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Full-Text Articles in Law
You Can't Take It With You: Constitutional Consequences Of Interstate Gender-Identity Rulings, Julie A. Greenberg, Marybeth Herald
You Can't Take It With You: Constitutional Consequences Of Interstate Gender-Identity Rulings, Julie A. Greenberg, Marybeth Herald
Washington Law Review
Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the procreative (a man must be able to fertilize ovum and beget offspring, while a woman must be able to produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other half. …
Policing The Border Between Trademarks And Free Speech: Protecting Unauthorized Trademark Use In Expressive Works, Pratheepan Gulasekaram
Policing The Border Between Trademarks And Free Speech: Protecting Unauthorized Trademark Use In Expressive Works, Pratheepan Gulasekaram
Washington Law Review
Artists and other creators of expressive works often include trademarks and trademarked products as part of their works. They do so for a number of reasons, including lighthearted humor, critical cultural commentary, parody, or even simply to shock. In instances where such use is both unauthorized by and perceived as disparaging to the mark owner or the trademarked product, owners have attempted to sue under trademark law to enjoin the expressive use. This Article argues that, under a proper analysis of trademark law, precedent, and the free expression ideal enshrined in the First Amendment, mark owners should rarely, if ever, …
Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson
Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson
Washington Law Review
The Solomon Amendment denies federal funding to institutions of higher education that interfere with military recruiting on campus. In Forum for Academic & Institutional Rights v. Rumsfeld, the United States Court of Appeals for the Third Circuit examined the constitutionality of the Solomon Amendment using traditional First Amendment analysis. The court applied strict scrutiny and held that it was reasonably likely that the Solomon Amendment impermissibly infringed the First Amendment rights of an association of law schools and law faculty. This Note argues that the Solomon Amendment is a valid exercise of Congress's constitutionally-mandated duties to spend for the …
Risky Business: Directors Making Business Judgments In Washington State, Adam J. Richins
Risky Business: Directors Making Business Judgments In Washington State, Adam J. Richins
Washington Law Review
Section 23B.08.300 of the Revised Code of Washington (RCW) defines the general standards of conduct for directors in discharging corporate duties. The Washington State Legislature developed these standards to govern the manner in which directors perform their duties, rather than to impose liability on directors for negligent business decisions under the business judgment rule. Indeed, the business judgment rule, as defined by leading corporate-law jurisdictions and the American Bar Association, generally protects directors from liability associated with negligent business decisions so long as the director makes decisions in good faith, on an informed basis, without self-interest, and in accordance with …
Handling The Failure Of A Government-Sponsored Enterprise, Richard Scott Carnell
Handling The Failure Of A Government-Sponsored Enterprise, Richard Scott Carnell
Washington Law Review
Fannie Mae and Freddie Mac are huge, fast-growing, highly leveraged, lightly regulated, and susceptible to failure. Prudence calls for having a legal mechanism adequate for handling their failure. Yet no adequate insolvency mechanism currently exists for them. Unlike ordinary business firms, these government-sponsored enterprises (GSEs) cannot liquidate or reorganize under the Bankruptcy Code. If Fannie Mae or Freddie Mac became sufficiently troubled, its regulator could appoint a conservator to take control of the firm and attempt to restore its financial health. But by then the firm's problems could well have become too severe for the conservator to resolve. The conservatorship …
Jurisdiction And Merits, Howard M. Wasserman
Jurisdiction And Merits, Howard M. Wasserman
Washington Law Review
Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and …
Washington's Municipal Water Rights Bill Of 2003: Providing "Certainty And Flexibility" Or Violating The Separation Of Powers Doctrine?, Jason T. Morgan
Washington's Municipal Water Rights Bill Of 2003: Providing "Certainty And Flexibility" Or Violating The Separation Of Powers Doctrine?, Jason T. Morgan
Washington Law Review
The separation of powers doctrine limits the ability of the legislature to retroactively overrule judicial constructions of existing statutes. It is the province of the judiciary to interpret the law. Once a court interprets a statute, the legislature can only amend that statute prospectively. In the 1998 case of Theodoratus v. State Department of Ecology, the Supreme Court of Washington interpreted the Water Code to require that the proper measure of a water right is the amount of water actually beneficially used, and not the capacity of a water delivery system. In 2003, the Washington Legislature responded to the …
An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak
An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak
Washington Law Review
The Information Quality Act (IQA) directs the Office of Management and Budget (OMB) to issue guidelines to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by the agencies. The IQA directs agencies to develop administrative mechanisms whereby a person affected by agency-disseminated information may request correction of information that the person believes does not comply with the OMB's guidelines. The IQA is silent on whether judicial review is available to challenge an agency's decision to deny a "request for correction" (RFC). Regulated parties, legislators, scholars, and other groups have framed judicial review of …
Lingering Questions Regarding The Devise Of Black's Acre: How Many Witnesses Are Required To Prove The Execution Of A Lost Will?, Sarah Shirey
Washington Law Review
Prior to the 1994 revisions to Washington's lost will statute, courts required that execution of a lost will be proved by a preponderance of the evidence. In In re Estate of Black, the Washington State Supreme Court announced that under the revised lost will statute, execution of a lost will must be shown by clear, cogent, and convincing evidence. However, the Black court did not clearly define the quantum of proof necessary to meet this new burden. The dissent in Black read the majority opinion as creating a "two witness requirement," necessitating testimony from both attesting witnesses to meet …
The Not-So-Secret Ballot: How Washington Fails To Provide A Secret Vote For Impaired Voters As Required By The Washington State Constitution, Eric Van Hagen
The Not-So-Secret Ballot: How Washington Fails To Provide A Secret Vote For Impaired Voters As Required By The Washington State Constitution, Eric Van Hagen
Washington Law Review
Secrecy in voting ensures that elections represent the true will of the people by permitting a voter to freely express his or her convictions without fear of even the most subtle form of influence, ridicule, intimidation, corruption, or coercion. Article VI, section 6 of the Washington State Constitution protects this secrecy by requiring the legislature to provide every voter with a method of voting that will secure absolute secrecy in preparing and casting his or her ballot. To that end, Washington election law requires that new technology be implemented by January 1, 2006 to provide visually impaired voters with a …
Abay V. Ashcroft: The Sixth Circuit's Baseless Expansion Of Ina § 101(A)(42)(A) Revealed A Gap In Asylum Law, Wes Henricksen
Abay V. Ashcroft: The Sixth Circuit's Baseless Expansion Of Ina § 101(A)(42)(A) Revealed A Gap In Asylum Law, Wes Henricksen
Washington Law Review
In Abay v. Ashcroft, the United States Court of Appeals for the Sixth Circuit held that a noncitizen mother qualified for asylum based on her fear that her daughter, who qualified as a refugee, would undergo female genital mutilation if her daughter were to return to the family's home country. The Immigration and Nationality Act (INA) provides derivative asylum for spouses and children, but not parents, of refugees granted asylum. Parents of asylees must therefore independently qualify for asylum under INA § 101(a)(42)(A), which requires that the applicant show a well-founded fear of persecution if returned to the applicant's …
Crossing Eight Mile: Juries Of The Vicinage And County-Line Criminal Buffer Statutes, Brian C. Kalt
Crossing Eight Mile: Juries Of The Vicinage And County-Line Criminal Buffer Statutes, Brian C. Kalt
Washington Law Review
Several state statutes allow the state to choose the county in which to prosecute a person who allegedly committed a crime near a county line. Because these buffer statutes apply even in cases where the location of the crime is not in doubt, they are inappropriate on two levels. First, they are needless as a matter of policy; other statutes solve all of the problems that buffers purport to address, but without the detrimental effects. Second, they conflict with the principle—traditional in some states but constitutionally required in others—of trial by a jury of the vicinage, i.e., from the neighborhood …
Rebooting Cybertort Law, Michael L. Rustad, Thomas H. Koenig
Rebooting Cybertort Law, Michael L. Rustad, Thomas H. Koenig
Washington Law Review
Cyberspace provides an ideal legal environment for tortfeasors and online criminals because Internet Service Providers (ISPs) have no duty to mitigate harms caused by ongoing torts, crimes, and infringing acts. Courts have stretched Congress's express language in § 230 of the Communications Decency Act from the narrow purpose of immunizing ISPs as publishers to the expanded purpose of shielding them from all tort liability. This Article proposes imposing a limited duty of care on ISPs to remove or block ongoing tortious activities on their services when they have been given actual notice. This reform will harmonize American ISP liability law …
Where The Netcom Yardstick Comes Up Short: Courts Should Not Apply The Facts Of Netcom As An Example Of Intermediate And Transient Storage Under § 512(A) Of The Dmca, Sean Croman
Washington Law Review
Internet Service Providers (ISPs) risk substantial liability for passively contributing to subscriber-initiated acts of online copyright infringement. Cognizant of this problem, courts and Congress have taken differing approaches to limiting ISP liability. The Netcom court established that ISPs could store infringing material for eleven days without incurring liability for direct infringement, but did not similarly rule out liability for other forms of infringement. The Digital Millennium Copyright Act (DMCA) subsequently advanced the law of copyright by strengthening the protections enjoyed by copyright holders whose works face exploitation online, subject to four activity-specific "safe harbor" limitations on liability. For example, § …
An Unwarranted Intrusion: The Constitutional Infirmities Of Washington's Dna Collection Law, Erin Curtis
An Unwarranted Intrusion: The Constitutional Infirmities Of Washington's Dna Collection Law, Erin Curtis
Washington Law Review
Washington State law requires all convicted felons to submit a biological sample for purposes of DNA testing. Washington State courts have upheld this law as a permissible search under the Fourth Amendment to the United States Constitution. Article I, section 7 of the Washington State Constitution, however, provides broader protections against governmental intrusion than does its federal counterpart. Under the state constitutional provision, law enforcement officials may disturb a citizen's private affairs only if authority of law supports the disturbance. A statute alone cannot provide the requisite authority; rather, the search prescribed must either be pursuant to a warrant or …
Defining The Relevant Forum: The United States Postal Service Constitutes A Single Forum For Communication, Melissa C. Manke
Defining The Relevant Forum: The United States Postal Service Constitutes A Single Forum For Communication, Melissa C. Manke
Washington Law Review
The United States Postal Service fulfills a vital public function by enabling people to communicate in an effective and efficient way. The United States Supreme Court has firmly established the use of the mails as a free speech right guaranteed by the First Amendment. Courts apply a three-part forum analysis when analyzing First Amendment challenges to restrictions on the use of the mail system. This analysis requires courts to define the forum to which the plaintiff seeks access, to determine if that forum is public or nonpublic, and to apply the level of scrutiny proper to the type of forum …
Does Sex Matter? Washington's Defense Of Marriage Act Under The Equal Rights Amendment Of The Washington State Constitution, Thomas C. Schroeder
Does Sex Matter? Washington's Defense Of Marriage Act Under The Equal Rights Amendment Of The Washington State Constitution, Thomas C. Schroeder
Washington Law Review
Washington State's Defense of Marriage Act (DOMA) defines marriage as a civil contract between a male and a female and explicitly bans marriages between members of the same sex. Yet the Equal Rights Amendment (ERA) to the Washington State Constitution prohibits laws that classify by sex. In the three decades since the enactment of the ERA, the Washington State Supreme Court has recognized only two narrow exceptions to the ERA's ban of sex-based classifications: laws based on anatomical differences between the sexes and laws created to mandate equality between men and women. Whether the DOMA effects a sex-based classification and …
Proving Cause In Fact Under Washington's Consumer Protection Act: The Case For A Rebuttable Presumption Of Reliance, Jennifer Rust Muray
Proving Cause In Fact Under Washington's Consumer Protection Act: The Case For A Rebuttable Presumption Of Reliance, Jennifer Rust Muray
Washington Law Review
Under Washington's Consumer Protection Act (CPA), parties must prove proximate cause to prevail in a private cause of action for damages. Proximate cause requires proof of cause in fact and legal causation. Traditionally, in a case in which a person has disseminated an affirmative representation in an attempt to induce a consumer to purchase a product, reliance provides evidence of cause in fact. Washington courts have not decided, however, which party has the burden of proving or disproving reliance. They also have not decided whether indirect proof of reliance is sufficient for proving cause in fact. This Comment argues that …
Repercussions Of Crawford V. Washington: A Child's Statement To A Washington State Child Protective Services Worker May Be Inadmissible, Heather L. Mckimmie
Repercussions Of Crawford V. Washington: A Child's Statement To A Washington State Child Protective Services Worker May Be Inadmissible, Heather L. Mckimmie
Washington Law Review
Before the landmark United States Supreme Court case of Crawford v. Washington, Washington State courts often admitted statements of unavailable alleged child abuse victims through the hearsay testimony of Washington State Child Protective Services (CPS) workers. In Crawford, the U.S. Supreme Court announced a new "testimonial" standard for the admissibility of out-of-court statements. The Court held that the Confrontation Clause of the Sixth Amendment bars testimonial out-of-court statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. The Court did not clearly define the term testimonial, which left the matter open …
Beyond The Little Dutch Boy: An Argument For Structural Changes In Tax Deduction Classification, Jeffrey H. Kahn
Beyond The Little Dutch Boy: An Argument For Structural Changes In Tax Deduction Classification, Jeffrey H. Kahn
Washington Law Review
One of the most active disputes in tax law today is the question of the proper tax consequences for a successful plaintiff, a portion of whose taxable damage award is paid to his or her attorney pursuant to a contingent fee arrangement. At issue is whether the plaintiff is taxable on the portion of the award that is payable to the attorney. One aspect of this problem was resolved prospectively by the adoption of the American Jobs Creation Act of 2004, but the problem continues to exist in other areas. The United States Supreme Court resolved a split in the …
Regulating The Mother's Milk Of Politics: Why Washington's Campaign Finance Law Constitutionally Prohibits State Parties From Spending Soft Money On Issue Ads, Scott Holleman
Washington Law Review
The possibility that elected officials may exchange their votes on pending legislation for donations to help their re-election campaigns poses a serious threat to democratic government. To alleviate this risk, governments at the state and national levels regulate how politicians finance their campaigns. However, these regulatory efforts have been challenged on First Amendment grounds. In Buckley v. Valeo, the United States Supreme Court upheld certain campaign contribution limits, while declaring certain expenditure limits unconstitutional. The Washington State Supreme Court relied on the Buckley opinion in Washington State Republican Party v. Washington Public Disclosure Commission, when it ruled that …
"Straight Stealing": Towards An Indigenous System Of Cultural Property Protection, Angela R. Riley
"Straight Stealing": Towards An Indigenous System Of Cultural Property Protection, Angela R. Riley
Washington Law Review
Incidents involving theft of indigenous peoples' traditional knowledge and the blatant appropriation of culture have become more widely acknowledged in recent decades. It is now apparent that international, national, and tribal laws must work together to protect the cultural property of indigenous groups. However, tribal law, which provides vital cultural context, must serve as the foundation. Unlike top-down legal systems, tribal laws reflect tribal economic systems, cultural beliefs, and sensitive sacred knowledge in nuanced ways that national and international regimes simply cannot. Accordingly, this Article offers two central reasons why the development of tribal law is critical for indigenous peoples …
Less Is Not More: Evidence Of Mere Proximity In State V. Gurske Does Not Render The Defendant Armed Under Washington's Deadly Weapon Special Verdict Statute, Kelly B. Fennerty
Less Is Not More: Evidence Of Mere Proximity In State V. Gurske Does Not Render The Defendant Armed Under Washington's Deadly Weapon Special Verdict Statute, Kelly B. Fennerty
Washington Law Review
In State v. Gurske, Division III of the Washington State Court of Appeals affirmed the application of Washington State's Deadly Weapon Special Verdict statute to Samuel Gurske's conviction for possession of methamphetamine. The Deadly Weapon Special Verdict statute enhances the sentence of a defendant who commits a crime while "armed" with a deadly weapon. In Gurske, the parties stipulated that a backpack holding Gurske's pistol and drugs lay within arm's reach of the driver's position. From this fact, the trial judge determined that Gurske was armed while he was in possession of methamphetamine. Under Washington State Supreme Court …