Washington Law Review最新文献

{"title":"Regulating Real-World Surveillance","authors":"M. Kaminski","doi":"10.2139/ssrn.2681128","DOIUrl":"https://doi.org/10.2139/ssrn.2681128","url":null,"abstract":"A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state’s interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression. This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman’s framework of “boundary management” as a jumping-off point, I conceptualize privacy harm as interference in an individual’s ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts. Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies — from automated license plate readers (ALPRs) to robots to drones.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"90 1","pages":"1113"},"PeriodicalIF":1.3,"publicationDate":"2015-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68253795","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Enlightened Regulatory Capture","authors":"D. Thaw","doi":"10.2139/SSRN.2298205","DOIUrl":"https://doi.org/10.2139/SSRN.2298205","url":null,"abstract":"Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory committee comprising private interests and \"reduced-bias\" subject matter experts; 2) relaxed procedural constraints for committee action to prevent internal committee capture; 3) and opportunities for committee participation to be worthwhile for representatives of private parties beyond the mere opportunity to advance their own interests. This Article presents recommendations based on those characteristics as to how and when legislatures may endeavor to replicate this success in other industries to improve both the legitimacy and efficacy of the regulatory process.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"89 1","pages":"329"},"PeriodicalIF":1.3,"publicationDate":"2013-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2298205","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68077153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Miranda Warning","authors":"F. Schauer","doi":"10.4135/9781452229300.n1203","DOIUrl":"https://doi.org/10.4135/9781452229300.n1203","url":null,"abstract":"I. INTRODUCTION- ISOLATING MIRANDA'S IMPORTLargely as a consequence of American television and movies, Miranda v. Arizona1 may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops.2 And it is said that in countries where no such right actually exists, suspects have still been known, when arrested, to demand their Miranda rights.3Among the most interesting dimensions of Miranda's worldwide fame is that the case's prominence is largely a function of the warning itself.4 Television and motion pictures feature Miranda warnings not because of any suspected viewer interest in whether suspects actually have a right to remain silent,5 nor on account of the underlying substance of the right to have a lawyer during interrogation,6 nor because the general public is concerned about the right to appointed counsel for the indigent.7 None of this, to put it mildly, makes for good theater. What is good theater is the ritual of the arrest, and the Miranda warning, typically given in almost exactly the terms set forth in the Supreme Court's opinion, is a prominent feature of the ritual, even apart from the role that the warning is actually designed to serve.Professor Kamisar - with his characteristic attention to detail in support of spirited argument - provides an insightful judicial and political history of the retrenching that has marked much of Miranda's history since the Supreme Court's decision in 1966.8 In lamenting Miranda's erosion, I largely sympathize with Kamisar. But if there is a worry about the erosion of Miranda,9 it must be a worry not about the erosion of the right to remain silent itself, which existed independent of Miranda,10 nor about the right to counsel during interrogation, whose recognition and enforcement again preceded Miranda. u Instead, it must be a worry about the requirement that the police provide a warning in a certain way under certain conditions.12 Once we understand the import of various pre-Miranda decisions, we can appreciate that Miranda is about the warning itself, rather than about what the warning is a warning of. And when we understand Miranda in this way, we can focus on just what role the warning is designed to serve, and what the Court in Miranda thought it was doing in specifying almost exactly the form that the warning was to take. It is precisely this focus that will be the subject of my attention in this Response.In being about a warning, Miranda is about communication. Specifically, it is about two different dimensions of communication. One of ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"88 1","pages":"155"},"PeriodicalIF":1.3,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70579584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Modified Theory of the Law of Federal Courts: The Case of Arising under Jurisdiction","authors":"S. Grossi","doi":"10.2139/SSRN.2223523","DOIUrl":"https://doi.org/10.2139/SSRN.2223523","url":null,"abstract":"On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result. The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"88 1","pages":"961"},"PeriodicalIF":1.3,"publicationDate":"2013-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68005108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unpacking New Policing: Confessions of a Former Neighborhood District Attorney","authors":"Alafair S. Burke","doi":"10.2139/SSRN.436580","DOIUrl":"https://doi.org/10.2139/SSRN.436580","url":null,"abstract":"This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of \"new discretion\" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called \"communities\" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of self-governance underlying it as thinly disguised forms of majoritarianism. This Article has two primary goals. One goal is to use the author's experience as a community-based prosecutor to critique the new discretion scholars' reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"78 1","pages":"985"},"PeriodicalIF":1.3,"publicationDate":"2012-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68781435","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding the First Amendment","authors":"R. Post","doi":"10.4135/9781452229843.n2","DOIUrl":"https://doi.org/10.4135/9781452229843.n2","url":null,"abstract":"It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible. As I read the contributions to this symposium, I am put in mind of Oliver Wendell Holmes' famous injunction that \"[w]e must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.\"1 Although lawyers love words and language, \"the real justification of a rule of law,\" Holmes argued, \"is that it helps to bring about a social end which we desire.\"2 Holmes' advice was to pay close attention to whether our legal words in fact function to serve our social ends. Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. We suffer from First Amendment hypertrophy. Doctrine proliferates endlessly and meaninglessly. Around every corner is yet another confusing First Amendment \"test.\" We barely ever stop to ask what social ends are actually served by this barrage of inconsistent and abstract doctrine. We rarely take time to \"translate our [First Amendment] words into the facts for which they stand.\" The illuminating contribution of Bruce E.H. Johnson and Sarah K. Duran3 seems fortunately almost immune from this affliction. Strategic Lawsuits Against Public Participation (SLAPPs) are theoretically interesting precisely because they illustrate the disjunction between legal words and social ends. Plaintiffs bring SLAPP suits to enforce rights created by substantive legal doctrine. Substantive legal doctrine, especially when subject to constitutional standards that determine whether particular speech acts should receive First Amendment immunity, ought accurately to reflect our values. At first blush, therefore, SLAPP suits ought not to be problematic; defendants should prevail whenever constitutional standards provide that their speech deserves constitutional protection. This way of thinking, however, does not pay sufficient attention to how legal standards actually function. It fails to appreciate the transaction costs associated with litigation enforcing substantive doctrine. Defending even an unmeritorious suit can be costly and timeconsuming, and this expense will likely discourage otherwise protected participation in public discussion. The anti-SLAPP statutes Johnson and Duran discuss are designed to address and nullify such transaction costs. They not only shift attorneys' fees, but they also create pathways for the \"prompt and inexpensive\" resolution of SLAPP suits.4 Johnson and Duran invite us to theorize the actual behavioral effects of enforcing substantive First Amendment standards; they direct our attention to the reality that ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"87 1","pages":"549"},"PeriodicalIF":1.3,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70584819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Precaution, Science, and Learning While Doing in Natural Resource Management","authors":"H. Doremus","doi":"10.2139/SSRN.982203","DOIUrl":"https://doi.org/10.2139/SSRN.982203","url":null,"abstract":"Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decision-making. Too often, though, that challenge is considered only from an ex ante perspective, treating uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions which are iterative or similar can provide significant opportunities for learning. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decision-making, while minimizing the key weaknesses of each. After highlighting the benefits of a learning-while-doing approach for natural resource management, this paper briefly addresses how management agencies might be encouraged to adopt such an approach.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"82 1","pages":"547"},"PeriodicalIF":1.3,"publicationDate":"2007-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67923512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Jurisdiction and Merits","authors":"H. Wasserman","doi":"10.2139/SSRN.680565","DOIUrl":"https://doi.org/10.2139/SSRN.680565","url":null,"abstract":"Federal courts frequently make the mistake of treating factual elements of federal causes of action as going to the jurisdiction of the federal court; courts hold that the failure to prove some element requires dismissal of the civil action for lack of subject matter jurisdiction, rather than for failure to state a claim. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the \"affecting commerce\" element under the Sherman Act, and the state action requirement in constitutional actions. Characterizing a factual issue as going to jurisdiction (the power or authority of a court to hear and resolve the dispute between the parties) or substantive merits of the cause of action (going to who should win the case and why) affects the time and manner in which that issue is adjudicated and resolved within the litigation process. It also implicates the basic positivist imperative of treating distinct legal conceptions in a distinct manner. The solution is a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress' structural power and empowering the court to hear and resolve civil actions. All other facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights entitling her to relief. These facts, if disputed, await resolution at full trial on the merits.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"80 1","pages":"643"},"PeriodicalIF":1.3,"publicationDate":"2005-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67797530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dr. Jekyll's waiver of Mr. Hyde's right to refuse medical treatment: Washington's new law authorizing mental health care advance directives needs additional protection.","authors":"Nick Anderson","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>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.</p>","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"78 3","pages":"795-829"},"PeriodicalIF":1.3,"publicationDate":"2003-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24833861","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conundrums with penumbras: the right to privacy encompasses non-gamete providers who create preembryos with the intent to become parents.","authors":"Lainie M C Dillon","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>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.</p>","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"78 2","pages":"625-51"},"PeriodicalIF":1.3,"publicationDate":"2003-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24692854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}