Law Commons^™

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar

Washington Law Review

Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Theseus In The Labyrinth: How State Constitutions Can Slay The Procedural Minotaur, Marcus A. Gadson

Washington Law Review

Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee “[t]hat all courts shall be open, and every person, for an injury done him in his person, property …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

Talking Back In Court, M. Eve Hanan

Washington Law Review

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important …

Settling Significant Cases, Jeffrey R. Seul

Washington Law Review

Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which …

Federal Courts And Attorney Disqualification Motions: A Realistic Approach To Conflicts Of Interest, Linda Ann Winslow

Washington Law Review

The motion to disqualify an adversary's attorney has become the newest weapon in a litigator's motion arsenal. Disqualification motions alleging conflicts of interest can result in a great advantage to the movant by denying the opposition their choice of counsel, or by delaying the proceedings for several weeks or months. The attractiveness of the attorney disqualification motion as a strategic weapon is enhanced by the failure of the courts to impose sanctions against attorneys who bring frivolous disqualification motions. This Comment examines the treatment in federal courts of motions made to disqualify an adversary attorney and the relevant rules of …

Washington's Retreat From Civil Rights Enforcement—Meyer V. University Of Washington, 105 Wn. 2d 847, 719 P.2d 98 (1986), Jack Warner Widell

Washington Law Review

Congress passed the Civil Rights Attorneys' Fees Awards Act of 1976 (the Fees Act) to provide fees sufficient to attract competent counsel for civil rights plaintiffs, and thereby to promote private enforcement of civil rights laws. Ten years later, in Meyer v. University of Washington, the Washington Supreme Court transformed the Fees Act into a shield for civil rights violators which will deter bona fide civil rights claims. This Note reviews the history of the Fees Act, critiques the Meyer court's analysis of the Act, and proposes alternate methods of evaluating claims of prevailing defendants. The Meyer court misinterpreted the …

The Lawsuit Lottery, By Jeffrey O'Connell (1979), Cornelius J. Peck

Washington Law Review

The dustjacket for this already provocatively entitled book continues with the additional legend: "Only the Lawyers Win-Most people get nothing. A few get too much. A proposal for reform." This addition to the title of the book gives appropriate, if not exact, warning that a reader is about to fall under the influence of a spell-binding author, whose sense of theatre equals that of the lawyers whose exploits he exposes. It does not, however, prepare one for his serious analysis, arguments, and proposals concerning how law should distribute the losses of accidental injuries which occur in our society.

The Lawsuit Lottery, By Jeffrey O'Connell (1979), Cornelius J. Peck

Washington Law Review

The dustjacket for this already provocatively entitled book continues with the additional legend: "Only the Lawyers Win-Most people get nothing. A few get too much. A proposal for reform." This addition to the title of the book gives appropriate, if not exact, warning that a reader is about to fall under the influence of a spell-binding author, whose sense of theatre equals that of the lawyers whose exploits he exposes. It does not, however, prepare one for his serious analysis, arguments, and proposals concerning how law should distribute the losses of accidental injuries which occur in our society.

Jury Selection—Key-Man System Eliminated, Anon

Washington Law Review

Defendant was indicted by a federal grand jury for perjury. The jury commissioner solicited names of prospective jurors from various "key-men," community leaders who had been instructed in the qualifications which the jury commissioner felt prospective jurors should have. On appeal the Court of Appeals for the Fifth Circuit dismissed the indictment. Held: Key-man jury selection violates the standards for jury selection prescribed by the Civil Rights Act of 1957. Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966).

Practice And Procedure, William S. Stinnette, John A. Gose, Vincent L. Gadbow

Washington Law Review

Covers cases on remedies for the failure to reveal information in pretrial discovery (Stinnette), on the trial court's duty to give reasons for denying a new trial, on the failure to administer the oath to jurors prior to voir dire, on the appealability of a suspended sentence when a guilty plea precludes appeal (Gose), on changes in the rules for appellate briefs regarding assignment of error, and on other changes to the appellate rules (Gadbow).

Some Reflections On The Trial Of A Lawsuit, Thomas F. Murphy

Washington Law Review

I didn't know when I received your invitation what subject would be most interesting to talk about. I have come to the conclusion that I will talk to you about my experiences in the trial of a law suit, and I ask you to measure that experience by the short time that I have been a lawyer. Because what I propose to do is not to speak to you, say from Mount Olympus, but to speak as I may as a friend, among friends, and then perhaps, if we have time, to open the floor to any questions you care …

The Preparation And Trial Of A Lawsuit, John J. Kennett

Washington Law Review

It is at once obvious that the subject matter encompassed by the above title is so vast that the most that can possibly be done here is to make a few suggestions that may prove helpful to the younger and more inexperienced members of the bar. It is with that thought in mind, and with a profound sense of inadequacy, that I offer the following suggestions. It likewise should be noted that many of the suggestions here made were, in the first instance, the brain children of others—I have simply adopted these brain children who were given birth by older, …

Continuances In Washington, Phyllis A. Kemp

Washington Law Review

The granting or denying of a continuance is a matter within the sound discretion of the trial court, to be reversed only for a manifest abuse of discretion. This does not mean, of course, that the trial judge can decide by the toss of a coin whether to grant or deny a motion for continuance. He is under a positive duty to exercise his discretion wisely, keeping in mind the relative considerations of speedy justice as against the right to present all of the evidence available in support of one's case. A study of the cases will disclose some of …

Recollection On The Witness Stand, Harwood A. Bannister

Washington Law Review

The art of witness interrogation is difficult where the witness on the stand is unable to narrate the event which he has observed because of some present defect in his recollection. In such case there are the following possibilities: A. The impressions once made upon the mind of the witness may be revived by some means. This is "present recollection revived". B. If a record has been made of the witness' impressions, such record may come in as evidence if certain requirements be met. This is "past recollection recorded". The purpose of this comment is to collect the Washington cases …

Action Against Receiver—Equitable Defenses; Bank-Depositor Relationship—Three Doctrines Relating To Endorsements; Constitutional Law—State Taxation—Interstate Commerce; Evidence—Spontaneous Declarations Of Present Pain; Corporations—Watered Stock; Workmen's Compensation—Compensable Employment—Emergency Relief Work; Landlord And Tenant—Crop Share Rental—Interest Of Landlord In Tenant's Conflict With Seed Company, C. A. C.

Washington Law Review

No abstract provided.

Attachment—Failure Properly To Index Writ As Affecting Constructive Notice; Criminal Law—Indictment And Information—Motion To Set Aside Judgment After Conviction Pleading Statute Of Limitations; Damages—Breach Of Agency—Burden Of Proof; Executors And Administrators—Right To Appoinment—Testamentary Selection—Effect; Mechanics' Liens—Statute Of Limitations On Filing Of Liens—Completion And Abandonment; Taxation—Exemption Of Property Of Municipal Corporations—Power To Tax; Workman's Compensation—Status Of Widow Who Married Injured Workman Subsequent To Time Of Injury, J. J. L.

Washington Law Review

No abstract provided.

Agency—Liability Of Undisclosed Principal For Unauthorized Acts Of Agent; Constitutional Law—Delegation Of Legislative Power To A Foreign Body; Evidence—Parol Evidence Rule—Collateral Agreements, E. G. N.

Washington Law Review

No abstract provided.

Agency—Liability Of Undisclosed Principal For Unauthorized Acts Of Agent; Constitutional Law—Delegation Of Legislative Power To A Foreign Body; Evidence—Parol Evidence Rule—Collateral Agreements, E. G. N.

Washington Law Review

No abstract provided.

Improper Service Of Notice On Minor Heirs In Administration Sale—Effect On Validity Of Sale—Notice Jurisdictional; Inheritance Tax—Applicability Of Equitable Conversion; Mortgages—Refusal Of Confirmation—Inadequacy Of Price Bid—Effect Of Financial Depression; New Trial—Impeachment Of Verdict By Affidavit Of Juror—Compromise Verdict; Usury—Intent Necessary To Make Sale On Credit Usurious, R. T. Y.

Washington Law Review

No abstract provided.

Administrative Officer—Reliance Upon Construction Of Statute By; Insurance—False Statement In Application—Intent To Deceive—Evidence; Landlord And Tenant—Duty Of Landlord To Furnish Heat, Water, Elevator Service, Etc.; Real Estate Agents—Necessity For Authorization In Writing; Real Property—Recording Act—Priorities—Recent Statutory Change; Specific Performance—Community Property; Taxation—Inheritance Taxes—Exemptions—Proceeds Of Life Insurance Policies; Water And Watercourses—Irrigation Districts—Nature And Status As Municipal Corporations—Special Legislation, C. P. Z.

Washington Law Review

No abstract provided.

Constitutional Law—Construction Of Constitutional Provisions; Constitutional Law—Due Process—Closing Hours Of Barber Shops; Criminal Law—Argument And Conduct Of Counsel—Death Sentence; Divorce—Power Of Court To Modify Decree As To Alimony; Insurance—Fidelity Bonds—Recovery For Defalcation; Lis Pendens—Affect On Holders Of Unrecorded Deeds Or Encumberances, L. B. D.

Washington Law Review

No abstract provided.

Duress—Busines Compulsion—Recovery Of Payments; Husband And Wife—Confidential Communications; Husband And Wife—Liability For Expenses Of Last Illness And Funeral; Statutes—Construction—Emergency Relief Legislation; Torts—Negligence—Last Clear Chance, G. V. P.

Washington Law Review

No abstract provided.

Assignments—Future Wages—Under Contract, Employment Or Possible Contract Or Employment; Banks—Right Of State Banks To Procure Deposit Insurance; Constitutional Law—Taxation—Corporate Franchises; Contracts—Third Party Beneficiaries—Sureties On Building Contracts; Corporations—Remedies Of Receiver In Collection Of Unpaid Stock Subscriptions; Estoppel—Appointment Of Receiver; Resulting Trusts—Presumptions—Payment Of The Purchase Price—Effect Of Relationship; School Districts—Liability For Negligence;, C. P. Z.

Washington Law Review

No abstract provided.

Injunction—Removal Of Encroachments By An Adjoining Owner; Injunction—Successive Appeals As Nuisance; Landlord And Tenant—Action For Failure To Deliver Premises; Landlord And Tenant—Forfeiture Clause In Lease; Shipping—Limitation Of Liability Of Shipowners; Vendor And Purchasee—Misrepresentations By The Vendor Or His Agent; Workmen's Compensation Act—Who Is Employer, H. H.

Washington Law Review

No abstract provided.