Showing papers in "Washington Law Review in 2018"

Alexa, What Should We Do about Privacy? Protecting Privacy for Users of Voice-Activated Devices

Abstract: Alexa, Amazon’s digital voice assistant, and devices like it, are increasingly common. With this trend comes growing problems, as illustrated by a murder investigation in Bentonville, Arkansas. Police wanted Amazon to turn over data associated with the suspect’s Echo device, hoping it had overheard something on the night of the murder. The case sparked wide-spread interest in the privacy implications of in-home devices that record audio of users. But the biggest threat to user privacy is not that Alexa may overhear a crime—it is that law enforcement will use such devices in new ways that users are not prepared for during investigations. Thus, a solution is needed for users to have the confidence and certainty that bringing these devices into their homes will not erode their privacy. This Comment proposes that companies should ensure privacy protections are engineered into their devices, and that legislatures should adopt forward-looking statutes to ensure protections for users.

Fifty Shades of Gray Infrastructure: Land Use and the Failure to Create Resilient Cities

Abstract: Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for the construction of infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel “gray infrastructure.” Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control, remove, and manipulate ecosystems. Left untouched, often these ecosystems provide critical services that strengthen a community’s resilience to disasters and slow changes. This article describes the current state of land use laws and their focus on human-engineered, gray infrastructure developed as part of private projects. It explores how that infrastructure is reducing community resilience to change. By creatively combining human-engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure erected by private parties, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem

Abstract: As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often-homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. This Article is the first to examine perhaps the most powerful law impacting AI bias: copyright. Artificial intelligence often learns to “think” by reading, viewing, and listening to copies of human works. This Article first explores the problem of bias through the lens of copyright doctrine, looking at how the law’s exclusion of access to certain copyrighted source materials may create or promote biased AI systems. Copyright law limits bias mitigation techniques, such as testing AI through reverse engineering, algorithmic accountability processes, and competing to convert customers. The rules of copyright law also privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased. Second, it examines how a different part of copyright law—the fair use doctrine—has traditionally been used to address similar concerns in other technological fields, and asks whether it is equally capable of addressing them in the field of AI bias. The Article ultimately concludes that it is, in large part because the normative values embedded within traditional fair use ultimately align with the goals of mitigating AI bias and, quite literally, creating fairer AI systems.

Emojis and the Law

Abstract: Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail. Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them. One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized through the Unicode Consortium. These differences can unexpectedly create misunderstandings. The diversity of emoji depictions isn’t technologically required, nor does it necessarily benefit users. Instead, it likely reflects platforms’ concerns about intellectual property protection for emojis, which forces them to introduce unnecessary variations that create avoidable confusion. Thus, intellectual property may be hindering our ability to communicate with each other. The Article will discuss how to limit this unwanted consequence.

The Marital Wealth Gap

Abstract: Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata. How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap.

Privacy, Press, and the Right to be Forgotten in the United States

Abstract: When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value of older truthful information and decide at times that privacy should win out In other words, they recognize that an individual whose embarrassing past has been revealed by another can sue for invasion of privacy in the United States, even when the historic information was once public This Article explores Right to Be Forgotten-sensibilities in United States jurisprudence and suggests that such a Right has a foundation in historical case law and present-day statutes It argues that the legal conception of privacy in one’s past may have some limited practical and important purposes but warns that any Right to Be Forgotten must be cabined effectively by presuming newsworthiness — a word defined similarly in law and journalism — in order to protect significant and competing First Amendment interests at a time when people in high places have vowed to curb press freedoms

Privacy's Double Standards

Abstract: Where the right to privacy exists, it should be available to all people. If not universally available, then particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This, despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. This Article unearths disparate outcomes in public disclosure tort cases, and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state actors) make the substantive rule of decision and enforce the law. Under this theory, the First Amendment has been used to limit the scope of privacy and defamation torts as infringing on the privacy invader’s speech rights. But as this Article argues, if state action applies to tort law, other constitutional provisions should also bear on the substance of common law torts. This Article highlights the selective application of constitutional law to tort law. And it uses the unequal effects of prevailing public disclosure tort doctrine to explore whether constitutional equality principles can be used to reform, or nudge, the currently weak protections provided by black letter privacy tort law. By so doing, the Article also foregrounds a doctrinally-sound basis for a broader discussion of how constitutional liberty, due process, and equality norms might influence tort law across a variety of substantive contexts.

Forum-Selection Provisions in Corporate “Contracts”

Abstract: We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive legal forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions. We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contact doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for the hybrid nature — public and private — of such terms. Specifically, the state’s role should render forum-terms invalid that oust federal courts of diversity jurisdiction. Likewise, because of a lack of any meaningful consent, a forum-term that applies to a claim that neither is derivative nor brought by a shareholder should not be enforced. In other situations, courts should consider, before enforcing a corporate forum-term, whether adjudicating the entire dispute in the designated forum would be efficient (e.g., whether the court has subject matter jurisdiction over all claims) or fair (e.g., whether the procedural rules, including the limitations period, of the designated forum are substantially more advantageous to the defendants than those of the state that supplies the substantive law. On the other hand, several factors may tip the balance towards enforcement in other corporate settings and, in particular, in merger-related representative suits. First, the fact that “consent” by class members to these suits is also limited counter-balances concerns about the limited consent shareholders may have given to the forum-term. Second, a forum-term reduces the ability to avoid the crack-down on “disclosure-only” settlements — that provide broad releases, but entail minimal recovery — that Delaware courts have embarked on. Finally, we consider the implications of corporate forum-terms for interstate competition for incorporation and for corporate litigation. We raise questions whether Delaware in adopting legislation that discriminates against out-of-state courts, sought to centralize corporate litigation in its own courts for the benefit of its local bar rather than enhance its attractiveness as corporate domicile, and thereby have provided grounds for sister states to refuse to enforce forum-terms.

Does Small Group Health Insurance Deliver Group Benefits? An Argument in Favor of Allowing the Small Group Market to Die

Abstract: The small group health insurance market is failing. Today, fewer than one-third of small firms now offer health insurance and the number of people covered by small group insurance continues to drop. These problems invite the obvious question: What should be done about the small group market? Past scholarship on the small group market has largely focused on documenting the market’s problems, evaluating the effectiveness of prior reform efforts, and proposing regulatory changes to stabilize the market. This Article takes a different approach to the small group problem by asking a previously unasked question: Does the small group market deliver group insurance benefits? Group insurance, first established in the life insurance industry, came about because it offered insureds a better deal than individual coverage. Group insurance provided four core benefits: reduced adverse selection, lower administrative costs, greater access to insurance, and tax-subsidized premiums. This Article argues the small group market largely fails to deliver the core benefits of group coverage. For many, the small group market offers no better deal than the individual market. Given these findings, it is hard to justify further interventions to save the small group market. The decline and dissolution of the small group market would likely shift millions to the individual market, resulting in a substantially larger and more stable individual market.

Confidentiality in Patent Dispute Resolution: Antitrust Implications

Abstract: Information is critical to the functioning of the patent system. Legal rules encouraging the patent challenges that produce information regarding patent validity and scope are evidence of this importance. In contrast, licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents, where a patent’s elimination of competition can increase market uncertainty. Information about licensing terms is particularly important in one of today’s most important patent licensing contexts: FRAND licensing. Standard-setting organizations that define the technologies used in important products like smartphones typically require their members to commit to license patented technologies that are adopted in standards on fair, reasonable, and non-discriminatory (FRAND) terms. The non-discriminatory element of this commitment is difficult for potential licensees to enforce without information about the licensing terms to which other licensees have agreed. Where confidentiality agreements cause competitive harm, antitrust law may provide a remedy. Several U.S. Supreme Court cases have condemned agreements that suppress information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, particularly when it involves only private negotiations. In other con-texts, however, and notably in arbitration, which is a substitute for open court proceedings, the competitive balance is more problematic. Indeed, U.S. patent law mandates that patent arbitration awards be made public through the Patent and Trademark Office, though this requirement is generally ignored. This Article describes the importance of patent licensing information and dis-cusses the antitrust implications of confidentiality agreements, particularly in the FRAND context and in arbitration. The Article also offers several ways in which parties, standard-setting organizations, and arbitration bodies could seek to avoid the possible anticompetitive effects of confidentiality.

Contesting Police Credibility

Abstract: Criminal cases often come down to credibility contests between two actors: the complainant, testifying for the government, and the defendant. In theory, the defendant’s opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant is the party presumed innocent. But when the government’s witnesses are police officers, the converse occurs. Despite the fact that the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining and utilizing evidence about officers that would call into question their credibility as witnesses. The thesis of this Article is that, when it comes to helping a jury assess the credibility of defendants and police officer witnesses, the law gets it backward. On the one hand, our data collection systems and evidentiary doctrines allow the government nearly-instant access to a defendant’s entire history of encounters with the law, and give prosecutors myriad means to introduce evidence suggesting that the defendant is, based on prior misdeeds, guilty of the charged crime. On the other hand, the law perversely prevents defendants from casting doubt on the credibility of police officers, by making police misconduct records confidential and, in many cases, inaccessible to defendants. This unequal distribution of access and ability to utilize information creates trials where the jury is exposed to extensive evidence suggesting the accused is an incredible and likely guilty party, but remains naive to the many reasons to question the credibility of the police officer. The Article is grounded in a rich tradition of scholarly literature critiquing the many ways the American criminal justice system venerates law enforcement and represses people of color. It provides a novel contribution to that literature by exposing the particularly problematic imbalances that result when the government is not only prosecuting a defendant, but also acting as her primary accuser. After analyzing the doctrines enabling these inequities, the Article then provides recommendations for reform in three areas: (1) the evidentiary rules that permit governments to access and utilize bad acts and character evidence against defendants; (2) the lack of thorough recordkeeping and accurate data pertaining to police misconduct; and (3) the laws that prevent defense counsel from accessing and utilizing police misconduct records that do exist.

The Multiple Justifications of Occupational Licensing

Abstract: Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational licensing to significantly limit when and how licensing can be used through their interpretation of antitrust law and the First and Fourteenth Amendments of the Constitution. This Article takes a step back to argue that these critiques of occupational licensing, and the federal jurisprudence based on them, embrace a narrow view of the role of licensing in the economy that is grounded in both an embrace of economic libertarianism and an antagonism towards professional self-regulation. While this view generally recognizes licensing as justified to protect the public from harm in limited situations, it disregards a range of other values that occupational licensing has historically been viewed to promote. This Article draws on social science literature to categorize these other justifications as (1) fostering communities of knowledge and competence; (2) developing relationships of trust; and (3) buffering producers from the market. The Article uses specific examples from the judiciary’s occupational licensing jurisprudence to show how acknowledging this broader set of justifications should constrain the courts from imposing a narrow view of licensing’s role in the economy. It ends by suggesting that if the federal government is to shape occupational licensing policy, Congress and the Executive are better placed than the judiciary to take the lead.

Snake Oil Speech

Abstract: Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech.

Visual Metaphor and Trademark Distinctiveness

Abstract: This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image marks—logos and product packaging—it has long used the “imagination” test to effectively determine a word mark’s distinctiveness. Under this doctrine, immediately protectable word marks must operate in a metaphoric relationship to the words from which they are drawn (i.e., as figures of speech), requiring consumers to use their imagination to reach a conclusion as to the nature of the goods or services offered under the marks (e.g., “Klondike” for ice cream and “Greyhound” for a bus service). This makes sense because the first requirement of a valid trademark is that it be a “symbol”, and, as this Article shows, the basic characteristic of any symbol is its figurative quality. Research in conceptual metaphor theory finds, however, that metaphor is “primarily a matter of thought and action and only derivatively a matter of language.” Indeed, brands rely not just on verbal metaphor, but also on visual metaphor to differentiate themselves from competitors in the marketplace (e.g., McDonald’s “golden arches” and Starbucks’s “siren”). This Article thus claims that visual metaphor provides a figurative, cognition-based vehicle by which to extend trademark law’s imagination test of inherent distinctiveness from words to images. In doing so, it conceives of metaphorical association as a central consideration in analyzing the inherent distinctiveness of both word and image marks.

Market Segmentation vs. Subsidization: Clean Energy Credits and the Commerce Clause’s Economic Wisdom

Abstract: The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Many observers view the dormant Commerce Clause doctrine as a major threat to state-led efforts to combat climate change. Pushing back against widespread scholarly skepticism and calls for reform, this Article makes the case that state policymakers can use clean energy credits to simultaneously promote global environmental and local economic causes without running afoul of the dormant Commerce Clause. The latest wave of judicial decisions and scholarly criticism fail to recognize that not all energy credit programs are created equal. When states use energy credits as compliance instruments for their renewable portfolio standard—requirements that electric utilities source a percentage of their electricity sales from solar, wind, and other renewables—they partition power markets into renewable and non-renewable segments. Such segmentation policies cannot follow state or other geographically defined lines without violating the dormant Commerce Clause. A few pioneering states have begun to use energy credits as a vehicle for subsidies that operate independently of sourcing requirements. Unlike their market segmentation counterparts, these subsidization policies raise no concerns under the dormant Commerce Clause even when subsidies are available only to in-state firms. The Commerce Clause’s “preference” for subsidization over segmentation policies may seem counterintuitive. Both have, after all, the potential to disrupt interstate commerce and competition. Yet, two centuries of dormant Commerce Clause jurisprudence reflect a simple economic truth: segmentation prevents competition altogether, while subsidization can have a pro-competitive effect, such as when used to correct for carbon externalities and other market failures.

Choosing Medical Malpractice

Abstract: Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases—dealing with alternative therapies and Jehovah’s Witness blood refusals—lend support to the principle that patients who choose malpractice should be limited in their right

Unrealistic Expectations: The Federal Government’s Unachievable Mandate for State Cannabis Regulation

Abstract: The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of cannabis to the discretion of the states. That policy has recently shifted. In 2018, former U.S. Attorney General Jeff Sessions issued a new memorandum that rescinded guidance for states about how to structure the legalization of cannabis. The federal government’s current position is now ideologically aligned with that of states like Nebraska and Oklahoma. These states chose not to legalize cannabis and instead adhere to the Controlled Substances Act’s classification of cannabis as a Schedule I substance. In 2015, Nebraska and Oklahoma unsuccessfully petitioned the U.S. Supreme Court for permission to sue Colorado because its cannabis was leaking outside the state’s borders. Nebraska and Oklahoma insisted that Colorado’s legalization scheme compromises the drug policies of Nebraska, Oklahoma, and other neighboring states. Because the U.S. Department of Justice rescinded its previous guidance and Congress continues to stay silent regarding the tension between state laws, the judicial branch has a new opportunity to validate the concerns of Nebraska and Oklahoma. Therefore, it is even more important for states that legalize cannabis to prevent cannabis from leaking outside their borders. To prevent diversion of cannabis outside its state’s borders, the Washington State Legislature has created a regulatory licensing system. But despite Washington’s tightly regulated system, the federal government remains concerned about the legalized cannabis industry. Neither Washington nor Colorado has successfully prevented all cannabis diversion. The Cole Memorandum articulated an unrealistic standard for states’ reduction in diversion: total elimination. At the very least, Washington and Colorado’s regulatory procedures should be compared to those of other states without legalization. Ultimately, the federal government should conclusively determine whether states are able to legalize cannabis without the overhanging threat of federal intervention on the basis of diversion.

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty and the Right to Exclude

Abstract: Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would severely impact businesses dependent on beach-goers and would force local governments to expend limited funds to purchase beaches. This Article explores the possibility that courts and the public can put an end to the beach privatization movement simply by pointing to the common law of waterfront property. Historically, both courts and scholars have ignored the challenging title issues created by the common law and, in particular, by the rules governing boundary relocation after waves, currents, tides, and winds have changed the shape of the beach. These rules make it impossible to know the location of public-private beach boundaries in real time, that is, at the moment the landowner wishes to use the boundary to exclude others from her property. The consequence of real-time uncertainty is that, as a matter of law, landowners do not have an enforceable right to exclude. The absence of this property right not only undercuts constitutional claims premised on its existence, but also leads to the conclusion that the public has the right to use the entire beach. The vanished right to exclude does, however, leave a vacuum. Because trespass rules are different for structures, a landowner could still use the law to keep people out of a beach house. However, if the beach is public, the landowner would be left without the ability to prevent uses, like raucous parties or truck races, that impinge on her ability to enjoy her home. In order to mitigate this problem, the Article concludes by recommending that courts or legislatures create a more stable exclusion line at the top of the beach, and grant each landowner the right to prevent unreasonable public use of adjacent beach areas.

The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role

Abstract: Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role. We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position on the death penalty, their subject matter, and any references they made to the courts and Constitution. We also collected basic facts about the legislators, including about political party, race, education, and profession. We present our quantitative and qualitative findings here. Building upon these findings, we critically examine the Court’s use of legislation as an “objective indicator” of “evolving standards of decency.” We identify disconnects between legislative outcomes and community “standards of decency,” and we analyze legislators’ understanding of their constitutional significance and why their level of self-awareness may matter. Finally, we consider how legislative debates – rather than outcomes alone – might provide insights into contemporary values. In particular, the strong concern we observed over wrongful execution may support more robust Eighth Amendment protections for those claiming actual innocence.

The Legal Monopoly

Abstract: Lawyers enjoy an exclusive monopoly over their craft, one unlike any profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed. Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition and free markets for the public good. The legal profession, however, largely avoids antitrust scrutiny because the courts fall into a special exception known as the ‘state action doctrine,’ permitting anticompetitive actions by governmental bodies to engage in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying this exception—that the regulators are not themselves members of the regulated profession or industry—is not true for most lawyer regulation. Accordingly, this Article proposes applying federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase access to affordable legal services while preserving professionalism and client protection.

Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute

Abstract: This Comment examines the constitutionality of Washington’s cyberstalking statute, RCW 9.61.260, and its treatment of anonymous online speech. While the statute was drafted to ensure that women are free from domestic and gender-based violence, the statute as currently written and enforced infringes on the constitutionally protected right to free speech. There has only been one action, Moriwaki v. Rynearson,1 enforcing the provision of the statute related to anonymous speech. The court ultimately overturned the stalking protection order, which the plaintiff brought to halt political speech, on First Amendment grounds. While the Moriwaki court concluded that the stalking protection order there was an unconstitutional application of the law, RCW 9.61.260 is likely facially invalid under the First Amendment and incapable of withstanding strict scrutiny analysis. Faced with these issues, Washington has several options. Washington courts could narrowly construct RCW 9.61.260(1)(b). In so doing, courts could differentiate between anonymous speech that is ordinarily protected by the First Amendment and speech that is unprotected. The courts could also overturn the entire statute as unconstitutional on First Amendment grounds. This Comment argues that the legislature should return to the drawing board and redraft RCW 9.61.260 so that it can pass muster under the First Amendment. This Comment also proposes model legislation on which the Washington legislature could base a new law. Regardless of what Washington decides to do, the importance of preventing violence against women and preserving free speech online are too great to sacrifice to sloppy legislative drafting.

Courts as Gatekeepers: The Case for Minimal Deference to Agency Interpretations of the Common Law

Abstract: In Flytenow, Inc. v. FAA, the D.C. Circuit encountered an important, yet unresolved, question: how much deference should a court give an agency for its interpretation of a common-law term used in a statute or regulation? Traditionally, the Chevron and Auer deference doctrines provide agencies significant freedom in clarifying and interpreting statutes and regulations. The use of these doctrines, though, becomes problematic when applied to fact patterns where agencies interpret the meaning of common-law terms. This Comment argues that courts should not apply either Chevron or Auer deference doctrines in cases where an agency interprets a term that already has a well-settled meaning in common law. Chevron deference is inappropriate in this scenario because Chevron is only applicable when a statute is ambiguous. By choosing to use a common-law term in a statute, Congress removed any possible ambiguity as to the meaning of the term. Congress intends for common-law terms in statutes to align with their common-law definitions. Auer deference is also inappropriate in this scenario. An agency cannot use a common-law term in a regulation, subsequently interpret that term to mean something other than its well-established definition in the common law, and then receive judicial deference for that interpretation. Courts, not agencies, are the appropriate arbiters of the meaning of a common-law term. This Comment argues that Skidmore deference is the most appropriate standard of review for agency interpretations of common-law terms. Skidmore appropriately balances an agency’s right to interpret statutes and regulations and the judiciary’s responsibility to create, maintain, and uphold the common law.

Privacy in the Cloud: The Fourth Amendment Fog

Abstract: The Cloud has changed how individuals record, store, and aggregate their personal information. As technology’s capacity for holding an individual’s most intimate details and recording day-to-day experiences increases, Fourth Amendment privacy protections become less equipped to respond to technological advances. These advances allow private companies to store an immense amount of their consumers’ personal information, and government entities to obtain that information. In response, tech companies have begun refusing to comply with government demands for information collected and stored in their devices and in the Cloud, and are increasingly ending up in court, fighting orders to disclose consumer information. A dynamic tension has developed between the United States government’s desire and increased capacity to obtain information about consumers, and tech companies wanting to keep their consumers’ information private. The relevant statute, the Electronic Communications Privacy Act (ECPA), is not equipped to address these technological advances. The Supreme Court’s extensive Fourth Amendment jurisprudence and guidelines for addressing Fourth Amendment issues are similarly ill-suited to answer the novel and unique issues that accompany digital, remote storage of personal information. This Comment identifies the inadequacies of ECPA and the Fourth Amendment jurisprudence as they each apply to technological advances and the potential of Cloud data. It argues that Congress must revise the legislative scheme to adequately protect information stored in the Cloud, particularly addressing whether consumers have a right to know when their information is being accessed by the United States government. Further, it argues courts lack the tools to adequately amend, reframe, repeal, or apply ECPA, and thus should not be the primary body making decisions about the bounds of technologically based government collection under the Fourth Amendment. Alternatively, if the legislature does not act, courts will remain required to make findings related to whether the collection of information is a violation of the Fourth Amendment. Courts should, then, recognize that digital data deserves a fundamentally distinct analysis and discontinue the trend of finding attenuated connections between classic surveillance techniques and government surveillance using advanced technology.

Flight and Federalism: Federal Preemption of State and Local Drone Laws

Abstract: Small, unmanned aircraft referred to as “drones” are becoming increasingly common in the skies above the United States. Their increasing ubiquity has been driven by the wide variety of industries and tasks to which they can be applied, but it has also drawn the attention of government. Where Amazon.com sees the potential for packages delivered in thirty minutes or less, governments see crowded skies and clumsy pilots, to name only two potential risks associated with the widespread integration of drones into the national airspace. To that end, just as Amazon.com has ambitiously made use of the technology, state and local governments have begun to actively regulate drone use. The City of Chicago, for example, enacted an ordinance essentially banning drones within city limits. A major legal hurdle potentially stands in the way of those state and local efforts: The federal government has also regulated the commercial use of drones. The Federal Aviation Administration (FAA), guided by congressional direction to safely accelerate the process of integrating drones into the national airspace, promulgated comprehensive regulations governing commercial drone use. This overlap with state and local laws leads to issues of preemption. The doctrine of preemption reflects the principle that, in the United States, where a (valid, constitutional) federal law conflicts with a state or local law, the federal law supersedes its counterparts. This comment explores the issue of federal preemption of state and local drone laws. It concludes—based on a survey of preemption law, useful analogues from other areas of law, and first-of-its-kind drone preemption litigation—that restrictive drone laws like Chicago’s are preempted by the FAA regulations. Yet all is not lost for the state or local government wishing to have a say in matters of drone regulation. As this comment explains, there are strong arguments that state and local governments can regulate certain uses of drones, particularly in light of a doctrine known as the presumption against preemption. To that end, some state and local laws are clearly safe from preemption challenges. Others are just as clearly preempted. Finally, there is a category of state and local laws that fall somewhere in between those two extremes, for which the outcome of future preemption challenges is unclear.

Incentivized Informants, Brady, Ruiz, and Wrongful Imprisonment: Requiring Pre-Plea Disclosure of Material Exculpatory Evidence

Abstract: An incentivized informant scandal recently hit Orange County, California where county officials were caught lying, hiding, and not providing information about their informants. Concerned citizens, attorneys, and scholars are beginning to ask more questions as these stories receive increased nationwide attention: what should we do about false incentivized informant testimony? What can we do? Under Brady, Giglio, Ruiz, and their progeny, in criminal cases the government must turn over any material exculpatory evidence that it possesses, or that is available, when the defendant decides to go to trial. However, if the government does not know—or purports not to know—about material exculpatory information, such as an informant’s testimonial history, then there are often inadequate guidelines, rules, or incentives in place for the government to seek out and turn over this type of information. Moreover, because about 95% of state and federal cases end in plea deals, an informant’s credibility usually eludes public, judicial, and the accused’s scrutiny. This Comment offers solutions for legislatures, courts, and other government actors to use to help reduce wrongful imprisonment caused by false incentivized informant testimony. First, it outlines the types of information about incentivized informants that the government should seek out. Second, it offers several solutions and, working within United States v. Ruiz’s framework, this Comment suggests a legal standard for when the government must provide material information about an informant before a plea deal: when the government’s case primarily relies on informant testimony but material exculpatory evidence in its possession shows actual innocence.