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Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh
Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh
Washington Law Review Online
Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …
“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer
“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer
Washington Law Review Online
For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …
Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment, Grace Egger
Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment, Grace Egger
Washington Law Review Online
Video doorbells have proliferated across the United States and Amazon owns one of the most popular video doorbell companies on the market—Ring. While many view the Ring video doorbell as useful technology that protects the home and promotes safer neighborhoods, the product reduces consumer privacy without much recourse. For example, Ring partners with cities and law enforcement agencies across the United States thereby creating a mass surveillance network in which law enforcement agencies can watch neighborhoods and access Ring data without the user’s knowledge or consent. Because Amazon is not a state actor, it is able to circumvent the due …
State Action And Gender (In)Equality: The Untapped Power Of Washington's Equal Rights Amendment, Maria Yvonne Hodgins
State Action And Gender (In)Equality: The Untapped Power Of Washington's Equal Rights Amendment, Maria Yvonne Hodgins
Washington Law Review Online
Washington’s Equal Rights Amendment (ERA) is a powerful legal tool. Its sweeping, protective language triggers the application of an absolute standard of review—a level of review even higher than strict scrutiny. Yet the ERA is underutilized by litigants seeking protection against gender-based discrimination. This may be due to the inconsistencies in the Washington State Supreme Court’s state action jurisprudence. Though the ERA includes the phrasing “under the law,” its plain language does not necessarily support a finding of a state action requirement. The state action doctrine is grounded in federalism and separation of power concerns that are not present at …
The Once And Future Promise Of Access To Justice In Washington's Article I, Section 10, Debra Stephens
The Once And Future Promise Of Access To Justice In Washington's Article I, Section 10, Debra Stephens
Washington Law Review Online
This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015.
Evaluating International State Constitutionalism, Johanna Kalb
Evaluating International State Constitutionalism, Johanna Kalb
Washington Law Review Online
This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015.
"Does Oregon's Constitution Need A Due Process Clause?" Thoughts On Due Process And Other Limigations On State Action, Thomas A. Balmer
"Does Oregon's Constitution Need A Due Process Clause?" Thoughts On Due Process And Other Limigations On State Action, Thomas A. Balmer
Washington Law Review Online
During a legislative hearing last year, an Oregon state senator asked, “Does Oregon’s Constitution need a due process clause?” That question raises fundamental issues of constitutional law and of the relationship between the federal and state constitutions. Can and should state courts rely primarily on federal constitutional principles, made applicable to the states through the Fourteenth Amendment’s Due Process Clause, in deciding critical questions about the rights of criminal defendants, freedom of speech and religion, and equal protection? Or should state courts focus on their own constitutions—state due process, equal privileges and immunities, and similar “great ordinances” or more specific …
Mccleary: Positive Rights, Separation Of Powers, And Taxpayer Protections In Washington's State Constitution, Kristen L. Fraser
Mccleary: Positive Rights, Separation Of Powers, And Taxpayer Protections In Washington's State Constitution, Kristen L. Fraser
Washington Law Review Online
No abstract provided.
Popular Constitutionalism And Its Enemies, G. Alan Tarr
Popular Constitutionalism And Its Enemies, G. Alan Tarr
Washington Law Review Online
This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015.
Washington State's Mandate: The Constitutional Obligation To Fund Post-Secondary Education, Adam Sherman, Hugh Spitzer
Washington State's Mandate: The Constitutional Obligation To Fund Post-Secondary Education, Adam Sherman, Hugh Spitzer
Washington Law Review Online
This essay focuses on the provisions of the Washington State Constitution that address post-secondary education. It argues that, understood in the historical context in which those sections were drafted, Washington has a constitutional obligation to support and fund its institutions of higher learning. The essay describes the historical development of education systems in the United States, with particular attention paid to the funding of those systems. It then shows that (1) the language of Articles IX and XIII of Washington’s constitution are closely related, (2) Article IX’s “general and uniform system of public schools” was meant to include both normal …