Washington law review (Seattle, Wash.: 1962)

Publications
Heated debates often surround the introduction of an important new technology into society, as exemplified by current controversies surrounding human cloning and privacy protection on the Internet. Underlying these controversies are disruptions to central socio-legal values caused by these new technologies. Whether new technologies will eventually be accepted by society is often contingent on the reaction of the legal system. This mandates the formulation of a conceptual framework for understanding and structuring the way the law should react in cases surrounding the adoption of new technologies. By using the case study of artificial insemination this Article develops the tools for structuring the legal role in the acceptance process of new technologies. The three-century controversy surrounding the innovation of artificial insemination results from the innovations' disruption of the socio-legal value of the family. Artificial Insemination--although invented in the eighteenth-century--was rarely used until the 1930s, and only legalized in the 1960s. Its application to surrogacy and its use by unmarried women extends the controversy into the twenty-first century. The case study demonstrates the nature of the relationship among the technological, social and legal acceptance processes of new technologies, and analyzes the legal acceptance debate. The conceptual framework produced is useful in understanding and structuring the legal role in current debates surrounding the introduction and acceptance of new technologies.
 
The Americans with Disability Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected under the ADA, but that the analytic framework thus far employed by the courts is flawed. Asymptomatic HIV is a protected disability not because it is independently debilitating, but because the prejudices and fears of other may prevent HIV-infected persons from fully participating in society. The ADA was enacted to prevent exactly this type of discrimination.
 
Two sets of federal regulations, the "Common Rule" and Food and Drug Administration (FDA) regulations, govern human subject research that is either federally-funded or involves FDA regulated products. These regulations require, inter alia, that: (1) researchers obtain informed consent from human subjects, and (2) that an Institutional Review Board (IRB) independently review and approve the research protocol. Although the federal regulations do not provide an express cause of action against researchers, research subjects should be able to bring informed consent and malpractice actions against researchers by establishing a duty of care and standard of care. Researchers owe human subjects a duty of care analogous to the special relationship between physicians and patients. The federal regulations should provide the minimum standard of care for informed consent in human subject research, and complying with them should be a partial defense. In contrast, expert testimony should establish the standard of care for researcher malpractice, and IRB approval should be a partial defense.
 
Mental health care advance directives are gaining popularity nationwide. Following a growing trend, the Washington State Legislature has recently passed a law allowing patients to draft mental health care advance directives that could be irrevocable. Patients who sign an irrevocable directive essentially waive their fundamental right to refuse treatment in the future. The United States Supreme Court has held that waivers of fundamental rights must be made knowingly, voluntarily, and intelligently. However, as passed, Washington's new law contains insufficient safeguards to guarantee such a waiver. This Comment proposes that the Washington State Legislature amend this law the require two additional protections: a "rights advocate" to explain the potential waiver of rights, and a written warning in the advance directive form. These safeguards will help ensure that patients make knowing and intelligent waivers of their fundamental right to refuse treatment.
 
In State ex rel. T.B. v. CPC Fairfax Hospital, the Washington Supreme Court determined that minors who refuse to consent to inpatient mental health treatment, but are admitted by their parents nonetheless, have a statutory right to a prompt judicial review of the admission decision. This Comment argues that confining mature minors in mental hospitals against their will is a deprivation of both liberty and privacy interests and, as such, stringent due process protections are required, not only by Washington's current statutory scheme, but also by the U.S. and Washington Constitutions. It concludes by stating that the current statutory scheme meets the standards of both the substantive and procedural requirements of constitutional due process but that any statutory amendments that lower these standards are likely to fail to pass constitutional muster.
 
To date, five state high courts have resolved disputes over frozen preembryos. These disputes arose during divorce proceedings between couples who had previously used assisted reproduction and cryopreserved excess preembryos. In each case, one spouse wished to have the preembryos destroyed, while the other wanted to be able to use or donate them in the future. The parties in these cases invoked the constitutional right to privacy to argue for dispositional control over the preembryos; two of the five cases were resolved by relying on this right. The constitutional right to privacy protects intimate decisions involving procreation, marriage, and family life. However, when couples use donated sperm or ova to create preembryos, a unique circumstance arises: one spouse--the gamete provider--is genetically related to the preembryos and the other is not. If courts resolve frozen preembryo disputes that involve non-gamete providers based on the constitutional right to privacy, they should find that the constitutional right to privacy encompasses the interests of both gamete and non-gamete providers. Individuals who create preembryos with the intent to become a parent have made an intimate decision involving procreation, marriage, and family life that falls squarely within the the right to privacy. In such cases, the couple together made the decision to create a family through the use of assisted reproduction, and the preembryos would not exist but for that joint decision. Therefore, gamete and non-gamete providers should be afforded equal constitutional protection in disputes over frozen preembryos.
 
Unintended pregnancy is a serious problem in the United States. Most private insurance plans do not pay for contraception even though they pay for other prescription drugs and devices. This Article argues that this pattern constitutes sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. It discusses the reasons this issue has been neglected and suggests ways federal and state officials might remedy this common form of gender discrimination.
 
With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients.
 
Increasing drought, the spread of tropical disease, storm surges with rising duration and severity, and unprecedented human dislocation will reduce food security and access to fresh water, promote the spread of disease beyond normative ranges, and uproot millions of people who inhabit coastal regions. It is certain that the survival ability of many of the world’s indigenous and most disadvantaged peoples is at stake. And yet, the law is inadequately prepared to deal with these human impacts of climate change. The application of both codified and customary international and domestic law will be critical in addressing the massive human and humanitarian crises ignored by technical market solutions to climate change, moderate political reforms, and stalled treaty efforts. The legal community is in a unique position to spearhead innovative adaptations to climate change to account for the basic protection of fundamental human rights. Numerous scholars have suggested that human rights law may provide the most adequate and responsible remedy for climate-related impacts, and yet others debate its utility in the climate context.
 
The notion that "global judicial dialogue" is contributing to the globalization of constitutional law has attracted considerable scholarly attention. Numerous scholars have characterized the citation of foreign law by constitutional courts as a form of "dialogue" that both reflects and fosters the emergence of a common global enterprise of constitutional adjudication. It has also been claimed that an increasing amount of direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence.This Article challenges these claims on empirical grounds and offers an alternative account of the reasons for which constitutional courts engage in comparative analysis. The first part argues that it is both conceptually and factually inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of “dialogue.” The second part shows empirically that judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization, and that the actual impact of such interaction on the extent to which judges engage in comparativism is dwarfed by institutional and structural variables that lie largely beyond judicial control.The basis of our empirical argument concerning the actual effects of judicial interaction and reasons for judicial comparativism is a comparative case study of the Constitutional Court of the Republic of China (Taiwan), which constitutes a natural experiment in the capacity of a constitutional court to make use of foreign law even when it is largely deprived of contact with other courts. Taiwan’s precarious diplomatic situation ensures that the members of its Constitutional Court are effectively precluded from participating in international judicial gatherings or visits to foreign courts. Nevertheless, Taiwan’s Constitutional Court nearly always engages in extensive comparative constitutional analysis, either expressly or implicitly, when rendering its decisions. To explain how and why the Court makes use of foreign law notwithstanding its isolation, we combine statistical analysis of citations to foreign law in the Court’s published opinions with in-depth interviews of numerous current and former members of the Court and their clerks.We conclude that "global judicial dialogue" plays a much smaller role in shaping a court's utilization of foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and (b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in foreign law. Our conclusion that institutional factors outweigh judicial dialogue in determining a court's reliance on foreign law helps to explain the behavior of not only the Taiwanese Constitutional Court, but also the United States Supreme Court. Notwithstanding the fact that American justices enjoy extensive, if not unrivaled, opportunities to interact with judges from other countries, comparative analysis plays a less frequent role in their own constitutional jurisprudence than in that of their foreign counterparts. Openness on the part of individual justices to foreign law ultimately cannot compensate for the fact that the hiring and instructional practices of American law schools neither demand nor reward the possession of foreign legal expertise.Our research also demonstrates that judicial opinions are a highly misleading source of data about judicial usage of foreign law. As our interviews with members of the Taiwanese Constitutional Court reveal, the frequency with which a court cites foreign law in its opinions does not necessarily reflect the extent to which it actually considers foreign law. Analysis of judicial opinions alone may lead scholars to conclude mistakenly that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine.
 
Article II, section 19 of the Washington State Constitution provides that "[n]o bill shall embrace more than one subject, and that shall be expressed in the title." This provision contains two rules. First, an act violates the single-subject rule if it has a general title and its provisions lack rational unity, or if it has a restrictive title and contains provisions not fairly within the scope of that title. Second, an act violates the subject-in-title rule if the plain language of its title does not indicate the scope and purpose of the bill to an inquiring mind, or if it does not give notice to parties whose rights and liabilities are affected by the legislation. During the 2005 legislative session, the Washington State Legislature enacted Engrossed Substitute Senate Bill 5395, "AN ACT Relating to requiring electronic voting devices to produce paper records." This Comment argues that ESSB 5395 violates both the single-subject and subject-in-title requirements of Article II, section 19. The bill violates the single-subject rule because section 5 of the act, which requires county audits of electronic voting devices, is not fairly within the scope of its restrictive title. The bill also violates the subject-in-title rule because the plain language of its title does not provide adequate notice of the legislation's scope and purpose, specifically the county audit requirement.
 
This note considers the Supreme Court's treatment of New York State's tuition reimbursement and tax exemption provisions that were expected to equalize educational choice. Submits that the decision is unwarranted application of the constitutional prohibition against establishment of religion and discusses alternatives open to state legislators. (JT)
 
Although abortion jurisprudence under Casey condones State efforts to persuade a woman to forego an abortion in favor of childbirth, the opinion's "truthful and not misleading" language can be read more broadly than it traditionally has. Specifically, even a truthful message may mislead when it inappropriately takes advantage of emotional influence to bias an individual's decision away from the decision that would be made in a non-emotional, fully informed, state. Drawing on the insights of empirical research in the social sciences, I suggest that the sort of emotional information that many States now provide in their "informed consent" statutes can lead to such inappropriate emotional influence, and thus should be examined more closely than heretofore. This broader reading, taking into account empirical research that gives a better idea of individual decision-making, suggests that States' informed consent statutes have the potential to be an impermissible burden on the exercise of a woman's autonomous decision-making about an abortion precisely because they are calculated to bias a woman's free choice, not inform it.
 
The absurd results doctrine of statutory interpretation allows courts to depart from clear legislative text when a literal reading would be “absurd.” Traditionally, courts defined an absurd result as one that offends fundamental social values. Over time, however, courts have expanded the concept of legal absurdity to include outcomes that do not violate moral principles, but instead present regulatory burdens deemed too onerous to reflect congressional intent. In June 2010, the U.S. Environmental Protection Agency (EPA) invoked this expansive reading of the absurd results doctrine to support a regulation known as the “Tailoring Rule,” which the agency promulgated as part of its first effort to regulate climate-changing greenhouse gases under the Clean Air Act (CAA). The CAA explicitly states that facilities emitting any regulated air pollutant in excess of specific quantities must obtain a permit from the EPA or authorized state agencies. The Tailoring Rule, however, raises the statutory permitting threshold for facilities that emit greenhouse gases, on the ground that applying the existing thresholds to greenhouse gas emitters would be so burdensome for the agency and industry as to constitute an absurd result. While the Tailoring Rule illustrates the practical expediency of an expansive absurd results doctrine, it also demonstrates the doctrine’s inconsistency with the constitutional separation of powers, administrative law principles, and the mandate of federal environmental statutes. Focusing on the example of environmental law and the Tailoring Rule in particular, this Comment argues that courts should restrict the absurd results doctrine to its traditional scope and reject arguments that a certain degree of congressionally mandated regulation is absurd as a matter of law.
 
In this essay, I consider the issue of what resources the state is morally obligated to provide to ensure citizen access to the civil justice system. I begin by describing the general problem of morally legitimate authority and how it bears on what I will call the problem of access as it pertains to the civil justice system. I then identify three different general approaches to the general problem of morally legitimate authority and argue that none of these approaches warrants thinking that the state is morally obligated to provide each citizen with perfectly equal access to the civil justice system. I conclude by arguing that the three approaches to legitimacy converge on two principles: one that defines an affirmative obligation (i.e., the Reasonable Access Principle) to provide to each citizen what is minimally necessary to develop and defend a plausible legal position and one that defines a negative obligation (i.e., the Equality Principle) to refrain from restricting access to the civil justice system for reasons that deny the equality of every moral person.
 
The Stolen Valor Act (SVA or “the Act”) was enacted to protect against “fraudulent claims” of receipt of military honors or decorations. It does so by criminalizing false verbal or written claims regarding such awards. However, the Act failed to include all of the elements of an anti-fraud measure required by the First Amendment. Most critically, the SVA fails to require actual reliance on the part of the defrauded. Although fraud is generally not protected by the First Amendment, courts cannot construe the SVA as an anti-fraud measure if the statute does not require actual reliance. Therefore, the SVA as written has been subject to the higher strict scrutiny standard when challenged on First Amendment grounds. However, this oversight is easily remedied. Congress should amend the SVA to require that targets of the fraudulent claim alter their behavior based upon the false representation of military honors without necessarily suffering an economic injury. By modifying the SVA in this limited fashion, Congress will enable courts to construe the SVA as an anti-fraud measure while protecting against harm caused by false claims of military honors.
 
The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapattah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question once again. In light of these recent events and their common theme, this Article has two goals. First, it argues that CAFA - like its older cousin the supplemental jurisdiction statute - contains a fundamental disconnect between the legislative history and the statutory text. While CAFA's legislative history indicated that Congress meant to expand federal jurisdiction only to certain large class actions with interstate dimensions, the unambiguous text of CAFA authorizes removal of virtually every state court class action to federal court. This conflict threatens to create the same level of judicial and academic disagreement that plagued the supplemental jurisdiction statute over the last decade-and-a-half. Second, this Article examines Justice Anthony Kennedy's majority decision in Allapattah to divine its lessons for interpreting CAFA. Allapattah sent mixed messages, however. The Court's language in Allapattah imparted an unmistakable endorsement of textualism - jurisdictional statutes should be read no more narrowly or broadly than the text provides. But the Court's ultimate conclusion compromised strict fidelity to the text in order to avoid expanding jurisdiction far beyond what Congress apparently intended. The Court chose a compromise interpretation that expanded federal jurisdiction farther than the legislative history anticipated but not as far as the plain meaning of the statutory text would require. Thus, federal courts interpreting CAFA face a dilemma: follow Allapattah's explicit lesson and construe CAFA according to its text, or follow Allapattah's implicit lesson and strike a compromise between the legislative history and the statutory text. For courts following the latter approach, a compromise reading of CAFA may be available. This reading would eliminate certain requirements that had impeded the removal of class actions in the past, but it would not create an independent basis for removing all state court class actions; rather, a basis for removal must exist elsewhere in federal law.
 
Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes-Oxley Act has as its major goal the prevention of corporate corruption. This Article analyzes the impact of Section 806, the portion of the Sarbanes-Oxley Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes-Oxley has on existing employment law. In addition, this Article contributes to the debate over the general effectiveness of the Sarbanes-Oxley Act, a topic of contention among both academics and press commentators. This Article argues that the Act does not go far enough to protect whistleblowers because employers do not need to specify procedures for acting upon tips that financial fraud is occurring. Also, employers most likely can send whistleblowing claims to arbitration, a forum that weakens the remedies available to employees. Finally, this Article provides a comprehensive survey of state whistleblowing laws and suggests changes to federal and state law to fill the gaps that remain after Sarbanes-Oxley.
 
The Indian Civil Rights Act (ICRA or 'the Act') of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; declining jurisdiction protects tribes’ sovereign authority to determine their own membership; and the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a uniform rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems.
 
A ruling preventing state agencies, such as the community college in question, from contracting outside the institution for services that school civil service employees can and customarily do provide is criticized. (Journal availability: Washington Law Review, 1100 N.E. Campus Parkway, University of Washington, Condon Hall, JB-20, Seattle, WA 98105, $4.00.) (MSE)
 
Administrative law doctrines for reviewing agency rulemaking, such as the Supreme Court’s dicta in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. and the D.C. Circuit’s hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration. This Article argues that the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc. implicitly eliminated State Farm’s dicta and the D.C. Circuit’s hard look doctrine. In place of these paternalistic doctrines, courts should establish a doctrine for reviewing agency rulemaking that examines only the agency’s purpose in regulating and the means used by the agency to achieve that purpose—instead of giving courts leeway to impose additional procedures on agencies and to nitpick rulemaking records. Constitutional doctrines for reviewing legislation already focus on a government actor’s purpose and means, so these doctrines should also be used for reviewing agency rules, which are legislative-like pronouncements that are binding with the force of law. Ultimately, this Article proposes that courts should review agency rulemaking under the standard for reviewing legislation known as “rational basis with bite.” Rational basis with bite would require the agency, at the time it promulgates a rule, to articulate its actual statutory purpose in promulgating the rule and explain how the rule is rationally related to that purpose. Not only would rational basis with bite significantly limit the ability of judges to invalidate agency rules based on policy disagreements, but the standard fits well with the Supreme Court’s precedents on APA arbitrary and capricious review.
 
This paper makes two primary arguments. First, that the increased resort to bilateral and regional trade agreements has taken a neo-liberal turn. As such bilateral and regional trade agreements are now a primary means through which greater investor protections; commodification of social services, guaranteed rights of investor access to investment opportunities, privatization of public service goods; and generally and the diminution of sovereign control are being realized. These trade agreements make the foregoing goals possible not just in developing countries, but in industrialized economies as well. I show that these agreements provide business interests with opportunities to exercise concerted pressure to influence the adoption of neo-liberal economic policies in both developed economies and developing economies. Second, this article argues that bilateralism and regionalism in trade are contemporary fads that are spreading neo-liberal economic ideals in the periphery of the global trading system. In other words, emulation by small developing countries of neo-liberal economic policies in developed countries is a significant driver of economic reform. Developing countries adopt neo-liberalism not simply because it is imposed as many accounts suggest. Rather, neo-liberalism is also voluntarily adopted for a variety of reasons: (i) because there has been a convergence in the thinking of policy makers and academic thinkers in developing and developed countries in part as a result of socialization through education or professional associations and contacts; (ii) as a result of persuasion that neo-liberal reforms are important preconditions for goals such as increased economic growth or the efficiency of public sector institutions, developing country officials have adopted them; (iii) public officials in developing countries are strategically adopting neo-liberal reforms since they are regarded as a signaling device that their country is ‘safe’ for investment or because bilateral and regional trade agreements come with budget support that is otherwise unavailable to these developing country officials in their home country; (iv) officials in developing countries are passive imitators who in the absence of solid evidence as to the efficacy of neo-liberal ideals on their own account or in relation to alternative reform ideas are rationally bounded actors who find it impractical to assess the efficacy of neo-liberal ideals or their alternatives. In short, this paper argues that the increased number of regional and bilateral trade agreements represents an important opportunity for the further diffusion of neo-liberal economic ideals, an insight often missing in leading accounts that have emphasized how this trend conforms or departs from the norms of the World Trade Organization. This paper does so using a constructivist account of the circumstances under which neo-liberalism arises in the turn towards regionalism and bilateralism. It shows how ideas about market governance and the institutions and experts that generate and perpetuate these ideas impose an incentive structure within which choices in favor of neo-liberalism are more than less likely to be exercised.
 
Since 2005, take-home asbestos exposure claims have constituted a new wave of asbestos litigation. In contrast to employees exposed to asbestos at a worksite, take-home exposure occurred among those affected by employees who inadvertently carried asbestos home on their clothing or their tools. While some jurisdictions have rejected these claims on the basis that the defendant did not owe a legal duty to the plaintiff, the Washington Court of Appeals recently recognized the potential validity of a household member’s claim for relief for the harm he or she suffered as a result of asbestos exposure. In doing so, the court applied an ordinary negligence test and examined the foreseeability of the harm to the plaintiff as the primary step in determining whether the defendant owed the plaintiff a legal duty. Although the Washington State Supreme Court has no precedent governing take-home asbestos exposure claims specifically, the courts of appeals’ reasoning comports with Washington negligence law. Accordingly, Washington courts should apply this ordinary negligence test in future take-home asbestos exposure cases.
 
In the international negotiations aimed at reaching an agreement to reduce the greenhouse - gas emissions that are driving global warming, the developed and developing countries are talking past each other. The developed world is speaking the language of efficiency, while the developing world speaks the language of justice. Economic theory and the concept of efficiency are fine for answering the question of who should reduce, but that is not the contentious issue. When it comes to the hotly contested issue of who should pay, economic theory offers no guidance, and the developing world is right to insist that we look to principles of justice. This Article considers three kinds of approaches to the who-should-pay question: 1) those that take status quo emissions levels as their starting point; 2) those that allocate emissions rights on a per capita basis; and 3) those that allocate the costs of emissions reductions on the basis of ability to pay. The Article then considers three possible models for conceptualizing the who-should-pay question in light of widely shared principles of justice: 1) the property model views it as a problem of dividing and allocating a commonly held property right - the capacity of the atmosphere to absorb greenhouse gases; 2) the tort model views it as a question of how to allocate costs when one party causes injury to another and 3) the tax model views it as a situation in which a group of persons or entities are all engaged in a common enterprise to promote the common good and must allocate the costs of that enterprise. The Article evaluates each of the three approaches to the who-should-pay question under each of these three models of justice, and concludes that the per capita approach is the clear winner. It comports best with the property and tort models of justice, and with respect to the tax model, it comes in a close second. A rough calculation reveals that, if a per capita approach is indeed the most just, then the recent proposals by developing countries that the developed countries each contribute 1% of their gross domestic product to adaptation and mitigation efforts in the developing world is quite reasonable, perhaps even a bargain. Finally, the Article considers and responds to several counterarguments against the per capita approach.
 
In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests that researchers at state universities should be entitled to assert qualified immunity when they are accused of patent or copyright infringement, and thereby potentially avoid liability. It then provides a framework for applying this qualified immunity, proposing that courts should grant researchers at state universities qualified immunity when their conduct does not violate a clearly established right of the patentee or copyright holder. Whether such a violation has occurred should be analyzed in much the same way that willful infringement is analyzed. Going beyond existing law, this article proposes legislation granting researchers at state universities absolute immunity from liability for patent and copyright infringement. Such a grant of immunity would create in state universities a space for exploring and developing new innovations that would otherwise be blocked by the presence of intellectual property protection - a particularly acute problem in some areas, where a veritable "patent thicket" would necessitate that any researcher desiring to work in those areas license a prohibitive number of patents from a variety of patentees. Thus freed from concerns over patent infringement, researchers at state universities could continue their work for the benefit of the citizens of their states and other states, in keeping with the mission of state universities.
 
Ronald Collins & David Skover’s piece, The Guardians of Knowledge in the Modern State: Post’s Republic and the First Amendment, is the introductory essay to a symposium volume, published by the University of Washington Law Review, examining Yale Law School Dean Robert Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale, 2012). Post’s book posits a way to navigate the First Amendment’s value of safeguarding public opinion from governmental censorship while at the same time preserving a safe haven for expert knowledge within the academy. Collins and Skover describe and examine Dean Post’s dichotomy between the realm of “democratic legitimation,” where the First Amendment should offer its strongest protections, and the realm of “democratic competence,” where the First Amendment should yield to the findings of knowledgeable experts. Questioning the theoretical premises of Dean Post’s book, they argue that a “harm principle” may better explain much of the First Amendment doctrine that Post attempts to reconcile with his dichotomy. Moreover, they challenge Post’s thesis at a more operational level: if his theory is to have any meaningful staying power, it cannot be oblivious to the obvious – that the academic centers of knowledge are increasingly commercialized. Colleges and universities, once seen as bastions of learning serving the common good, have increasingly transformed into citadels of industry serving the cause of private profit. In this commercialized environment, medical schools produce bio-medical studies unduly influenced by industry; brilliant researchers earn lucrative consulting fees; and distinguished professors take title to industry-endowed chairs. In the face of this, ironically Robert Post’s First Amendment theory may unwittingly protect the research produced by for-profit experts, even though pecuniary influences corrupt the integrity of the centers of knowledge.
 
This Article is part of a symposium on Robert Post's valuable new book, Democracy, Expertise, and Academic Freedom: A Jurisprudence for the Modern State (2012). It uses the occasion to observe that in recent years, a number of leading First Amendment scholars have focused on the role of truth, falsity, and the production of knowledge in the First Amendment and public discourse. The same questions are also raised by several recent cases, including the Stolen Valor Act case, United States v. Alvarez. Taken together, they suggest a strong recent interest in the epistemological questions raised by First Amendment law and theory. Both the conclusions these scholars have drawn, and the very fact that they have converged on these questions, are worthy of consolidation and examination.I argue in this Article that the First Amendment presents an ineluctable "epistemological problem:" it raises difficult questions about the status of true and false speech, who should make such determinations and how, and the relationship between the First Amendment and the institutions that produce knowledge and play an infrastructural role in public discourse. First Amendment doctrine alternates between a broad protectiveness of false as well as true speech and a relative lack of protection or concern for truth or falsity as such. First Amendment theory has largely moved away from epistemic justifications for free speech and toward other justifications, such as those based on democratic self-government, autonomy, or distrust of government; but that movement leaves underlying epistemological questions unanswered. Constitutional doctrines such as those protecting academic freedom recognize the important role played by some institutions in public discourse and knowledge production, but they are both undertheorized and in some tension with broader principles of First Amendment law. The Article does three things. First, it collects and examines the recent treatments of scholars and judges who have examined the First Amendment's epistemological problem. Second, discusses the relationship between the First Amendment and the production of knowledge, especially by specialized institutions that play a prominent infrastructural role in public discourse, such as the university. It examines and praises Post's treatment of "democratic competence," "democratic legitimation," and knowledge institutions, but argues that we might avoid some tensions and enhance the production of knowledge within public discourse by taking a more direct institutionally oriented approach to these questions. Finally, it seeks to advance the discussion by asking why the First Amendment's epistemological problem has become a subject of recent and intense discussion, and why the institutional turn has become increasingly popular in an age of relative distrust of institutions in general.
 
Forty years ago, at a time when the media was experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical data is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change - albeit on a different trajectory - as readership and public reputation plummet. As the dialogue on this complicated topic once again reaches full volume, intensified by a series of hotly contested federal reporter’s privilege bills, the question of the appropriate legal rule again is inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media. This 'law-in-action' article aims to offer the legislators and policymakers of today what Blasi offered them four decades ago. It reports the results of a large-scale empirical study, presenting both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and local television news operations, and re-explores the questions of changing legal climate and media awareness of legal protection. The article concludes that media subpoenas have a substantial impact on newsgathering, warranting federal legislative attention. But it also concludes that the traditional press is ill-informed of the contours of its own legal protection, which may compound the difficulties the media experiences in this area.
 
Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination - an approach for which activists fought for twenty years prior to the enactment of the ADA - may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons. I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike. Interpreting Martha Fineman's theory of vulnerability and applying it for the first time within disability legal studies, I argue that vulnerability to disability and the vulnerabilities disabled individuals experience more acutely than those without disability are both universal and constant. The shared vulnerabilities of disabled and nondisabled individuals suggest the need to restructure completely social institutions to respond to barriers to work and social participation. For practical reasons, I advocate a compromise focused on disabled persons with regard to accommodation for employment and some aspects of social participation: a move away from the standard antidiscrimination approach, which fragments protections, to an approach that treats vulnerability as extending across environments and enables a broader provision of material supports for disabled individuals. In particular, the reasonable accommodation mandate should be expanded with governmental supports to allow disabled workers accommodations both inside and outside the workplace that facilitate their employment. Additionally, a dialogue between employers and employees about accommodating disability should be mandatory, and employees should be entitled to reasonable accommodation that supports their preferred methods of functioning. Given the current legal structures in place, however, recognizing vulnerability to illness as universal suggests the need for universal health care, or treating access to health care as a matter of social welfare rather than disability law.
 
This article, published in 1995, describes antitrust law’s framework for proving individual harm as the basis for an award of treble damages. Antitrust damages are based on a standard of net individual harm, adapted (by the antitrust injury and Illinois Brick doctrines) to conform to a larger principle of net social harm. Net individual harm, so qualified, is measured by the difference between the plaintiff’s actual condition and its “but-for condition,” that is, the condition the plaintiff would have been in but for the defendants’ anticompetitive conduct. The plaintiff must project its but-for condition from a reasonably comparable base experience. In doing so, it must offer a theoretical model and an evidentiary foundation sufficient to isolate the defendant’s illegal conduct as the cause of the difference between the actual and but-for conditions.
 
The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts have therefore applied varying exceptions or extensions to those requirements in an effort to encompass such privilege orders within them. This Article proposes a two-tiered system of review to remedy the harm caused by erroneous disclosure orders without stretching the current system of interlocutory review so far that the benefits of the final judgment rule vanish. The Article recommends that review begin in the district court with a motion to certify a discretionary appeal under 28 U.S.C. 1292(b), which requires a district court to certify an order that "involves a controlling question of law as to which there is substantial ground for difference of opinion," if "an immediate appeal from the order may materially advance the ultimate termination of the litigation." If a district court refuses to certify an order even though it clearly satisfies the requirements of 1292(b), then the appellate court should exercise its mandamus power to review the case. This two-tiered system of review would provide a consistent mechanism by which the most difficult and important privilege orders could be immediately reviewed, but would not impose too heavy a burden on the already-crowded appellate dockets.
 
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Frank Pasquale
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Aya Gruber
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