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Overruled By Implication, Bradley Scott Shannon

Seattle University Law Review

What if an apparently relevant precedent has been eroded by one or more later decisions? One might expect that, in the event of irreconcilable conflict, the more recent precedent would control. Yet, in Rodriguez de Quijas v. Shearson/American Express, Inc., the Court stated: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” This statement is troublesome in that it has caused …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Expanding The Crime Of Genocide To Include Ethnic Cleansing: A Return To Established Principles In Light Of Contemporary Interpretations, Micol Sirkin

Seattle University Law Review

It may be surprising to discover that ethnic cleansing is legally distinct from genocide considering that the media use these terms interchangeably. Currently, no formal legal definition of ethnic cleansing exists. This Comment specifies how ethnic cleansing fits into the definition of genocide’s distinctly destructive purpose and effect. I argue that because ethnic cleansing and genocide result in similar harms and derive from similar agendas, international courts ought to find perpetrators guilty of the crime of genocide when genocidal acts are committed with the intent to create an ethnically homogenous territory. A policy of ethnic cleansing is a genocidal policy. …

Whale Watching From 200 Feet Below: A New Approach To Resolving Operational Encroachment Issues, Aaron M. Riggio

Seattle University Law Review

Military training objectives and environmental protection have been at odds for years. One can argue, not unconvincingly, that military training by land, air, or sea is inherently antithetical to environmental protection. The essential goal of the armed forces—to protect the sovereign territories of the United States—requires each uniformed service to be ready to engage hostile enemies in any locale with destructive impact. The emergence of strong national environmental protection laws presents a fundamental conflict for military leadership. The term “operational encroachment” has been used to encapsulate the description of this often abrasive relationship.

Most environmental laws contain provisions to allow …

Criminalizing Force: Resolving The Threshold Question For The Crime Of Aggression In The Context Of Modern Conflict, Keith A. Petty

Seattle University Law Review

This article examines the draft definition of the crime of aggression and how this definition will be applied to certain uses of armed force, ultimately identifying whether these actions constitute “manifest violations” of the U.N. Charter. Part II establishes the analytical framework of criminal aggression. Initially, the threshold question is explained in detail, followed by an examination of the Charter’s prohibition of the unlawful use of force and the magnitude test required to determine manifest violations of the Charter. The threshold question is then applied to humanitarian intervention in Part III. In Part IV, certain measures against terrorism, preemptive self-defense, …

Electrified Law: A Brief Introduction To The Workshop On The Future Of The Legal Course Book, David M. Skover

Seattle University Law Review

This unique venture brought scholars at the forefront of pedagogical reform together with key representatives of the print and electronic law book industry and the National Conference of Bar Examiners to explore the options available for transforming the existing prototypes of legal education and course materials. The Workshop participants engaged deeply in thoughtful dialogues about promising and pragmatic paths for the future of electrified law. Over the course of four sessions, they discussed, at different levels of abstraction, the proposition that real reform in legal education is best served by the marriage of innovative ideas with innovative media.

Effective Oral Argument: Six Pitches, Five Do’S, And Five Don’Ts From One Judge And Two Lawyers, Judge Stephen J. Dwyer, Leonard J. Feldman, Robert G. Nylander

Seattle University Law Review

Although it is becoming increasingly common for courts to decide cases without oral argument, the ability to deliver a persuasive oral argument remains critical to a lawyer’s success in trial courts and, perhaps more so, on appeal. Most courts permit oral argument in a significant number of cases, particularly in civil matters where both parties are represented by counsel. In those instances where courts grant oral argument, it is difficult—but not impossible—to change a court’s mind if it has decided to rule in favor of your opponent. However, if the court intends to rule in your favor, the easiest way …

Transcript: Workshop On The Future Of The Legal Course Book, Edward Rubin, Kellye Testy, Ronald Collins, David M. Skover

Seattle University Law Review

Most every law school right now is thinking about its curriculum. The Carnegie Report certainly was a big factor in spurring that, although curricular reform is something that law schools, of course, are always engaged in. It moves at a glacial pace sometimes. One of the things that really struck us here at Seattle University, as everyone started to talk about Carnegie and started to talk about curricular reform, is that it was, frankly, a bit of old news to us. Seattle University School of Law has always prided itself on being at the forefront of legal education in many …

Panelist Biographies, Editor's Note, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Introduction: Notes Towards An Alternate Vision Of The Judicial Role, Andrew M. Siegel

Seattle University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

King Makers?: Talk Radio, The Media Exemption, And Its Impact On The Washington Political Landscape, Joshua M. Duffy

Seattle University Law Review

Political talk radio is a lucrative and influential business. Rush Limbaugh, the most powerful voice in talk radio, signed an eight-year contract extension in 2008 for a total value of about $400 million. Limbaugh’s weekly listeners number somewhere between 14 and 20 million. Limbaugh was so influential in the Republican congressional elections of 1994, in which the Republicans took control of the House of Representatives for the first time in 54 years, that the congressional Republicans made him an honorary member of the freshman class.

Some have argued that because of its influence upon the electorate and upon particular campaigns, …

Reasonable Factors Other Than Age: The Emerging Specter Of Ageist Stereotypes, Judith J. Johnson

Seattle University Law Review

In spite of two recent Supreme Court cases that ostensibly rein- stated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. In Smith v. City of Jackson, the Supreme Court held that the ADEA was designed to attack practices that have a disparate impact on older employees, unless such practices are justified by a "reasonable factor other than age." This Article will examine the possible meanings of “reasonable factors other than age” and suggest a solution. Part …

Identifying The Unidentifiable: How Washington’S Public Education System Can Aid In The Prevention And Detection Of Childhood Mental Illness, Alexis L. Toma

Seattle University Law Review

This Comment explores three states’ approaches to mental health screenings for earlier identification of impaired mental health functioning in educational settings. The State of Washington has yet to pass any legislation aimed at instituting a mental health schema within its public schools. This Comment argues that the Washington legislature should enact children’s mental health legislation that reflects an integration of the three state positions. Specifically, Washington should adopt a cooperative and transparent mental health scheme for public schools that includes in-school screening, informed and active parental consent, educator training, and emotional health curriculum because it preserves parental rights while also …

Volume Index, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Comity Versus Unitary Law: A Clash Of Principles In Choice-Of-Law Analysis For Class Certification Proceedings In Multidistrict Litigation, Austin V. Schwing

Seattle University Law Review

This Article explores the choice-of-law quandary and its important role in multidistrict litigation (MDL) class action litigation, explains why the current approaches to the choice-of-law issue are ineffective, and offers a possible legislative solution. Specifically, Part II describes the MDL process generally to provide a basis for discussion. Part III describes the general choice-of-law rules in MDL proceedings. Part IV describes the case law addressing choice-of-law issues in MDL class certification proceedings. Part V describes the major flaws that exist when applying the comity approach or the unitary law approach to the class certification decision. Part VI offers a solution: …

When Counsel Screws Up: The Imposition And Calculation Of Attorney Fees As Sanctions, Philip Talmadge, Emmelyn Hart-Biberfeld, Peter Lohnes

Seattle University Law Review

While a body of law has emerged in Washington that permits the courts to impose fees against a party or the party’s counsel as a sanction, that body of law has not been coherently examined in the academic setting nor carefully and consistently analyzed in the case law. This Article explores and clarifies the principles underlying the imposition of attorney fees as a sanction, providing an overview of the various ways in which attorneys can be sanctioned when they screw up. The Article discusses Washington law as it applies to sanctions and briefly analyzes how Washington courts look to comparable …

Making Live And Letting Die: The Biopolitical Effect Of Navajo Nation V. U.S. Forest Service, Jessica M. Erickson

Seattle University Law Review

The philosophies of Michel Foucault have long been applied to various cultures and social movements in hopes of gaining insight into how power operates within a societal framework. One philosophy, Foucault’s conception of “biopolitics,” refers to the state’s regulatory control over the population as a whole, or its ability to control the life and death of the citizenry. Instead of exercising power at the level of each individual, “biopower” is exercised on the level of the population; it is the power to make live and let die.

Indian nations have been battling for sovereignty—freedom from external control in determining the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Setting The Record Straight: A Sur-Reply To Professors Lawless Et Al., Rafael I. Pardo

Seattle University Law Review

In this sur-reply, Professor Pardo seeks to clarify the misperceptions and mischaracterizations of his commentary by Professors Lawless et al. and to demonstrate that his arguments not only are grounded in a compelling theory of the operation of the bankruptcy system and an understanding of the First Report’s data, but also offer useful ideas for exploring available empirical data. The sur-reply will identify three of the main substantive points made in his original critique that Professors Lawless et al. misinterpret and/or mischaracterize and will clarify why these original points are valid.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Bank Bailout: A License For Sovereign Securities Fraud, Wendy Gerwick Couture

Seattle University Law Review

Unaddressed by Congress or the Treasury is the potential for the Treasury to rely on material, nonpublic information when disposing of securities purchased in the Bank Bailout of 2008. Insider trading by the Treasury should be constrained. Allowing the Treasury to trade on inside information would undercut the bailout’s goals of promoting overall faith in the markets and buttressing bank stock prices. The potential for increased profits for the taxpayers does not outweigh the cost of decreased public confidence in the markets.

Multiple potential solutions are available, including nationalizing the banks, prohibiting the Treasury from using inside information when making …

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of “Shallowness”, Matthew Steilen

Seattle University Law Review

Judicial minimalism is an account of how judges should, and sometimes do, decide the cases before them. Generally speaking, minimalist judges prefer to resolve difficult cases in a modest way. They favor narrow decisions, confined to the facts of the case; and they favor shallow decisions, avoiding any large account of the problem at hand and how it should be resolved. “Instead of adopting theories,” Cass Sunstein says, minimalist judges “decide cases.” The central claim of this Article is that minimalism does not “spur” or “promote” democracy, as Sunstein has long argued it does. Sunstein’s basic idea is that a …

New York’S Amazon Tax Not Out Of The Forest Yet: The Battle Over Affiliate Nexus, Sam Zaprzalka

Seattle University Law Review

In 2008, New York passed a state sales tax on out-of-state e-tailers by creating a rebuttable presumption that the vendor has a taxable physical presence in New York. Amazon.com and Overstock.com challenged the statute as unconstitutional. The New York Supreme Court disagreed and granted summary judgment to the State of New York. This Comment argues that the NY Court’s dismissal was only partially correct. The court was correct in noting that applying the Statute to the plaintiffs is consistent with the Due Process Clause under current U.S. Supreme Court precedent because the plaintiffs purposefully directed their activities toward New York. …