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Articles 1 - 30 of 52
Full-Text Articles in Law
The Entrepreneur And The Theory Of The Modern Corporation, Charles O'Kelley
The Entrepreneur And The Theory Of The Modern Corporation, Charles O'Kelley
Faculty Articles
The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, Risk, Uncertainty, and Profit. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow the …
Killing Jim Crow And The Undead Nondelegation Doctrine With Privately Enforceable Federal Regulations, Brian J. Sutherland
Killing Jim Crow And The Undead Nondelegation Doctrine With Privately Enforceable Federal Regulations, Brian J. Sutherland
Seattle University Law Review
This Comment has two goals. First, it seeks to contextualize, within the reality of institutional racism, the debate over the private enforceability of federal regulations under 42 U.S.C. § 1983. On the one hand, the regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964 already include many provisions which effectively confront the vestiges of racially discriminatory law and policy. The logical inference is that these perfectly proscriptive federal regulations ought to be enforceable, through private lawsuits if necessary, in order to enjoin and deter such policy and procedure. On the other hand, federal administrative agencies have …
Policy, Logic, And Persuasion In The Evolving Realm Of Trust Asset Protection, John K. Eason
Policy, Logic, And Persuasion In The Evolving Realm Of Trust Asset Protection, John K. Eason
Faculty Articles
The concept of using legal structures to protect property from those who might otherwise have some claim to it is an idea with deep roots. The trust device is one such legal structure, and its evolution as an asset protection device has not been without controversy. The recent and noticeable break with the traditional denial of self-settled trust protections is one such area of modern controversy, but not the only notable recent development. The self-setted asset protection trust movement is accompanied by the recent completion of two major law reform projects. The drafting and recommendation for state adoption of a …
Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud
Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud
Faculty Articles
This article argues that the discourse of viability of civil society in postcolonial polities is theoretically ungrounded, and helps to further marginalize subordinated sections of these societies. These failings result from the imprisonment of dominant social theories in Eurocentric unilinear evolutionism, an imprisonment that blinds one from the particularities of supposedly universal categories that issue from Europe's experience of modernity. Furthermore, enthusiasm for civil society ignores the truncated colonial career of modernity and the nature of the postcolonial state. In order to substantiate these propositions, the paper traces the genealogy of the concept of civil society, examines the colonial career …
Circular 230 Opinion Standards, Legal Ethics And First Amendment Limitations On The Regulation Of Professional Speech By Lawyers, David T. Moldenhauer
Circular 230 Opinion Standards, Legal Ethics And First Amendment Limitations On The Regulation Of Professional Speech By Lawyers, David T. Moldenhauer
Seattle University Law Review
Part II of this Article discusses the background, scope, and requirements of the Circular 230 rules. Part III discusses the ethical rules applicable to tax opinions, compares these rules to the Circular 230 opinion standards, and concludes that the Circular 230 standards impose substantially greater requirements on practitioners than, and in certain respects conflict with, the ethical rules. Part IV discusses First Amendment case law and commentary regarding professional speech, and proposes that professional speech regulations be analyzed by a model that defines permissible regulation of professional speech by reference to the role of the profession in society and accepted …
Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks
Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks
Seattle University Law Review
This article will explore both the various problems that arise with a policy that essentially mandates waiver of the attorney-client privilege as well as the limited appeal of the selective waiver theory as a compromise position. It concludes that selective waiver is inadequate in addressing the many problems created by policies that coerce waiver and that a more desirable solution is to eliminate or amend the governmental policies that coerce waiver. Part II of this article explains and explores the metes and bounds of the attorney-client privilege and work-product protection. Part III explains the development of the selective waiver theory, …
Founded Suspicion: The Ninth Circuit's Response To Almeida Sanchez, Seattle University Law Review
Founded Suspicion: The Ninth Circuit's Response To Almeida Sanchez, Seattle University Law Review
Seattle University Law Review
Considering the difficulty of interdicting smugglers and aliens at the Mexican border, the Ninth Circuit's ready acceptance of founded suspicion to justify searches near the border is not surprising. The United States Supreme Court, however, has consistently held that the mere presence of an important governmental interest does not justify vitiating Fourth Amendment protections. The Fourth Amendment requires courts to scrutinize closely the interests of the individual prior to concluding that the interests of the government, however exigent and compelling, are paramount. This comment, after analyzing the conceptual underpinnings of automobile seizure law and "stop and frisk"--the possible grounds supporting …
Naked Came I: Jurisdiction-Stripping And The Constitutionality Of House Bill 3313, Jason J. Salvo
Naked Came I: Jurisdiction-Stripping And The Constitutionality Of House Bill 3313, Jason J. Salvo
Seattle University Law Review
In his law review article, Professor Henry Hart responded to the questions of whether Congress had unlimited control of federal jurisdiction and whether this control was consistent with other provisions in the Constitution. Though Professor Hart's article has been widely debated, his overarching thesis is generally accepted: Congress' power to restrict Supreme Court jurisdiction is bound by the requirement that the Court's “essential functions” may not be trammeled, but Congress' power to restrict lower federal court jurisdiction is broad. This Comment will build on Professor Hart's thesis, arguing that the essential functions of the federal judiciary are broader than what …
Between A Man And His God: Violating The First Amendment Through Compelled Behavior Modification, Charles Davis
Between A Man And His God: Violating The First Amendment Through Compelled Behavior Modification, Charles Davis
Seattle University Law Review
Part II of this Note discusses the facts leading up to Boone v. State and the First Amendment arguments raised by Boone. Part III offers a brief historical perspective on religion in the American legal system, emphasizing specific developments relevant to Boone's case. Part IV analyzes the court's fatally flawed analysis, and Part V addresses the ramifications of the holding and offers some suggestions.
Volume Index, Seattle University Law Review
Volume Index, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Leveling The Playing Field: Helping Students Succeed By Helping Them Learn To Read As Expert Lawyers, Laurel Oates
Leveling The Playing Field: Helping Students Succeed By Helping Them Learn To Read As Expert Lawyers, Laurel Oates
Faculty Articles
The article explores a way in which law schools can level the field of student admission in order to ensure the success of students as law students and as lawyers in the United States. A study which compares the reading skills of a professor and four students who had been admitted to law school under a special admissions program is presented. It provides the techniques for students to develop their reading skills. It emphasizes on the importance of teaching legal reading.
A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro
A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro
Faculty Articles
Recent years have seen a proliferation of alternative reproductive technologies and the ready availability of reliable DNA testing. These developments have lead to enormous uncertainty concerning the meaning of a genetic tie between adult and child. On the one hand, reproductive technology has lead to a robust market where genetic material is readily bought and sold. This suggests it is not the root of parental status. On the other hand, DNA testing has allowed men to contest paternity of children, asserting that they are not genetically related to them. And their challenges have often been successful. Genetic linkage is particularly …
Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez
Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez
Faculty Articles
Much of the literature on environmental justice struggles in the United States and in the Global South has highlighted the disproportionate concentration of environmental hazards in poor communities and communities of color. However, it is equally important to evaluate how human societies distribute access to environmental necessities, such as food and water. Food is a quintessential environmental necessity that is critical human survival, and the right to food is recognized under a variety of international human rights law instruments. This article examines the complex ways in which the rules governing international trade in agricultural products affect the fundamental human right …
The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark
The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark
Faculty Articles
This article discusses the controversial right-to-die law, and the prominent cases surrounding it. It critically outlines various case outcomes with respect to the law, and discusses seminal development the law has seen.
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
Seattle University Law Review
When the state acts as a market regulator, the dormant Commerce Clause invalidates discriminatory regulation without the need for an order against the state. The courts simply refuse to enforce the state law on the ground that it is unconstitutional. When the state acts as a market participant, however, the court would have to direct its order against the state or its officials to negate the discrimination. This produces a direct confrontation with the state, the same kind of confrontation the clear statement rule was designed to avoid. Part II of this article examines the theory of the dormant Commerce …
Denial Of Recovery To Nonresident Beneficiaries Under Washington's Wrongful Death And Survival Statutes: Is It Really Cheaper To Kill A Man Than To Maim Him?, Jonathan James
Seattle University Law Review
Although courts have expressed repugnance for discrimination against nonresidents as far back as the early 1900s and recognized that it was out of date even in their time, it is the refusal of Washington courts to question the constitutionality of such legislative enactments which has allowed this injustice to continue unabated for almost 100 years. It is time that the courts in Washington finally realize that such discriminatory legislation must succumb to the protections provided by both the United States and Washington Constitutions and find these statutes unconstitutional. To do otherwise would allow a tortfeasor an “undeserved and morbid windfall” …
The Limitations Of Legislatively Imposed Damages Caps: Proposing A Better Way To Control The Costs Of Medical Malpractice, Nancy L. Zisk
The Limitations Of Legislatively Imposed Damages Caps: Proposing A Better Way To Control The Costs Of Medical Malpractice, Nancy L. Zisk
Seattle University Law Review
This Article considers whether state damages caps are constitutional and examines recent studies suggesting that damages caps are not achieving their intended goals. Given the mounting evidence against the effectiveness of damages caps and the questions about their constitutional validity, this Article proposes moving away from legislative caps on damages. Instead, this Article argues for a modified market model based on a combination of improved care, which would include improvements in service; better peer review; and, if necessary, legislation which would be designed to protect the confidentiality of peer review, reduce frivolous lawsuits, and regulate insurance rate increases. Part II …
Introductory Essays, Kellye Testy, Thomas J. Holdych, Robert Medved
Introductory Essays, Kellye Testy, Thomas J. Holdych, Robert Medved
Seattle University Law Review
Congratulations to the Law Review for its first thirty years and many thanks to each and every graduate who, during their tenure on the Law Review, made it what it is today. May your outstanding work be an inspiration for those whom follow. After all, look at what four students with typewriters and carbon paper did in 1975!
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Harry Potter, Ruby Slippers And Merlin: Telling The Client's Story Using The Characters And Paradigm Of The Archetypal Hero's Journey, Ruth Anne Robbins
Harry Potter, Ruby Slippers And Merlin: Telling The Client's Story Using The Characters And Paradigm Of The Archetypal Hero's Journey, Ruth Anne Robbins
Seattle University Law Review
This Article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. This Article adds to the discourse by beginning a conversation about what might be termed “applied legal storytelling.” The term pertains to ideas of how everyday lawyers can utilize elements of mythology as a persuasive technique in stories told directly to judges--either via bench trials or via legal writing documents such as briefs--on behalf of an individual client in everyday litigation. Parts II and III of this Article …
The Rush To The Goblin Market: The Blurring Of Quill'S Two Nexus Tests, H. Beau Baez Iii
The Rush To The Goblin Market: The Blurring Of Quill'S Two Nexus Tests, H. Beau Baez Iii
Seattle University Law Review
Part II of this Article begins with a brief introduction to sales and use taxes in the United States. Although these taxes are complementary in nature, they are treated differently for constitutional purposes. This Part then examines the Due Process Clause and Commerce Clause constraints on state taxation, which are animated by very different concerns. Next, this Part explores footnote eight in Quill to dispel the notion that Quill established a facts-and-circumstances test. The section concludes by discussing the problems lower courts have had in applying the Quill nexus tests. The primary problem encountered by the lower courts, exemplified by …
Designating The Dangerous: From Blacklists To Watch Lists, Daniel J. Steinbock
Designating The Dangerous: From Blacklists To Watch Lists, Daniel J. Steinbock
Seattle University Law Review
This Article aims to remedy that gap with respect to one important component of the country's current anti-terrorism strategy watch lists and to suggest some ways to avoid the worst excesses of the 1950s. A comparison of the two periods also serves to shed some light on the question of whether our institutions have learned from the experiences of the past in striking the balance between security and civil liberties. Part II of this Article gives a brief and broad-brush description of the McCarthy era blacklists and loyalty-security programs. Part III then describes the operation, bases for inclusion, and uses …
The Value Of Government Tort Liability: Washington State's Journey From Immunity To Accountability, Debra L. Stephens, Bryan P. Harnetiaux
The Value Of Government Tort Liability: Washington State's Journey From Immunity To Accountability, Debra L. Stephens, Bryan P. Harnetiaux
Seattle University Law Review
Part I of this Article traces Washington's history with the common law doctrine of government immunity from tort liability. It also identifies other distinct common law immunities protecting executive, legislative, and judicial functions-immunities that lay dormant during the reign of sovereign immunity. Part II discusses the legislature's broad waiver of sovereign immunity in 1961 and the legislature's subsequent reaffirmation of the waiver. It also notes isolated instances in which the legislature has partially restored immunity or otherwise limited tort liability. Part III addresses the development of case law interpreting the scope of government tort liability in light of the legislative …
Up And Down And Back Again: Troubled Childhood Childhood Notwithstanding, Washington's Stand Alone Estate Tax Deserves To Be Defended, Christine M. Mumford
Up And Down And Back Again: Troubled Childhood Childhood Notwithstanding, Washington's Stand Alone Estate Tax Deserves To Be Defended, Christine M. Mumford
Seattle University Law Review
This Comment evaluates the history of Washington's estate tax from the pre-2005 frozen scheme, through the Supreme Court's analysis and mandate in Estate of Hemphill v. State, and up to the legislation enacted in May 2005. Part II provides a background on EGTRRA and evaluates the extent of its changes nationwide. Part III critically reviews Washington's estate tax history, and examines both the seminal Initiative 402 and the legislative history supporting the shift away from federal conformation. Part IV analyzes how the court's 2005 ruling provided the catalyst for legislative change, and provides a summary of Hemphill and the arguments …
Thou Shalt Not Zone: The Overbroad Applications And Troubling Implications Of Rluipa's Land Use Provisions, Daniel P. Lennington
Thou Shalt Not Zone: The Overbroad Applications And Troubling Implications Of Rluipa's Land Use Provisions, Daniel P. Lennington
Seattle University Law Review
With five years of caselaw interpreting RLUIPA and a split among the courts regarding the breadth of the statute, now is an appropriate time to examine the statute's track record and consider its future. This Article will first examine RLUIPA's background, its text, and exactly what Congress intended when it passed the statute. Next, this Article will explain how courts have split on the application of RLUIPA's land use provisions, and in some cases, made it nearly impossible to zone churches, synagogues, mosques or any other religious land uses. Finally, this Article will propose a simple solution--an amendment to RLUIPA, …
Tegman V. Accident & Medical Investigations, Inc.: The Re-Modification Of Modified Joint And Several Liability By Judicial Fiat, Victor J. Torres
Tegman V. Accident & Medical Investigations, Inc.: The Re-Modification Of Modified Joint And Several Liability By Judicial Fiat, Victor J. Torres
Seattle University Law Review
This Note explores the Tegman decision in the context of joint and several liability between negligent and intentional actors within Washington State. Part II places Washington tort law into perspective, including the doctrine of joint and several liability, both before and after the Tort Reform Act of 1986. Part III discusses the Tegman decision, methods used in other jurisdictions for dealing with similar situations, and potential solutions to the problems posed by the Tegman holding. Finally, Part IV concludes and urges both the court to reconsider its ruling in Tegman and the legislature to clarify its intent.
Employer Vicarious Liability For Voluntary Relationships Between Supervisors And Employees, Carrie E. Fischesser
Employer Vicarious Liability For Voluntary Relationships Between Supervisors And Employees, Carrie E. Fischesser
Seattle University Law Review
It is somewhat radical to suggest that an employer should not be held vicariously liable for an employee's voluntary submission to sexual advances where the alleged harasser is a supervisor, and this approach is a marked departure from existing assumptions regarding sexual harassment. Most decisions and writings on the topic have imposed--under a traditional agency theory-- vicarious liability upon the employer for the sexually harassing conduct of its supervisors.4 Specifically, courts addressing this issue have held that “[t]here is no question that a ‘tangible employment action’ occurs when a supervisor abuses his authority to act on his employer's behalf by …
Washington's 2002 Parentage Act: A Step Backward For The Rights Of Nonmarital Children, Stacey Scriven Bernstein
Washington's 2002 Parentage Act: A Step Backward For The Rights Of Nonmarital Children, Stacey Scriven Bernstein
Seattle University Law Review
The purpose of this Comment is to encourage the Washington legislature to amend the WPA and to suggest potential avenues for challenging the Act if it is not amended. Part II of this Comment provides the historical and legal context necessary to analyze and critique the WPA. Part III discusses the WPA's serious shortcomings and explores one potential constitutional challenge to the Act. Part IV contains recommendations for amending the WPA.
Compassion Inaction: Why President Bush's Faith-Based Initiatives Violate The Establishment Clause, Martha A. Boden
Compassion Inaction: Why President Bush's Faith-Based Initiatives Violate The Establishment Clause, Martha A. Boden
Seattle University Law Review
The Administration's Faith-Based Initiatives would fail a constitutional challenge under the Establishment Clause of the First Amendment. Applying the three-pronged test developed in Lemon v. Kurtzman and Zelman v. Simmons-Harris, this Comment concludes that the Initiatives, (1) though purportedly secular, have been enacted for a sectarian purpose and are not neutral toward religion; (2) are coercive and fail to fulfill the condition of private choice because the rural poor, such as those in Franklin County, Washington, whom the Initiatives target, realistically cannot choose between non-religious and sectarian service providers; and (3) to the extent that Initiative funded programs can …