Kellye Y. Testy, Clark B. Lombardi, Chai R. Feldblum, Joseph M. Sellers, Michael E. Waterstone & Michael Ashley Stein
86 Wash. L. Rev.  695

December 2011

Professor Paul Steven Miller devoted his career to the advocacy of disability rights. He served as the Henry M. Jackson Professor of Law and the Director of Disability Studies at the University of Washington School of Law, he advised Presidents Clinton and Obama, and he was a Commissioner for the Equal Employment Opportunity Commission. Professor Miller died on Oct. 19, 2010, at age forty-nine. The Washington Law Review is honored to present the following tributes to his distinguished career.

Anne Bloom with Paul Steven Miller
86 Wash. L. Rev.  709

December 2011

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs’ awards

Diane E. Thompson
86 Wash. L. Rev.  755

December 2011

Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications.

One reason foreclosures outpace modifications is that the mortgage-modification decision maker’s incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer’s main function is to collect and process payments from homeowners, and servicers do not necessarily have any ownership interest in the loan. Servicers, unlike investors, generally recover all their hard costs after a foreclosure, even if the home sells for less than the mortgage loan balance. Servicers may even make money from foreclosures through charging borrowers and investors fees that are ultimately recouped from the loan pool.

Existing regulatory guidance could be improved to facilitate modifications. Investors need increased transparency to hold servicers accountable for failing to make modifications when it is in the investors’ best interests to make modifications. Fundamentally, servicers must be required to make modifications when doing so would benefit the trust as a whole.

Jeffery C. Barnum
86 Wash. L. Rev.  841

December 2011

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.

Angela Galloway
86 Wash. L. Rev.  875

December 2011

The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee”for its purposes to exclude politicians and certain categories of politicians’ appointees—including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment law vagary are basic worker rights guaranteed by major federal statutes. The U.S. Supreme Court or Congress should articulate a lucid definition for the exception for appointees on the “policymaking level” that honors Congress’s intent for a narrow exception: the exemption should apply only to positions characterized by both a direct working relationship with the appointer and an explicit duty to make substantive policy.

David Rubenstein
86 Wash. L. Rev.  905

December 2011

In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an“objectively unreasonable” application of U.S. Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA’s procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Court should discourage trial and direct-review courts from basing their decisions on AEDPA cases.

Mary Swift
86 Wash. L. Rev.  941

December 2011

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: (1) exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; (2) expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; (3) declining jurisdiction protects tribes’ sovereign authority to determine their own membership; and (4) 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.