Law Commons^™

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Hostile Restructurings, Diane L. Dick

Washington Law Review

The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing.

These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, …

The Federal Option: Delaware As A De Facto Agency, Omari Scott Simmons

Washington Law Review

Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the “Federal Option” for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware’s jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Washington Law Review

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver

Washington Law Review

The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or entity avoids activities that …

The Dormant Commerce Clause "Effect": How The Difficulty In Reconciling Exxon And Hunt Has Led To A Circuit Split For Challenges To Laws Affecting National Chains, Valerie Walker

Washington Law Review

The onslaught of chains such as Wal-Mart and Starbucks has driven some state and local lawmakers to craft regulations prohibiting these types of national chains. In response, several national chains have challenged the constitutionality of such regulations, claiming that they amount to economic protectionism. The dormant Commerce Clause (DCC) doctrine prohibits states from engaging in protectionism directed at commerce from other states. Courts use a two-tiered analysis when considering these types of challenges. The tier-level analysis is important because regulations rarely survive the first tier’s elevated scrutiny. The first tier applies when a state law directly discriminates against interstate commerce, …

Defining "Breach Of The Peace" In Self-Help Repossessions, Ryan Mcrobert

Washington Law Review

Since Roman times, creditors have invoked the limited extrajudicial remedy of self-help repossession. Pre-colonial English laws also allowed for a limited repossession remedy outside of the courts, provided the creditor accomplished the repossession without a “breach of the peace.” The Uniform Commercial Code (UCC) has allowed for the self-help remedy since the 1950s, making it available for any secured party in the event of contractual default so long as there was no breach of the peace. The drafters of the UCC, however, failed to define what constituted a “breach of the peace,” choosing to allow the courts to flesh out …

Congressional Power To Regulate Noncommercial Activity Overseas: Interstate Commerce Clause Precedent Indicates Constitutional Limitations On Foreign Commerce Clause Authority, Jeff Christensen

Washington Law Review

Although the U.S. Supreme Court has not yet ruled any statutes criminalizing the conduct of Americans overseas unconstitutional under the Foreign Commerce Clause, three U.S. Courts of Appeals decisions use the concept of enumerated powers—important in U.S. Supreme Court decisions that invalidate statutes grounded in the Interstate Commerce Clause—to suggest limitations on Congress's Foreign Commerce Clause power. In two decisions, the U.S. Courts of Appeals for the Fifth and Ninth Circuits employed the U.S. Supreme Court's Interstate Commerce Clause framework when analyzing statutes under the Foreign Commerce Clause. In so doing, these courts suggest that Foreign Commerce Clause power is …

Forum-Selection Clauses In Consumer Clickwrap And Browsewrap Agreements And The "Reasonably Communicated" Test, Kaustuv M. Das

Washington Law Review

Although forum-selection clauses in clickwrap and browsewrap agreements have been addressed in only a limited number of decisions, they are likely to become increasingly relevant with the growth of e-commerce. Courts that have enforced forum-selection clauses in click-wrap and browsewrap agreements have often done so without determining whether the consumer received notice of the clause. When courts have addressed notice, they have not used any uniform standard for determining adequacy of notice. Forum-selection clauses in dlickwrap and browsewrap agreements further the policies underlying the Supreme Court's decisions in MIS Bremen v. Zapata Off-Shore Co. and Carnival Cruise Lines, Inc. v. …

"Whatever Is Received": Evaluating Collateral, Its Disposition, And Proceeds Under Article 9 Of The Uniform Commercial Code—Rainier National Bank V. Bachmann, 111 Wash. 2d 298, 757 P.2d 979 (1988), Thomas L. Weinberg

Washington Law Review

In Rainier National Bank v. Bachmann, the Washington Supreme Court held that payments made to a debtor under the federal Dairy Termination Program were "proceeds" of the collateral at issue in the case under the Uniform Commercial Code ("UCC"). The author examines the relationship between proceeds and the collateral described by parties to a security agreement, concludes that the court improperly applied the UCC in Bachmann, and recommends an approach to evaluating proceeds

Statutory Liens On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires

Washington Law Review

The Washington Supreme Court has recently ruled that the federal Maritime Lien Act preempts state lien law. In Farwest Steel Corp. v. DeSantis, the court held, specifically, that the Maritime Lien Act preempts the state chattel lien and "boat lien" statutes. While the Farwest Steel holding seems to state the obvious, the limits of federal preemption are far from clear. Federal law does not allocate all of the risks involved in building, outfitting, financing, servicing, repairing, and retiring Blackship. The statutes "preempted" in Farwest Steel still provide the only available law for many transactions involving Blackship in Washington. …

Statutory Liends On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires

Washington Law Review

The Washington Supreme Court has recently ruled that the federal Maritime Lien Act preempts state lien law. In Farwest Steel Corp. v. DeSantis, the court held, specifically, that the Maritime Lien Act preempts the state chattel lien and "boat lien" statutes. While the Farwest Steel holding seems to state the obvious, the limits of federal preemption are far from clear. Federal law does not allocate all of the risks involved in building, outfitting, financing, servicing, repairing, and retiring Blackship. The statutes "preempted" in Farwest Steel still provide the only available law for many transactions involving Blackship in Washington. The major …

The Warranty Of Merchantability And Computer Software Contracts: A Square Peg Won't Fit In A Round Hole, Edward G. Durney

Washington Law Review

Courts have consistently held that Article 2 of the Uniform Commercial Code (U.C.C.) governs transactions involving computer hardware. Treatment of computer software transactions has been less consistent. This Comment contends that computer software, an intangible, is not within the scope of Article 2. It further contends that the warranty of merchantability cannot meaningfully be applied by analogy in computer software contracts. Finally, this Comment concludes that existing tort and contract causes of action provide software users with sufficient protection.

Uniform Commercial Code—Accounts Receivable Financing: Secured Parties' New Doubts Under The "Casual And Isolated" Test—Architectural Woods, Inc. V. State, 88 Wn. 2d 406, 562 P.2d 248 (1977), Norman B. Page

Washington Law Review

The Washington Supreme Court held, in Architectural Woods, Inc. v. State, that the assignment fell within section 9-302(1)(e) and that since plaintiffs security interest was thus automatically perfected, the bank's interest was subordinate." In deciding that Didco's assignment to plaintiff fell within the section 9-302(1)(e) exemption from filing, the court was required to construe the language of that subsection and its accompanying official comment. More particularly, the court considered the appropriate test for determining whether the assignment constituted a "significant part" of Didco's outstanding accounts and contract rights. This note will analyze the court's reasoning in adopting the "casual and …

Real Property Attachment—Property Or Economic Interest?—Hansen V. Weyerhaeuser Co. (In Re Northwest Homes, Inc.), 526 F.2d 505 (9th Cir. 1975), Cert. Denied, 425 U.S. 907 (1976), Deborah Elvins

Washington Law Review

In late 1971 the Weyerhaeuser Company initiated a lawsuit against Northwest Homes of Chehalis, Inc., for goods sold and delivered. To ensure satisfaction of any subsequent judgment, Weyerhaeuser obtained liens against the defendant's real property pursuant to the Washington attachment statute. Northwest Homes received neither notice nor an opportunity to be heard prior to the attachment. Hansen, appointed receiver in Northwest's subsequent bankruptcy, applied for an order invalidating the attachment. In December 1972 the referee declared the Washington attachment statute unconstitutional under the due process clause of the fourteenth amendment to the United States Constitution and under article I, section …

Warranties—Uniform Commercial Code—Effects Of Federal Warranty Law On Washington U.C.C. Provisions—Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (Supp. V. 1975), Guy Towle

Washington Law Review

Consumer product warranties—their creation, breach, and remedies upon breach—have generally been controlled by the common law and Uniform Commercial Code (U.C.C.) provisions in each state. Washington is no exception, and the Magnuson-Moss Warranty Act should have a significant impact upon the traditional warranty law of this jurisdiction. This note will briefly discuss the Act's basic requirements and then consider the impact of several of the Act's major provisions upon similar or conflicting provisions of the Washington Uniform Commercial Code. Primary emphasis will be placed upon the Act's effects regarding the doctrine of privity, disclaimer of implied warranties, limitation on remedies …

State Regulation Of Franchising: The Washington Experience, Donald S. Chisum

Washington Law Review

The successful use of franchising as an adjunct to more traditional marketing techniques by business firms seeking nationwide distribution for their products, services, and ideas has stimulated many franchisor abuses. Professor Chisum comprehensively discusses a variety of remedies available to the franchisee seeking relief from franchisor abuses, including remedies provided by the common law, federal and state securities laws, and the federal antitrust laws. The article assesses the relative success and failure of these general remedies in rectifying the specific problems of franchisor abuses. The author then critically examines the Washington Franchise Investment Protection Act which was enacted in 1971 …

Usury—Installment Sales Contracts: Limitation Of The Scope Of The Time Price Doctrine—National Bank Of Commerce Of Seattle V. Thomsen, 80 Wn.2d 406, 495 P.2d 332 (1972), P. A. H.

Washington Law Review

In 1965 Greg Thomsen entered into an agreement with Carter Motors for the purchase of an automobile. In addition to signing a purchase order, Thomsen executed a conditional sales contract which provided that payments were to be made to the National Bank of Commerce (NBC) and showed a time price differential of $242.15, the equivalent of a 14.61 percent annual finance charge. A Carter Motors salesman had requested that Thomsen finance the purchase through NBC, which had supplied the contract form and other documents used in the transaction. Carter Motors immediately assigned the contract to NBC pursuant to a financing …

Negotiable Instruments—A Comparison Of Washington Law And The Uniform Commercial Code, Richard Cosway

Washington Law Review

No abstract provided.

Negotiable Instruments—A Comparison Of Washington Law And The Uniform Commercial Code, Richard Cosway

Washington Law Review

No abstract provided.

Duty To Warn Extended To Non-Commercial Vendor Selling Chattel "As Is", Anon

Washington Law Review

The ignition system of T's pickup truck had a safety switch to prevent the engine from being started when the automatic transmission was in gear. When T accidentally broke the safety switch, the ignition system became inoperable. To remedy that situation, T joined the wires of the ignition system so as to bypass the broken safety switch. He knew this modification made it possible to start the truck even when the transmission was in gear. Later the motor broke down, and T had the truck towed to defendant's dealership, where he sold it "as is" to defendant. T did not …

Duty To Warn Extended To Non-Commercial Vendor Selling Chattel "As Is", Anon

Washington Law Review

The ignition system of T's pickup truck had a safety switch to prevent the engine from being started when the automatic transmission was in gear. When T accidentally broke the safety switch, the ignition system became inoperable. To remedy that situation, T joined the wires of the ignition system so as to bypass the broken safety switch. He knew this modification made it possible to start the truck even when the transmission was in gear. Later the motor broke down, and T had the truck towed to defendant's dealership, where he sold it "as is" to defendant. T did not …

Meeting Competition Exception To Sales Below Cost Prohibition, Anon

Washington Law Review

On August 14, 1963, defendant's officials determined that they would advertise and sell fryer chickens at twenty-nine cents per pound during the upcoming Labor Day weekend. Defendant's invoice cost was thirty and one half cents per pound. Competing stores had sold at twenty-nine cents on July 24, August 14 and August 16. Before it established the Labor Day weekend selling price, defendant made no investigation to determine the legality of its competitors' prices, but assumed their twenty-nine cent prices were legal because no action had been brought to enjoin or prosecute competitors. The state brought action to enjoin defendant's sales …

Meeting Competition Exception To Sales Below Cost Prohibition, Anon

Washington Law Review

On August 14, 1963, defendant's officials determined that they would advertise and sell fryer chickens at twenty-nine cents per pound during the upcoming Labor Day weekend. Defendant's invoice cost was thirty and one half cents per pound. Competing stores had sold at twenty-nine cents on July 24, August 14 and August 16. Before it established the Labor Day weekend selling price, defendant made no investigation to determine the legality of its competitors' prices, but assumed their twenty-nine cent prices were legal because no action had been brought to enjoin or prosecute competitors. The state brought action to enjoin defendant's sales …

Arbitration In U.S./Japanese Sales Disputes, Taro Kawakami, Dan Fenno Henderson

Washington Law Review

But one area where the usefulness of arbitration is recognized almost universally is international business such as U.S./Japanese sales under discussion here. On reflection the reasons are not altogether happy ones, for most of the benefits as seen by the proponents of arbitration seem to flow largely from the inadequacies of litigation, which are especially pronounced in the transnational context. What are some of the difficulties peculiar to transnational litigation? In the U.S./Japanese context they include: differences of jurisdictional requirements; uncertainty about which law will be found to govern an international contract under current choice-of-law rules; uncertainty even as to …

Disclaimers Of Warranty, Limitation Of Liability, And Liquidation Of Damages In Sales Transactions, Teisuke Akamatsu, George H. Bonneville

Washington Law Review

This article will set forth and compare the domestic law of the United States and Japan, in the narrow field of law defined in the title. Many American lawyers may feel that these subjects do not deserve equal dignity with the preceding article on products liability. They are probably right, since no amount of care or study in drafting disclaimers and limitations will protect against suit for personal injuries suffered, say, by a stevedore who steps through a hollow spot in a wrapped bundle of household doors. Moreover, this topic obviously covers only a small part of the general subject …

Products Liability In Sales Transactions, Satoshi Niibori, Richard Cosway

Washington Law Review

Products liability involves the vulnerability of a supplier of goods in a sales transaction to compensate for defects in the goods and for harm or injury resulting from those defects. The discussion of Japanese law which follows deals with the liability of manufacturers. It does not extend to liability of wholesalers and retailers, since there is no Japanese case authority in point. In the United States, manufacturer's liability is involved in many of the cases and in much of the literature, but there is a vast amount of additional authority involving the liability of wholesalers and retailers. Because some of …

Products Liability In Sales Transactions, Satoshi Niibori, Richard Cosway

Washington Law Review

Products liability involves the vulnerability of a supplier of goods in a sales transaction to compensate for defects in the goods and for harm or injury resulting from those defects. The discussion of Japanese law which follows deals with the liability of manufacturers. It does not extend to liability of wholesalers and retailers, since there is no Japanese case authority in point. In the United States, manufacturer's liability is involved in many of the cases and in much of the literature, but there is a vast amount of additional authority involving the liability of wholesalers and retailers. Because some of …

Disclaimers Of Warranty, Limitation Of Liability, And Liquidation Of Damages In Sales Transactions, Teisuke Akamatsu, George H. Bonneville

Washington Law Review

This article will set forth and compare the domestic law of the United States and Japan, in the narrow field of law defined in the title. Many American lawyers may feel that these subjects do not deserve equal dignity with the preceding article on products liability. They are probably right, since no amount of care or study in drafting disclaimers and limitations will protect against suit for personal injuries suffered, say, by a stevedore who steps through a hollow spot in a wrapped bundle of household doors. Moreover, this topic obviously covers only a small part of the general subject …

Arbitration In U.S./Japanese Sales Disputes, Taro Kawakami, Dan Fenno Henderson

Washington Law Review

But one area where the usefulness of arbitration is recognized almost universally is international business such as U.S./Japanese sales under discussion here. On reflection the reasons are not altogether happy ones, for most of the benefits as seen by the proponents of arbitration seem to flow largely from the inadequacies of litigation, which are especially pronounced in the transnational context. What are some of the difficulties peculiar to transnational litigation? In the U.S./Japanese context they include: differences of jurisdictional requirements; uncertainty about which law will be found to govern an international contract under current choice-of-law rules; uncertainty even as to …