http://lawdev.law.washington.edu/wlr/Recent articles from the Washington Law Reviewen-UShttp://lawdev.law.washington.edu/images/lawLogoprt.gifhttp://lawdev.law.washington.edu/WLR/http://lawdev.law.washington.edu/WLR/Issues/Articles/1295/4Mark Tyson The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about “legislative acts” or having “legislative acts” used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a“legislative act” have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in an effort to prevent disclosure of documentary material. Instead of resorting to the traditional “legislative acts”test, courts should permit disclosure of written materials subject to the rules of discovery. Courts should be vigilant in reviewing discovery requests to ensure that plaintiffs are not unduly burdening members of Congress, thereby unnecessarily distracting them from their work. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/1251/4Kevin Naud, Jr. In State v. Eriksen, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court’s reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute as a limit on tribal authority to enforce laws and incorrectly dismissed the validity of cross-jurisdictional fresh pursuit of a non-felon. Eriksen guts the ability of tribes to enforce their sovereign right to uphold the law and safety on the reservation. To reinforce tribal power, Congress should enact legislation similar to the “Duro Fix,” a statutory recognition of inherent sovereign authority. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/1203/4Jeanine Blackett Lutzenhiser As this issue went to press, the Washington State Supreme Court decided four cases involving the right to public trial and the open administration of justice: In re Personal Restraint of Morris, State v. Sublett, State v. Paumier, and State v. Wise. The fourteen separate opinions in these cases demonstrate that the Court is far from agreement, and that important questions regarding Washington’s open courts jurisprudence remain unanswered. In short, the decisions do not appear to definitively resolve the dilemmas that this Comment attempts to address and that trial courts still face. A response to these decisions in the June 2013 issue of this publication will more closely examine their impact on Washington open courts jurisprudence. Abstract: Fundamental to the American system of justice is the right to a public trial and a general presumption of openness in judicial proceedings. These values are reflected in the First and Sixth Amendments of the United States Constitution and in many state constitutions. Washington is one of a number of states whose constitution (unlike the U.S. Constitution) also explicitly guarantees the open administration of justice. Constitutional dilemmas arise when a party requests the closure of a courtroom or the sealing of documents. These requests force courts to harmonize values of open justice with other compellinginterests. U.S. Supreme Court decisions such as Richmond Newspapers, Inc. v. Virginia and Waller v. Georgia have provided guidance to states developing their own public trial jurisprudence. The Washington State Supreme Court used U.S. Supreme Court decisions to develop its own five-factor test for determining the constitutionality of closed proceedings in the criminal context in State v. Bone-Club. Since Bone-Club, however, many trial courts have failed to apply the factors articulated by the Court. This has resulted in many costly, highprofile reversals of convictions because of public trial violations. What could make the Bone-Club factors clearer and more practical for trial courts? This Comment argues that the Bone-Club test should become an “open courts checklist” that begins with a threshold question: Is the proposed action in fact a closure? If the answer is no, the rights to public access and public trial are not implicated. If the answer is yes, there remain six questions a trial court must ask on the record to evaluate the constitutionality of a proposed closure. Checklists have been employed in the fields of aviation and medicine for decades to ensure safety and procedural integrity. In a judicial context, an open courts checklist can provide clear, workable standards that will assist trial courts and leave a clear record for review. The goal is both improved judicial economy and the safeguarding of these essential constitutional rights and values. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/1133/4Rebecca Tsosie This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of“epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly “neutral,” but it may still be utilized to the disadvantage of indigenous peoples. Drawing on international human rights law, Professor Tsosie demonstrates how public policy could shift from treating indigenous peoples as “objects” of scientific discovery to working respectfully with indigenous governments as equal participants in the creation of public policy. By incorporating human rights standards and honoring indigenous self-determination, domestic public policy can more equitably respond to indigenous peoples’ distinctive experience. Similarly, scientists and scientific organizations can incorporate human rights standards into their disciplinary methods andprofessional codes of ethics as they respond to the ethical and legal implications of their work. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/1041/4Sarah Krakoff Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. laws and policies. First, the Article traces the evolution of tribes from pre-contact independent sovereigns to their current status as “federally recognized tribes.” This history reveals that the federal government’s objective of minimizing the tribal land base entailed a racial logic that was reflected in decisions about when and how to recognize tribal status. The logic was that of elimination: Indian people had to disappear in order to free territory for non-Indian settlement. The Article then examines two very distinct tribal places, the Colorado River Indian Tribes’ (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains. The United States’ policies had different effects on the CRIT (where four distinct ethnic andlinguistic groups were consolidated into one tribe) and the Sioux (where related ethnic and linguistic groups were scattered apart), but the causal structures were the same. Indian people stood in the way of non-Indian possession of land and resources, and federal policies defined tribes and their land base with the goal of shrinking both. Despite these goals, the CRIT and Sioux Tribes have exercised their powers of self-governance and created homelands that foster cultural survival for their people. Like other federally recognized tribes, they have used the given legal structure to perpetuate their own forms of indigenous governance, notwithstanding the law’s darker origins. The legal histories of CRIT and the Sioux Tribes reveal that unraveling the logic of racism in American Indian law has less to do with tinkering with current equal protection doctrine than it does with recognizing the workings of power, politics, and law in the context of the United States’ unique brand of settler colonialism. The way to counter much of the prior racial discrimination against American Indians is to support laws that perpetuate the sovereign political status of tribes, rather than to dismantle tribes by subjecting them to judicial scrutiny in a futile attempt to disentangle the racial from the political. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/965/4Yale Kamisar Yale Kamisar, Clarence Darrow Distinguished University Professor Emeritus of Law, University of Michigan Professor of Law Emeritus, University of San Diego. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/915/4Robert T. Anderson This Article canvasses the jurisdictional rules applicable in American Indian tribal territories—“Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed. The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege thatthe Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments. S. COMM. ON THE INTERIOR & INSULAR AFFAIRS, 94TH CONG., BACKGROUND REP. ON PUBLIC LAW 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman). Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The modern Indian self-determination policy is not advanced by adherence to termination era experiments like Public Law 280. The Article concludes that federal legislation should provide for a tribally-driven retrocession model and makes proposals to that end. Thu, 20 Dec 2012 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/281/1Ross Siler The NFL and NBA lockouts of 2011 challenged the limits of the balance courts have struck between collective bargaining protections and antitrust liability. In each lockout, the respective players’ union argued that the bargaining relationship with team owners ended once the union disclaimed interest in continuing as its players’ bargaining representative. The players further argued that with the bargaining relationship terminated, the nonstatutory labor exemption no longer shielded owners from antitrust liability for their cooperative agreements and activity. Ultimately, both lockouts settled without courts deciding whether a disclaimer of representation marks what the Supreme Court has described as an “extreme outer boundary” that is “sufficiently distant in time and in circumstances” from the bargaining process such that the nonstatutory labor exemption might no longer protect employers from antitrust liability. This Comment argues that courts should be wary of recognizing disclaimers as terminating the exemption in the wake of the 2011 lockouts. Instead, courts should extend the exemption for a reasonable period following disclaimer. By doing so, courts would reduce the possibility of introducing instability and uncertainty in the bargaining process, which the Court has recognized in the past as a significant concern. Such an extension also would help separate deserving antitrust claims from mere bargaining tactics while allowing the economic pressures facing both sides to shape their ultimate agreement. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/245/1Kayla Feld This Comment focuses on the debate surrounding the definition of an “instrumentality” within the Foreign Corrupt Practice Act’s (FCPA) “foreign official” provision. The FCPA prohibits bribery of “foreign officials” but provides little guidance as to the types of entities included within the meaning of an “instrumentality.” The Department of Justice construes this term broadly and therefore can aggressively prosecute alleged corruption. This Comment argues that courts should provide guidance on the definition of a “foreign official” within the meaning of the FCPA by applying principles of control drawn from corporate law. Such guidance would accomplish three important tasks. First, it would help corporations comply with the FCPA. Second, it would align with the approach used by foreign jurisdictions designated in treaty obligations. Finally, it could help achieve Congress’s original objectives in enacting the legislation: namely, to prevent corruption of foreign public officials as well as the negative consequences for foreign policy. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/185/1Kristin N. Johnson This Article deconstructs the theory of self-regulation that characterizes financial markets regulation. After reviewing the benefits and weaknesses of the self-regulatory approach, this Article explores the emerging New Governance paradigm. Drawing from the New Governance literature and internal corporate governance reforms employed by venture capital and private equity firms, regulators, and federal prosecutors, this Article proposes that regulators appoint an independent, third party board observer or monitor to CCPs’ board of directors. The appointed board observer or monitor will endeavor to ensure the safety and soundness of CCPs’ risk-management decisions and that their risk-taking decisions are consistent with the public’s interest in mitigating systemic risk concerns. Abstract: Payment, clearing, and settlement systems constitute a central component in the infrastructure of financial markets. These businesses provide channels for executing the largest and smallest commercial transactions in local, national, and international financial markets. Notwithstanding this significant role, there is a dearth of legal scholarship exploring central clearing counterparties (CCPs) and their contributions to the regulation of financial markets. To address this gap in the literature, this Article sketches the contours of the theory that frames regulation within financial institutions and across financial markets, examines the merits of implementing CCPs, and explores the role of CCPs as primary regulators within financial markets. Applying these theoretical constructs to a practical issue, this Article analyzes Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the statute's introduction of mandatory clearing requirements in the over-the-counter (OTC) derivatives market. This Article advances several arguments that explore the merits of Title VII’s clearing mandate. First, this Article posits that introducing clearing requirements and authorizing only a handful of CCPs to execute clearing obligations concentrates systemic risk concerns. Title VII’s clearing mandate endows CCPs with the authority to serve as gatekeepers. As a result, these institutions become critical, first-line-of-defense regulators, managing risk within the OTC derivatives markets. Second, weak internal governance policies at CCPs raise noteworthy systemic risk concerns. CCP boards of directors face persistent and pernicious conflicts of interest that impede objective risk oversight, and thus may fail to adopt effective risk management oversight policies. Well-tailored corporate governance reforms are necessary to address these conflicts and to prevent CCP owners’ self-interested commercial incentives or other institutional constraints from triggering systemic risk concerns. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/171/1Yale Kamisar It is quite a treat to have Professor Frederick Schauer comment on my Miranda article. Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last fourand- a-half decades and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test. I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules. As Schauer observes, the use of such rules is “ubiquitous in constitutional law” and “there is no special category of prophylactic rules . . . . The phrase ‘prophylactic rule’ is accordingly best seen as a simple redundancy, sort of like ‘null and void.’” However, when Schauer maintains that (1) the right to remain silent “existed independent[ly] of Miranda,” and that (2) “the right to counsel during interrogation” also “preceded Miranda,” I have to part company with him on both counts. (I readily admit that whether there was a right to counsel during interrogation prior to Miranda is a much closer question than whether there was a right to remain silent.) Much turns on what one means by “rights.” Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/155/1Frederick Schauer  Largely as a consequence of American television and movies, Miranda v. Arizona 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. 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. Among the most interesting dimensions of Miranda’s worldwide fame is that the case’s prominence is largely a function of the warning itself. Television and motion pictures feature Miranda warnings not because of any suspected viewer interest in whether suspects actually have a right to remain silent, nor on account of the underlying substance of the right to have a lawyer during interrogation, nor because the general public is concerned about the right to appointed counsel for the indigent. 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. In lamenting Miranda’s erosion, I largely sympathize with Kamisar. But if there is a worry about the erosion of Miranda, it must be a worry not about the erosion of the right to remain silent itself, which existed independent of Miranda, nor about the right to counsel during interrogation, whose recognition and enforcement again preceded Miranda. Instead, it must be a worry about the requirement that the police provide a warning in a certain way under certain conditions. 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 these is the substance of Miranda’s holding, which is that police officers are required—on pain of inadmissibility of the evidence obtained absent a communication—to communicate to suspects under certain conditions their right to remain silent, to have a lawyer present for the interrogation, and to appointed counsel if they are indigent. And the other communicative dimension of Miranda is the way in which the Supreme Court communicated its requirements to police officers—the primary subjects of the ruling—in extraordinarily clear and rule-like terms. I will consider these two communicative dimensions in turn. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/143/1 Paul M. Smith It is striking to read the detailed account of the Supreme Court’s wrestling with Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. over a two-year period that came just a few years after I had the honor of clerking for Justice Lewis F. Powell, Jr. The unpacking of this story by Lee Levine and Steven Wermiel is invaluable because it so well illustrates the ways in which three important Justices did their jobs in the 1970s and 1980s. We see Justice Brennan working strategically to reinforce and extend his earlier opinion in New York Times Co. v. Sullivan, seeking ways to cobble together five votes from a Court that is far different from the Warren Court he once knew. We see Justice White, mercurial and idiosyncratic—first voting with Justice Brennan, then flirting with joining Justice Powell in narrowing the scope of Gertz v. Robert Welch, Inc., and ultimately filing a concurrence in the judgment calling for both Sullivan and Gertz to be overruled. And we see Justice Powell, the classic moderate centrist, seeking to adjust the constitutional rules so as to give what he considered sufficient respect to competing values—here, the competing values of protecting freedom of speech and preserving the States’ ability to use defamation law to protect reputations. Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell’s approach to constitutional jurisprudence, particularly in First Amendment cases—an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/125/1Robert M. O'Neil If ever a pending Supreme Court case deserved the merciful disposition of “improvidently granted,” it would seem to be Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Many factors seem to warrant such interment for an elusive and wholly unsatisfying controversy. Arguably, by any objective standard, this case should never have gone beyond a routine and little noted denial of certioriari. Against this unhappy background, let me offer several countervailing and compelling factors that seem to warrant an alternative disposition. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/103/1Scott L. Nelson Lee Levine and Stephen Wermiel’s account of the internal history of the Supreme Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court’s deliberations. As someone who clerked for Justice Byron White in the October 1984 and 1985 Terms and was thus present during the second of the two years in which the Court considered Dun & Bradstreet, I will not comment on the accuracy of the particular details the Article reports or add any inside information about the Court’s deliberations. That would be both improper and impossible. Improper because a law clerk has a duty of confidentiality both toward his or her Justice and toward the Court as an institution; and impossible because, not having worked on the case myself, I have only fuzzy recollections concerning the many twists and turns the Article describes, and certainly none that match the wealth of detail the authors have gleaned from the documentary record. I will, however, try to situate the case within the broader context of the issues before the Court during the 1984 Term, which may give the reader a more accurate perspective from which to judge whether the story of Dun & Bradstreet is that of a doctrinal perfect storm or a tempest in a teapot—or, perhaps more likely, something in between. I will also comment on the usefulness of the sources relied on by the authors in creating an accurate picture of the Court’s workings. Finally, I will offer some brief observations on the issues in Dun & Bradstreet, the problems it posed for the Court, and the decision’s place in the evolution of the Court’s First Amendment libel jurisprudence. Sat, 30 Mar 2013 12:00:00 PSThttp://lawdev.law.washington.edu/WLR/Issues/Articles/1/1Lee Levine & Stephen Wermiel What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court’s decision in Dun & Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent the holdings in Sullivan and Gertz v. Robert Welch, Inc. (1974) came to be reconsidered; (2) how the nature of the expression at issue in Greenmoss Builders factored into the examination of this defamation case and changed the way the First Amendment limits the common law of defamation; (3) how the members of the Burger Court considered the question of the media versus non-media status of a defendant in a defamation case; (4) how the Justices grappled with the question of the legitimacy under the First Amendment of presumed and punitive damages awards in defamation actions; (5) how the issue of the difference between private speech and public speech came to take on constitutional significance; (6) whether the Court should reconsider the balance it struck in Sullivan between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation; and (7) how all of this ultimately influenced and determined the outcome in Greenmoss Builders. In the swirl of this discussion and examination of the historical record, the reader gets a rare glimpse of the inner workings of the Court and its clerks along with a better appreciation of how consensus is built and lost, replete with occasional barbs. Moreover, this Article reveals just how laborious the shaping of First Amendment doctrine can be, given the issues (some never fully discussed in published opinions) raised by the Justices in their consideration of the Greenmoss Builders case. In these respects and others, this Article informs the reader of some of the central (albeit internal) moments in the history of defamation law following Sullivan and thereby sheds new light on how the law in this area might be shaped in the future. Sat, 30 Mar 2013 12:00:00 PST