Belonging is a fundamental need without which people cannot function optimally. Accordingly, school belonging-students' perceptions of mattering or feeling cared about, accepted, respected and valued by faculty, staff, and peers-impacts students' wellbeing, academic motivation and outcomes. Equal Protection jurisprudence governing education largely overlooks the value of school belonging. Instead, it centers on a formal conception of equality, or an "anti-classification" principle, which essentially prohibits purposeful discrimination based on a fixed set of suspect traits. This formalistic "anti-classification" approach permits many policies and practices that undermine students' sense of school belonging and inhibits schools from taking certain measures to foster belonging. This Article argues for understanding the Equal Protection Clause as protecting an individual interest in school belonging. The Equal Protection Clause requires states that provide public education (as all states do) to make educational opportunities available to all on equal terms. I argue that in evaluating whether a state is fulfilling this Equal Protection obligation, courts ought to consider the demonstrated relationship between school belonging, students' well-being, and academic outcomes. A state fails to make educational opportunities available to all on equal terms when it adopts practices and policies that undermine certain students' sense of school belonging. This belonging-oriented approach would go further than current Equal Protection jurisprudence does to advance the Fourteenth Amendment's anti-caste objective. I outline how this belonging-oriented approach could inform Equal Protection analysis in several exemplary cases: (1) race-and wealth-based disparities between schools; (2) school discipline; (3) policies pertaining to inclusive curricula; and (4) race-conscious policies designed to include members of underrepresented groups. In doing so, I address some of the challenges and questions that would arise under a belonging-oriented approach. Finally, I briefly explore a similar line of argument under state constitutional rights to education. I argue for conceiving of school belonging as an educational resource that the state must distribute equitably and adequately.
Despite deportation being entrenched as a civil consequence rather than a punishment over 100 years ago, today's immigration enforcement and deportation scheme relies heavily on state-level criminal arrests, convictions, and data sharing systems. And immigration-based crimes have accounted for between twenty-five and fifty percent of all federal criminal charges over the past decade. But the fact that the systems are bureaucratically and doctrinally separate from each other has practical impacts that go beyond these formalized intersections. Not only do federal law enforcement actors often have dual mandates to investigate and prosecute federal crimes alongside related civil removal cases, but criminal procedure and law may also permit disclosure of information, or demand that non-citizens acquiesce to factual allegations, undertake certain conduct, or waive rights that can adversely affect their immigration status. From the other side, the civil nature of the immigration bureaucracy permits criminal system actors to work around constitutional and procedural protections that those under criminal investigation would normally be entitled to. This Article looks to the places where the bureaucracies of these two systems touch, focusing on case studies that highlight the relationship between the federal criminal and immigration systems in enforcement and adjudication. It asks at what point applying the coercive tools and resources of the federal criminal law apparatus to civil immigration policing weaponizes the doctrinal divide, moving from resource-sharing to an implicit endorsement of extrajudicial punishment against non-citizens by means of deportation. While due process in civil proceedings is conventionally determined by the nature of the liberty or property deprivation that might result from a government action, this weaponization of siloed doctrines in an integrated enforcement bureaucracy asks us to consider not simply the consequence, but also the manner that state enforcement power is exercised in the actions that lead up to that adjudication. In the absence of more sweeping efforts to de-link the criminal and immigration systems, fairness demands that where a civil enforcement scheme utilizes criminal enforcement power, there should be meaningful accountability mechanisms that cut across doctrinal and bureaucratic silos.
Almost immediately upon his second inauguration, President Trump took several actions that subvert longstanding norms, contravene long-settled Supreme Court precedent, and disrespect the authority of the coordinate branches to check executive branch excess. The Administration's actions pose both immediate and long-term challenges to the American constitutional order, with many scholars and citizens believing that the United States is in the midst of a constitutional crisis. At minimum, the Trump Administration's actions have illuminated sticking points in both functionalist and formalist conceptions of the separation of powers. For this model of shared but distributed power to function, each branch must give due respect to the outcomes of its dialogic interactions with other branches. When one branch rejects these norms of engagement, the system will not function as intended and the governmental excesses of that branch will go unchecked, even if they violate substantive constitutional or statutory limits.
Before COVID-19, federal judges largely resisted cameras in their courtrooms; during it, they used webcams to hold court. The American legal system is designed for in-person interaction, yet cases during the pandemic were frequently adjudicated outside the courtroom's shared physical space. Judges and policymakers must now harmonize pre-pandemic law and policy with pandemic-era experience. To do so, decisionmakers need an analytical framework to harmonize adjudication's tangible foundation and media's intangible effects. This Article provides it. The Article first argues that pre-pandemic judicial intuition (as seen in three judicial philosophies) holds post-pandemic promise. The strictest philosophy requires physical presence for crucial moments of the judicial process. An intermediate approach prefers physical presence but uses policy-based interest balancing. The most flexible view sees physical presence and media use as interchangeable means to the same end. Each judicial philosophy is useful, but none provides a one-size-fits-all solution. The Article next explores media effects judges recognize but struggle to name. Media foster "presence at a distance," which in turn changes preexisting dynamics related to courtroom context, participation and behavior, and exclusion of outside information. Media also introduce new dynamics through their "thirdness," including physical infrastructure concerns, hazards of dehumanization and surveillance, and beneficial opportunities for increased accessibility. These phenomena affect adjudication in different ways at different times. The judiciary should consider them carefully. The Article culminates by equipping judicial decisionmakers to weigh media's burdens and benefits. It presents afirst-of-its-kind scalable analytical framework that empowers judges and policymakers to make intentional decisions about both remote access and remote proceedings.
Noncitizens often come to the United States seeking protection from violence, persecution, or life-threatening conditions in their home countries. However, upon arrival, many noncitizens are placed in removal proceedings and face deportation back to the very dangers they escaped. U.S. immigration law provides various forms of relief from deportation, most notably asylum and withholding of removal. Both forms require the applicant to show a connection-or "nexus"-between the persecutor's motive for persecuting them and one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Although asylum and withholding of removal both require a noncitizen to prove a nexus between the persecutor's motive and one of the five protected grounds, these forms of relief are distinct legal remedies with different standards. In 2005, Congress passed the REAL ID Act, which amended the nexus standard for asylum. This amendment heightened the nexus requirement, specifying that a protected ground be "one central reason" for the applicant's persecution. In contrast, withholding of removal only requires that a protected ground be "a reason" for the persecution. Despite this difference, the Board of Immigration Appeals and some circuit courts have interpreted the stricter asylum nexus standard as applying to both types of relief. The resulting inconsistency among the federal courts has raised a key question: Should the heightened asylum standard of "one central reason" also apply to withholding of removal? This Comment contends that the nexus standards for asylum and withholding of removal are distinct, and courts should not apply the "one central reason" nexus test to both statutes. By examining the asylum statute, 8 U.S.C. & sect; 1158(b)(1)(B)(i), the withholding of removal statute, 8 U.S.C. & sect; 1231(b)(3)(C), the legislative history behind the REAL ID Act, and relevant case law, this Comment concludes that the language in the withholding of removal statute reflects a deliberately lower standard and should remain separate from asylum's heightened requirement.
The Agua Caliente Band of Cahuilla Indians has inhabited the Coachella Valley region since time immemorial. Through a series of 1870s executive orders, the United States government reserved land for the Tribe to establish a permanent home within the bounds of their ancestral homeland. Underlying this permanent home is the Coachella Valley aquifer, a groundwater source that has been in a continuous state of overdraft for decades. Against the backdrop of climate change, water scarcity, and other concerns, the Tribe sued Coachella Valley's water management agencies in 2013, alleging the Tribe owned a portion of the water in the aquifer as an implied right under their reservation. The Ninth Circuit found in favor of the Tribe, holding they did, in fact, have a federal reserved right to water in the aquifer. The second phase of the case, ultimately heard by the United States District Court for the Central District of California in 2019, sought to quantify that right. Despite its repeated recognition of the Tribe's federal reserved right to groundwater, the district court then dismissed the case, finding the Tribe lacked standing to pursue their claim. This Comment analyzes the district court's decision in Phase II of the Agua Caliente litigation, highlighting the inconsistencies between the purpose of the Winters doctrine and the court's preclusion of standing. Without the ability to quantify their legal right to groundwater, the right itself becomes meaningless in practice. The court's finding that the Tribe lacked standing to pursue its claim denies the rights established under the Winters doctrine and departs from historic understandings of the federal trust relationship and Indian Canons of Construction. Ultimately, this Comment argues courts should adopt a broader construction of these foundational principles of federal Indian law to allow for the most equitable framework for tribes seeking to quantify their reserved water rights through litigation.
When the police wrongfully arrest someone, that person faces distinct harms. Various scholarship, news articles, and studies document that AI-powered facial recognition technology (FRT) disproportionately misidentifies individuals from marginalized racial groups when used irresponsibly. Many of those sources indicate that police reliance on FRT without adequate vetting results in wrongful arrests. Yet law enforcement continues to misuse FRT. This Comment contends that the 42 U.S.C. & sect; 1983 state-created danger doctrine offers a potential remedy for plaintiffs harmed by police reliance on FRT. To prevail under this doctrine, plaintiffs must prove affirmative conduct, deliberate indifference, and proximate causation. If successful, these claims may provide a limited means to hold officers accountable in the absence of the uniform legislation needed to fully address the issue.
The Fair Labor Standards Act (FLSA), passed by Congress in 1938, sets federal workplace standards and protects over 100 million workers in the United States. The FLSA also includes a collective action provision, which allows workers to privately sue their employers for FLSA violations in a unique way. A collective action lawsuit is a distinct form of aggregate litigation that allows an employee to sue their employer for FLSA violations on behalf of other similarly situated employees in one action. Similarly situated employees who wish to join a collective action must affirmatively opt in and consent to participate in the suit. Collective actions provide an efficient and cost-effective route for harmed workers to seek redress while helping ensure compliance with the FLSA. Before a court can adjudicate a civil lawsuit, including a collective action, it must have personal jurisdiction over the parties. In 2017, the United States Supreme Court complicated personal jurisdiction jurisprudence in Bristol-Myers Squibb v. Superior Court of California ("BMS") by holding that a court must have personal jurisdiction in the forum state over a defendant with respect to each plaintiff's claim in a mass action lawsuit. Currently, there is a lopsided circuit split regarding whether BMS applies to FLSA collective action lawsuits. The Third, Sixth, Seventh, Eighth, and Ninth Circuit Courts have all applied BMS to FLSA collective actions, whereas the First Circuit has declined to apply BMS. The Supreme Court is silent on this issue. Circuits that apply BMS to FLSA collective actions require a connection between the forum state, the defendant, and each opt-in plaintiff's claim to establish specific personal jurisdiction, often dismissing many opt-in plaintiffs who have nearly identical claims to the original named plaintiff. This Note argues that contrary to the weight of circuit precedent, BMS should not apply to FLSA collective actions, and courts need only assess personal jurisdiction with respect to the defendant and the named plaintiff. The purposes of the FLSA and personal jurisdiction are best served when all similarly situated harmed workers can seek redress for FLSA violations in a fair and efficient manner.
Washington state law balances the interests of parents and the state in education, healthcare, and the general wellbeing of children. Despite the fact that children are at the center of emerging controversies, children's rights are rarely discussed in state legislation debating the obligations and relationships between the state of Washington and parents. In education, for example, RCW 28A.605.005 finds "[p]arents are the primary stakeholders in their children's upbringing." While this may be true relative to the state, it overlooks the fact that children are the primary actors, agents, and rights bearers in their own personhood. This Article therefore considers ongoing public debates and legislation over parental rights of notification and control in education and healthcare under Washington state law, reframing these issues through the rights of children. State law provides a key vehicle for codifying, protecting, and even constitutionalizing the rights of everyone within the state, and this Article considers how state law could embrace a children's rights framework to ensure self-determination for all marginalized populations. In balancing the interests of the state and parents, children are the fulcrum-the center point of the balance in weighing the two interests. Strengthening the fulcrum ensures both that the state and parents' interests can be adequately weighed and considered, and that children's rights and self-determination are protected in our understandings of the law through legislation and judicial frameworks. Emphasizing the rights of children-recognizing both their power and precarity without exploitation or subordination-creates conditions for the protection of all persons in the present and for the future.
The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well beyond federal Indian law and provide important-but often overlooked-insight into the health and stability of fundamental aspects of our legal system as a whole and, therefore, the rule of law itself. Here in Washington, the Washington State Supreme Court developed its own approach to analyzing and interpreting treaty rights, which, for much of the first half of the twentieth century, largely ignored or dismissed treaties and rights reserved thereunder in favor of state interests. More recently, however, the state's highest court has embarked on an effort to reassess and reckon with its role in perpetrating and perpetuating historical injustices. That effort has resulted in a series of decisions reconsidering the Court's own treaty-related jurisprudence and, therefore, offers a timely and critically important opportunity to consider the potential and promise of this work. In the spirit of the 125th anniversary of the founding of the University of Washington School of Law and the centennial volume of Washington Law Review, this Article considers the fundamental issues posed by treaty-related questions and aims to draw lessons from the Washington State Supreme Court's recent efforts to address historical injustices that might inform other, similar efforts across the country. Situating that assessment within the context of treaty rights and the sovereignty of Native Nations illustrates the power of this work to catalyze a deeper and broader reckoning with crucial questions of justice and the rule of law.
In 2012, Washington's landmark McCleary decision confirmed and expanded previous interpretations of the state constitution's "paramount duty" clause, affirming a vital positive right to education and a judicial willingness to enforce it against the other branches. Notwithstanding a tense six-year period of judicial supervision after the ruling, ultimately the state legislature enacted broad education funding reforms and the appropriations and revenues to implement the additional resources for schools. Given competition among stakeholders for public funding for state programs, in the post-McCleary period, other litigants have asked courts to find similar positive constitutional rights to state services and funding. So far, advocates for school construction, judicial branch funding, and environmental rights have failed to persuade the courts that the state constitution establishes other positive rights to judicially compelled funding. Does the paramount duty stand alone as the sole positive right under Washington's state constitution, or will future litigants demonstrate that separation of powers concerns should not prevent the judiciary from recognizing new positive rights? Expanding positive rights jurisprudence poses a significant risk for the state's judiciary, which has broad general jurisdiction that contrasts with federal judicial restraint principles such as the political question doctrine. Whether accepting or rejecting future positive rights lawsuits, Washington's courts must analyze positive rights claims and separation of powers defenses under principles fully rooted in state constitutionalism.
In June 2024, the United States Supreme Court ruled in Harrington v. Purdue Pharma that nonconsensual releases for nondebtors are unconstitutional. The decision marked a key development in mass tort litigation involving Purdue Pharma, the company at the center of the opioid crisis. The Sackler family sought to use Purdue's bankruptcy proceedings to shield themselves from liability, but the Court's ruling invalidated the use of nondebtor releases to protect third parties from claims without the full consent of affected parties. While the ruling strengthens creditor protections, it creates uncertainty regarding how mass tort bankruptcies can efficiently compensate victims, particularly in public health crises with longterm effects. This Comment argues that Congress should expand section 524(g) of the Bankruptcy Code, which currently only applies to asbestos-related claims, to include other mass torts. To address public health crises and enhance bankruptcy's effectiveness, the framework should include a structured test to determine if a mass tort bankruptcy qualifies for section 524(g) protections. Examining the Supreme Court's reasoning, the history of nondebtor releases, and asbestos bankruptcy precedents, this Comment advocates for a tailored legislative solution to ensure fair, long-term compensation for those harmed by entities like Purdue Pharma.
The nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care. Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking witnesses or other evidence in the investigation or prosecution of abortion or gender-affirming care. This Article is about the rise of resistance by refusal to cooperate with interstate evidence-gathering as the nation fractures over rights protection and punishment. The Article advances the normative case for disrupting the modern march toward collaborating in evidence-gathering across state borders, drawing on history illuminating that comity is not a straitjacket binding states to punitive restrictions nor always desirable. As fierce cultural and legal divides split the nation, interstate comity and cooperation are giving way to the need to protect a higher standard of rights from dissolution and punishment. The Article envisions how shield laws can expand to cover new challenges, such as using automated license plate reader databanks to hunt for people trying to exercise reproductive rights across state lines or in immigration investigations.
Imagine one day waking up, opening Facebook, and discovering that the official White House account blocked you because you left a comment expressing a viewpoint. In this case, your First Amendment right to free speech would most likely be violated. However, what happens if your local official blocks you or deletes your comments? Are your First Amendment rights violated? Well, it depends. Historically, public officials have used public forums such as town halls to meet with citizens and answer questions. However, as social media platforms like X and Facebook have become increasingly crucial tools for communication, the distinction between personal and official social media content has blurred. These issues can fall under First Amendment violations, as seen in the Supreme Court ruling in Lindke v. Freed, which held that a public official's social media activity constitutes state action only when it is carried out under actual or apparent governmental authority. The response to Lindke underscores the growing significance of social media platforms as modern public forums for First Amendment expression. This Comment argues that the Lindke Court should have provided clearer guidelines to lower courts on distinguishing between personal and official accounts. Furthermore, social media platforms should implement transparent and neutral content moderation policies to balance the free speech rights of public officials and citizens. Finally, Washington State should adopt statutes that clearly define public officials' social media use and when their actions could be classified as official.
In a personal injury suit, Washington law requires the plaintiff to prove that their medical costs are reasonable to recover damages for those costs. Tort reform proponents attempt to use this reasonability rule to limit tort damages awards. They argue that a plaintiff should only recover a portion of a hospital's bill because most people do not pay a hospital's sticker price-or the "chargemaster rate"-for medical care. Some reformers argue that recovery rates should instead be based on a set figure. Others argue in favor of eliminating the collateral source rule, which prohibits juries from reducing tort damages awards in light of plaintiffs' insurance coverage. The critics share a common belief: that chargemaster rates are not an accurate measure of damages. This Comment defends the use of chargemaster rates by juries in determining damages awards. A hospital may always charge patients its chargemaster rate, so any limit on recovering the chargemaster rate places plaintiffs at risk of incurring medical debt as a result of necessary medical care secondary to an injury. The problem lies not with the tort damages system, but with unregulated and skyrocketing medical costs. Legislative action preventing providers from billing at their chargemaster rate or other safeguards that ensure plaintiffs cannot lose their recoveries to medical bill repayment could combat this problem. But, barring such actions, courts should interpret the reasonable rate of medical billing to be the hospital's chargemaster rate.
In the past five years, numerous Republican legislators and conservative parental groups have aggressively pushed to restrict sexual content in public schools. Many school districts have adopted policies that limit what topics are covered in class, and several statewide laws have legitimized and mandated these policies. Consequently, books featuring queer themes or characters are rapidly disappearing from public school libraries. These library restrictions, or book bans, have sparked substantial controversy and litigation. This Comment examines state laws restricting public school libraries in Texas, Florida, and Iowa, arguing that these library restrictions violate the First Amendment on multiple grounds. Additionally, it evaluates ongoing legal challenges to these laws and argues that courts should affirm the unconstitutionality of politically motivated school library restrictions.
This Article calls attention to the harms done when parties are misnamed in legal proceedings. Misnaming, which many might initially consider trivial, is properly understood as a form of linguistic violence that can inflict dignitary harms as well as have material consequences. Misnaming takes on a different valence when it is done by the state. This Article focuses on the misnaming of Indigenous, Asian, and Latine people, beginning first with the way misnaming is done by the administrative state. The authors then discuss misnaming as it has operated in legal proceedings, providing both historical and contemporary examples from federal and Washington state proceedings. The Article then describes the dignitary harms and material consequences when the state misnames parties. The problem is particularly acute for Latine people because state actors are inconsistent in how names are recorded. As a result, many Latine people accumulate AKAs or aliases based on inconsistent recording of accented letters or inconsistent recording of patrilineal and matrilineal surnames. These AKAs or aliases may impact police encounters or trial court determinations of pretrial release. The material consequences extend beyond the legal system and can impact hiring decisions by employers or leasing decisions by landlords who may regard the applicant with suspicion when they learn of the AKAs or aliases through the ubiquitous use of background checks. The Article closes with suggestions to address misnaming by the state and in legal proceedings.
This Comment challenges as unconstitutional Washington's exemption of incarcerated individuals from the state Minimum Wage Act. Incarcerated people in Washington, unprotected by minimum wage guarantees, earn low wages in state-run inmate work programs. This statutory carveout is contrary to the rehabilitative purpose of Washington's prisons because it impedes incarcerated people's ability to afford necessities, participate in rehabilitative programs, and reintegrate into society. This exemption is unconstitutional under the state's cruel punishment clause, because it is disproportionately cruel punishment and an excessive fine that incarcerated workers cannot afford. The exemption is also unconstitutional under the state's privileges and immunities clause, because it unconstitutionally grants workers outside prison the privilege of earning a minimum wage that is not equally available to workers inside prison.
The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County ofEl Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary zoning, which is ripe for constitutional scrutiny. This Comment forecasts the legal challenges Washington legislators will face after Sheetz and recommends that jurisdictions exercise caution accordingly. This Comment first provides an overview of the unconstitutional conditions doctrine as it evolved over the course of a century before isolating land-use decisions. Then, this Comment discusses Washington's approach to deciding unconstitutional conditions disputes and the state's most prominent inclusionary zoning policy. The shortcomings of previous mandatory inclusionary zoning programs combined with renewed constitutional scrutiny of those measures demand a more flexible approach to housing. However, the course of the unconstitutional conditions doctrine also illustrates a shift from trust in governments' protection of their citizens to an emphasis on individual property rights. This Comment concludes with two arguments: (1) courts should afford local governments more deference in their land-use decisions, and (2) inclusionary zoning policies should account for alternatives and previous shortcomings.
Training Repayment Agreements (TRAs) are restrictive employment covenants that require an employee to pay their employer a fixed or prorated sum for training costs if the employee quits their job within some period defined by the agreement. The prevalence of TRAs has drastically increased in low-wage employment. TRAs harm employees by imposing an artificial financial constraint that disincentivizes employees from leaving their employer within the contract duration. The Washington State Legislature has not directly addressed TRAs despite having articulated limits on other restrictive employment covenants, like noncompetition agreements. This Comment reviews federal agency actions and other states' approaches in response to the increased use of TRAs. Considering how Washington courts interpret the enforceability of similar restrictive employment covenants, this Comment assesses how Washington courts would interpret the enforceability of TRAs. This Comment analyzes TRAs by determining whether (1) TRAs violate the unconscionability doctrine, (2) TRAs are unenforceable under the Racine test used to evaluate noncompetes, (3) TRAs are de facto noncompetes and thereby unenforceable under RCW 49.62, and (4) TRAs violate minimum wage regulations. This Comment concludes that none of these pathways provide a ready answer for whether these agreements are enforceable under Washington law. Ultimately, the recent expansion of the unconscionability doctrine in Tadych provides the strongest argument for employees.
