use either their state post-conviction review (PCR) counsel's ineffectiveness or their own status as a pro se litigant as the "cause" necessary to excuse a procedural default.10 Part of the Court's reasoning was that effective assistance of counsel is a "bedrock principle in our justice system."11 Due to a variety of factors-including the need for both an expanded record and new counsel-direct review is often not the most appropriate procedural phase for adjudicating ineffective-assistance-of-trial-counsel (IATC) claims.12 One of the Court's primary concerns was that, where a state required an IATC claim to be initially raised on collateral review, an incompetent counsel or the petitioner's own unfamiliarity with the legal system could result in a procedural default.13However, the Martinez test is not a simple one.14 It requires a petitioner to establish four elements concerning his or her defaulted claim: (1) the claim is "substantial"; (2) the state PCR counsel was ineffective or there was no PCR counsel; (3) the claim was initially heard in state PCR proceedings; and (4) the claim was required, under state procedural law, to be raised in the state PCR proceeding.15 While the Supreme Court subsequently altered the fourth prong,16 Martinez still controls the first three. Although courts refer to the Martinez test in different ways,17 this Comment will style it as the "Martinez gateway,"18 due largely to its procedural similarities with the "actual innocence gateway."19The Martinez test is not without its problems. The exact language of the opinion is open to interpretation, as the Court included conflicting definitions for the same element.20 There are also inherent tensions between Martinez and the incorporated Strickland v. Washington21 ineffective-assistance-of-counsel standard.22 Further, the Court did not go far enough to ensure that the high burden placed on petitioners by Strickland does not swallow the equitable exception designed in Martinez. …

Market Effects Bearing on Fair Use

Abstract: INTRODUCTIONCopyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use.1 A fair use of a copyrighted work is generally one that would promote the general advancement of art and culture, even if it falls within the scope of a third party's copyright protection. A court determines whether an otherwise infringing work is a fair use by weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work.2 Many scholars have long been troubled by courts' conclusory, or circular, analyses of this factor.3 A prominent treatise on fair use calls this factor "[t]he least understood, and, as a consequence, most misapplied."4 Sometimes, courts will summarily conclude that a copyright owner is harmed by the infringer's failure to license the copyrighted work, which, on its own, counts against any alleged infringement being a fair use.5 Other times, courts will just as abruptly exclude certain market effects, such as markets for criticism,6 from their consideration of this fair use factor, thereby deeming these uses to be fair with regard to this factor.7 With such short-circuited analyses, courts can expand or diminish the scope of what constitutes fair use without the penetrating justifications this factor's examination deserves.8In Campbell v. Acuff-Rose Music, Inc.,9 the Supreme Court issued a foundational ruling on the contours of the fair use doctrine when it held that transformative works, such as parodies, will frequently be fair uses and thus immune from classification as copyright infringement.10 In applying the law's four-factor fair use analysis, the Court emphasized that transformative works are important contributions to society unless they cause relevant harm to the copyright owner's market (from which the Court excluded a market for criticism).11I argue that the Campbell decision opened the door to a laudable analytical framework for the bearing of market effects on fair use. However, the Court obfuscated this framework by not underscoring its reasoning for this fair use factor, which has meant that many-though not all-courts continue to offer malnourished or unreasonable analyses of this factor.This Article seeks to excavate Campbell's skeletal framework and to add analytical flesh and heft to it. Campbell can be read to improve consideration of market effects bearing on fair use in two ways. First, Campbell supports a more full-bodied investigation of the market effects-both harms and benefits-of defendants' works on plaintiffs' copyrighted works.12 One can infer as much from a combination of Campbell's analytical steps: placing a strong emphasis on the value of transformative works, differentiating different sorts of market effects, and recognizing the strong connections between a copyrighted work and a transformative work making use of it. Implicit in this reasoning is the possibility that works that transform existing material can draw attention to, enhance, or affirm the original work's role in the marketplace.Approximately twenty years after Campbell, some courts have begun to recognize that market benefits ought to count in favor of finding that a defendant's use is fair.13 The recent fair use decision in the Southern District of New York on Google Book Search is one such example. 14 Similarly, copyright holders-including those that have been litigiously protective of their copyrighted material in the past, such as Disney15- are increasingly acting in ways that suggest they realize that certain unauthorized third-party uses of their copyrighted works can redound to their financial benefit. For instance, Disney has opted not to rein in those who have covered, parodied, or built on the songs, characters, and other material from its hit movie Frozen.16A court's appreciation that market harms and benefits can both matter in assessing fair use helps eliminate conclusory reasoning. …

The Law of Intimate Work

Abstract: INTRODUCTIONConsider the following cases. A hospital seeking to hire a labor and delivery nurse may consider only women for the position, although such discrimination would be unlawful in hiring almost all other workers.1 A home health aide hired to provide companionship to an elderly client need not be paid minimum wage or overtime, although an employer would violate wage-and-hour law by failing to pay almost any other worker.2 A lawyer or therapist owes fiduciary obligations to her clients, although most other workers are held only to arm's-length contractual obligations to their clients.3 A non-compete agreement restricting a doctor from ongoing relationships with patients is unenforceable, although a court would not hesitate to enforce the same agreement as applied to an accountant, a hairstylist, or most any other worker.4This Article explains and unifies these exceptional cases by introducing the concept of intimate work. Intimate work involves the paid provision of services entailing intimacy to a range of consumers. The examples above reveal that law often singles out intimate work for special treatment, creating a de facto law of intimate work. To appreciate the breadth of this phenomenon, one need look no further than two of the most watched Supreme Court cases last term. Burwell v. Hobby Lobby Stores, Inc.'s5 recognition of employers' religious freedom may lead to special treatment for intimate work under antidiscrimination law, permitting wedding vendors, for example, to refuse service to gay couples.6 And Harris v. Quinn's7 holding that home healthcare providers are the lone public employees exempt from union dues sets intimate work apart under labor law.8 Despite the special place of intimate work throughout a range of laws, no scholar has yet synthesized the law of intimate work or assessed its effectiveness.9By developing the category of intimate work as a descriptive matter, this Article brings the unique features of intimate work, and its current regulation, into full view. Normatively, the Article reveals the incoherence of the existing law of intimate work. Across a wide swath of doctrines-from antidiscrimination law, to wage-and-hour law, to retaliation protections, to fiduciary law, to non-compete agreements, to the misappropriation of trade secrets, to remedies for unlawful termination-law has not done enough to recognize the unique circumstances of intimate work. This Article argues for a new unified field of intimate work law to protect the circumstances under which intimate workers labor and the public as consumers receive critical services.Bringing together intimacy and work joins two spheres that law tends to consider separate.10 Yet, in everyday life, intimacy and work are anything but distinct. Workers-doctors, nurses, divorce lawyers, hairstylists, and bartenders-have long engaged in the intimate aspects of life. More recently, intimate work is on the rise, as workers have come to provide services that were once the hallmark of family life.11 Dating counselors guide us in how to pick the right partners; wedding planners instruct us in how to create memories; lactation consultants teach us how to breastfeed; and funeral directors arrange our deaths.12 It is now possible to rent a worker to serve as a mom, husband, grandma, grandpa, or friend.13While the varieties of intimate work differ, they are united by the presence of a consumer seeking and receiving intimacy. The intimacy consumer disrupts the arm's-length employer-employee dyad that law, in contrast to social science, assumes is at the heart of all employment relationships.14 The close relationship between the worker and consumer generates value as a source of personal and professional support for both consumers and workers, but also generates substantial vulnerability.15 Together, this value and vulnerability place participants in the intimate work relationship in a unique position that calls for tailored regulation. …

Coping with Uncertainty: Cost-Benefit Analysis, the Precautionary Principle, and Climate Change

Abstract: INTRODUCTIONAs two leading climate scientists have said, "[t]he further we push our Earth outside of its mode of operation of the past millennia, the further we steer it into uncharted waters."1 Any approach to climate policy must contend with this uncertainty. Ideally, when deciding how much to reduce emissions or whether a particular species is likely to be endangered by climate change, policymakers would have a reliable forecast of the precise future impacts of climate change. Although scientists have learned a great deal about climate change, climate science still falls short of this ideal. Yet, decisions must be made in the meantime.Two rival approaches for dealing with this problem are on the table: the precautionary principle (which is favored by most environmentalists) and cost-benefit analysis (which is favored by most economists).2 Many scholars have taken one side or the other on this debate. A few have attempted to reconcile the two.3 There have also been examinations of some key decisions in climate policy. But a more systematic, detailed analysis of how the two approaches operate in practice is essential to improving policy analysis. This Article aims to supply that analysis.Part I of the Article examines the scientific uncertainties that policymakers must confront. The key uncertainties do not involve the existence of climate change or its link with greenhouse gas emissions, both of which are accepted by the overwhelming majority of climate scientists.4 Rather they involve its severity. Although we have learned a great deal about the Earth's climate, there are still some significant gaps. Unless or until these gaps are filled by research, they mean that climate policy must build on a scientific foundation that cannot fully predict just how bad climate change will be.Parts II and III examine the theory and practice of the two contesting approaches to climate policy through use of case studies. As these case studies show, the dispute over the best way to deal with uncertainty is pressing and already confronts government leaders and administrative agencies.Part II focuses on the precautionary principle as a guide to climate policy. Here, the examples are the international effort to establish the level at which the risks of climate change become unacceptable, the Environmental Protection Agency's (EPA) finding that greenhouse gases warrant regulation under the Clean Air Act, and the Fish and Wildlife Service's (FWS) determination that because of climate change, polar bears are likely to become an endangered species.Part III analyzes efforts to determine the economic impact of future climate change as a factor in cost-benefit analysis. The main example is the federal government's estimate of the social cost of carbon, but understanding that estimate requires considerable preliminary exploration of climate economics. As we will see, the economic uncertainties amplify the scientific ones, making confident conclusions difficult. But the economic models do confirm the crucial role of three factors in determining the social cost of carbon: the magnitude of climate sensitivity, the size of the discount rate, and the handling of possible catastrophic outcomes.Part IV then offers some brief conclusions based on these case studies. The precautionary principle seems to work well enough in identifying when climate risks require serious policy responses, but provides less guidance about the extent of the response. On the cost-benefit side, uncertainty about the economic impact of climate change remains great, driven largely by disagreements about how heavily to weight harms decades or even centuries in the future and about how to take into account the risks of high climate sensitivity and of catastrophic outcomes.Some ways of combining use of the precautionary principle and economic analysis have been suggested, but these hybrid approaches have difficulties as well as promise. …

Nothing Less Than the Dignity of Man: The Eighth Amendment and State Efforts to Reinstitute Traditional Methods of Execution

Abstract: INTRODUCTIONIf some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path [lethal injection] and return to more primitive - and foolproof-methods of execution . . . . [I]f we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.1- Judge Alex Kozinski, United States Court of Appeals for the Ninth CircuitSince the United States Supreme Court lifted the moratorium on capital punishment in 1976,2 lethal injection has been the predominant method of executing death row inmates in the United States.3 In recent years, an export ban by the European Union has made it increasingly difficult for United States prisons to procure the drugs typically used in lethal injections.4 The unavailability of lethal injection drugs has led some states to consider legislative proposals to reinstitute traditional methods of execution, including electrocution,5 firing squad,6 and lethal gas.7The efforts of these states to reinstitute traditional methods of capital punishment raise the question of whether older methods of execution still comply with the Eighth Amendment's prohibition on cruel and unusual punishments.8 The Supreme Court has not considered the constitutionality of certain traditional methods of capital punishment in well over a hundred years.9 Given the progress in science, medicine, and contemporary notions of morality and punishment, can execution methods once deemed acceptable still pass constitutional muster?This Comment argues that Supreme Court jurisprudence, particularly with respect to the Eighth Amendment's "evolving standards of decency,"10 can be used to analyze the constitutionality of the traditional methods of capital punishment. The Court has previously looked to the laws of the states to determine if a consensus exists as to which offenders are eligible for capital punishment.11 Looking again to the laws of the states, this Comment argues that the states' shift away from the use of electric chairs, gallows, gas chambers, and firing squads represents a broadening consensus against traditional methods of execution. This broadening consensus suggests that traditional methods of execution now violate the Eighth Amendment's prohibition on cruel and unusual punishments.Part I of this Comment examines the historical background and evolution of capital punishment in the United States. Part II surveys the common methods used to execute capital offenders prior to lethal injection. Part III considers the lethal injection drug shortages, which have led to proposals to reinstate traditional methods of capital punishment in several states. Part IV analyzes the constitutionality of traditional methods of execution against the framework of the Supreme Court's Eighth Amendment jurisprudence. Part V argues that states' efforts to revert to traditional methods of capital punishment do not meet the "evolving standards of decency" used by the Court to analyze Eighth Amendment issues.I. THE EVOLUTION OF CAPITAL PUNISHMENT IN AMERICAA. Capital Punishment in the ColoniesThe English colonists brought capital punishment with them when they immigrated to America.12 In the pre-incarceration era of colonial America, capital punishment was the "equivalent of prison today-the standard punishment for a wide range of serious crimes."13 American capital punishment drew from England's "Bloody Code,"14 with colonies imposing capital punishment for a number of crimes, including murder, rape, manslaughter, robbery, burglary, theft, counterfeiting, and arson.15 Some colonies also enforced capital punishment for crimes like blasphemy, idolatry, adultery, witchcraft, and sodomy.16 Capital punishment was widely accepted in the colonies, not only for its deterrent and retributive effects, but also for its perceived ability to facilitate repentance in criminals.17In the late eighteenth century some "criminals were occasionally pressed to death, drawn and quartered, and burned at the stake. …

Removal Jurisdiction over Mass Actions

Abstract: INTRODUCTIONMass actions exist because Congress did not trust state courts to properly adjudicate aggregate litigation.1 Mass actions were not a formal kind of litigation before Congress passed the Class Action Fairness Act of 20052 ("CAFA"), but were created to stanch the tide of abusive class action litigation-at least in Congress' view.3 Legislation was necessary because, according to Congress, an out-of-control system of class action litigation had led to unfair results4 and large payouts to greedy plaintiffs' attorneys.5 State courts in particular kept "cases of national importance out of Federal court"6 by applying their governing class action rules "inconsistently" and "inadequate[ly] supervis[ing]"7 aggregate litigation. And stringent diversity jurisdiction rules further kept many defendants from removing such suits to federal court.8 Through CAFA, Congress gave defendants a new avenue by which to federalize state court litigation. Defendants could now remove state litigation that merely resembled a class action.A mass action is a different procedural device than a class action.9 However, the mass action device aggregates litigation so that it generally operates the same way as a class action.10 A mass action is formed when plaintiffs bring together-or, in the words of the statute, propose a joint trial of common issues of fact or law11-state court suits.12 The joined suits must also meet CAFA's other jurisdictional requirements, including numerosity and amount in controversy.13 When plaintiffs make a "proposal," the defendant may remove the suits as one consolidated suit to federal court.14 It has been unclear, however, what is a proposal and how-if at all-federal courts should interpret the effects of the "proposal" the plaintiffs have made when the courts determine whether they have subject matter jurisdiction.15Despite the contention that mass actions would be a rarely used procedure,16 the mass action provision has become the subject of intense litigation.17 As that litigation has wended its way through the courts, defining the contours of the mass action provision has been a challenging process. One court described the mass action provisions as "an opaque, baroque maze of interlocking cross-references that defy easy interpretation."18 Another called the provisions a "Gordian knot."19 Still another stated simply, "CAFA as a whole, and the mass action provision in particular, is confusing."20For their part, litigants-both plaintiffs and defendants-are litigating to test the boundaries of federal court jurisdiction over mass actions. Plaintiffs have attempted to keep their suits in state court by structuring them to avoid CAFA's federal jurisdiction triggers.21 Defendants have removed to federal court on novel theories. For example, they have argued that the number of real parties in interest meets the 100-plaintiff threshold that CAFA requires22 and that a bellwether trial is in effect a "joint trial."23 In 2013, the Supreme Court decided Standard Fire Insurance Co. v. Knowles,24 which demonstrates the gamesmanship CAFA in general has engendered. A class action plaintiff in state court stipulated that the putative class would not seek damages above $5 million.25 In doing so, he sought to avoid CAFA's $5 million amount-in-controversy threshold.26 The district court found that damages would have exceeded that amount but for the putative class member's stipulation, but that because damages were below the threshold, there could be no federal court jurisdiction over the action.27 The Supreme Court disagreed, holding that a plaintiff could not stipulate to any limit on the amount of damages it would pursue when there was a putative class because there was no class yet that could be legally bound.28 Thus, the contours of CAFA jurisdiction-including under the mass action provision-are still being worked out in the federal courts.It is against this backdrop that this Comment takes up CAFA's less well-understood mass action provision. …