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Articles 1 - 30 of 35
Full-Text Articles in Law
Straight-Time Overtime And Salary Basis: Reform Of The Fair Labor Standards Act, Garrett Reid Krueger
Straight-Time Overtime And Salary Basis: Reform Of The Fair Labor Standards Act, Garrett Reid Krueger
Washington Law Review
The Fair Labor Standards Act (FLSA) was passed in 1938 in response to oppressive working conditions and a depressed economy. While FLSA's overtime provisions may have been responsive to the workplace of the 1930s, they are now outdated in the flexible, service-oriented economy of the 1990s and in need of revision. FLSA's salary basis test and corresponding inconsistent treatment of straight-time overtime payments are examples of excessively wooden provisions. Originally adopted to separate well-compensated white-collar employees from blue-collar line workers in need of statutory protection, the salary basis test no longer effectively serves as a gatekeeper for FLSA's overtime provisions. …
What To Do When There's No "I Do": A Model For Answering Damages Under Promissory Estoppel, Neil G. Williams
What To Do When There's No "I Do": A Model For Answering Damages Under Promissory Estoppel, Neil G. Williams
Washington Law Review
Since its inception in the seventeenth century, the common-law action for breach of promise to marry has been the subject of recurrent legal debates. Beginning in the 1930s, some states began passing statutes that abolished the action altogether. Even so, today about half of American jurisdictions retain the breach-of-promise action in some form. This Article advocates a compromise that is not currently the law in any American jurisdiction: parties who breach promises to marry should be liable for damages, but only to the extent they have induced reliance by those to whom they were formerly engaged. Under this proposed model, …
Without Distinction: Recognizing Coverage Of Same-Gender Sexual Harassment Under Title Vii, Trish K. Murphy
Without Distinction: Recognizing Coverage Of Same-Gender Sexual Harassment Under Title Vii, Trish K. Murphy
Washington Law Review
Federal court decisions conflict regarding the applicability of Title VII of the Civil Rights Act of 1964 to sexual harassment cases where the alleged harasser and victim are members of the same gender. This Comment examines the courts' treatment of same-gender sexual harassment claims and argues that same-gender sexual harassment claims fall within the purview of Title VII as impermissible discrimination. In reaching this position, this Comment demonstrates that Title VII lacks gender-based limitations. It then argues that no valid justification exists for distinguishing between same-gender sexual harassment and sexual harassment involving members of different genders. Finally, this Comment suggests …
Pro-Choice Taxation: Consistent Tax Treatment Of Stock Redemptions At Divorce, Richard E. Fogg
Pro-Choice Taxation: Consistent Tax Treatment Of Stock Redemptions At Divorce, Richard E. Fogg
Washington Law Review
The Ninth Circuit and the Tax Court have disagreed on the circumstances in which nonrecognition of gain under § 1041 of the Internal Revenue Code may extend to a spouse who redeems stock at divorce. This conflict is representative of a larger problem surrounding the question of which spouse to tax on the redemption of stock incident to divorce. This Comment examines the tension between the policy underlying § 1041 and the temporary regulations, and identifies the tension as the cause of inconsistent judicial decisions. This Comment also proposes an amendment to the Code that provides both certainty to the …
Pinpointing The Beginning And Ending Of A Temporary Regulatory Taking, Gregory M. Stein
Pinpointing The Beginning And Ending Of A Temporary Regulatory Taking, Gregory M. Stein
Washington Law Review
The Supreme Court has held that if a government body regulates land to such an extent that it effectively takes the property, then it must pay just compensation to the landowner. Even if the government elects to rescind the offending regulation, it still must provide compensation to the owner for the duration of the regulatory taking. Unfortunately, the Court has had no occasion to determine when such temporary regulatory takings become effective and when they terminate, and the lower courts only rarely have reached these difficult remedial questions. This Article seeks to pinpoint precisely when a temporary regulatory taking begins …
The Indian Child Welfare Act: Guiding The Determination Of Good Cause To Depart From The Statutory Placement Preferences, Denise L. Stiffarm
The Indian Child Welfare Act: Guiding The Determination Of Good Cause To Depart From The Statutory Placement Preferences, Denise L. Stiffarm
Washington Law Review
Since 1978, custody proceedings involving Indian children have been subject to the provisions of the Indian Child Welfare Act. The substantive provisions of the Act set forth placement preferences for state courts to follow when determining adoptive, preadoptive, and foster care placement of Indian children. While the Act directs that the preferences are to be followed in the absence of good cause to the contrary, it does not include a corresponding definition of what constitutes good cause. The result under this vague standard has been a lack of uniformity in state court treatment of the "good cause" determination. This Comment …
A Comparison Of Processes For Reforming Migration Laws In Transitional States: China, Kazakhstan, And Albania, James A.R. Nafziger
A Comparison Of Processes For Reforming Migration Laws In Transitional States: China, Kazakhstan, And Albania, James A.R. Nafziger
Washington Law Review
This article will highlight the problems confronting China, Kazakhstan, and Albania as well as the divergent agencies and systems for drafting, enacting and otherwise reforming their migration laws. The institutional processes of reform are particularly noteworthy. A comparison of them among the three countries suggests dominance by political and cultural determinants, along with administrative and economic issues, in forming migration policy and law within modem legal systems. This insight helps explain the constraints on the efficacy of administrative tinkering in improving the migration laws of the United States and other countries.
A Lion In The Path? The Influence Of International Law On The Immigration Policy Of The United States, Joan Fitzpatrick, William Mckay Bennett
A Lion In The Path? The Influence Of International Law On The Immigration Policy Of The United States, Joan Fitzpatrick, William Mckay Bennett
Washington Law Review
This article explores the place of international law in the immigration policy process in four settings: (1) the tentative and ultimately failed efforts of the executive and the judiciary to keep Congress within the bounds of internationally law-abiding conduct with respect to Chinese exclusion; (2) the almost complete disregard by Congress and the executive of international norms concerning health-related travel restrictions relating to HIV/AIDS; (3) Congressional inaction in the face of executive and judicial hypocrisy toward fundamental principles of refugee law in relation to interdiction of asylum-seekers; and (4) the emergence of a perverse canon presuming the abrogation of uncodified …
An Essay On Immigration Politics, Popular Democracy, And California's Proposition 187: The Political Relevance And Legal Irrelevance Of Race, Kevin R. Johnson
An Essay On Immigration Politics, Popular Democracy, And California's Proposition 187: The Political Relevance And Legal Irrelevance Of Race, Kevin R. Johnson
Washington Law Review
My contribution to the Symposium considers how Proposition 187 fits into the peculiar politics of immigration, which in many ways are without parallel. The hope is to shed light on the dynamics culminating in the passage by the California electorate of a measure that in time may prove to be a watershed in immigration policymaking. In analyzing Proposition 187, this Article generally considers the risks posed to discrete and insular minorities by the initiative process and the difficulties in mounting legal challenges under current constitutional doctrine to democratic subordination of minority interests through initiatives. It raises serious questions about whether …
The Role Of Interest Groups In Policy Formulation, Warren R. Leiden
The Role Of Interest Groups In Policy Formulation, Warren R. Leiden
Washington Law Review
In the immigration field, as in most areas of national policy, advocacy groups play an important and sometimes essential role in the policymaking process. Often derided as "special interests" and accused of opposing the "public interest," advocacy organizations are in fact manifestations of the public and give voice to the concerns of specific segments of it. This article will examine how advocacy groups determine policy positions and activities and the nature of their role in the making of public policy on immigration matters.
The Making Of United States Refugee Policy: Separation Of Powers In The Post-Cold War Era, Stephen H. Legomsky
The Making Of United States Refugee Policy: Separation Of Powers In The Post-Cold War Era, Stephen H. Legomsky
Washington Law Review
Thus, there are three features of immigration policy to consider in combination: First, its repercussions are powerful and widespread. Second, with so many conflicting priorities to juggle, the decisions depend heavily on personal values and ideologies. Third, with so many different interest groups in the mix, decisions on immigration policy tend to be shamelessly vulnerable to constituent pressures. What all three factors have in common is that they accentuate the importance of choosing the right decisionmaker. The high impact means that much is at stake, and the last two features mean that the results will often turn on who the …
Making Asylum Policy: The 1994 Reforms, David A. Martin
Making Asylum Policy: The 1994 Reforms, David A. Martin
Washington Law Review
The asylum reforms adopted in 1994 provide an intriguing glimpse into the making of immigration policy in the media spotlight—an intermittent spotlight, in this policy domain, with a short attention span. My primary aim here is to capture the history of those reforms, as it appeared to an outsider who was invited to play an insider's role as a nearly full-time consultant to the Immigration and Naturalization Service (INS) during certain crucial months in summer and fall 1993. The account should also help clarify certain central features of the reforms and offer some insight into key decisions in their shaping. …
In Re Epstein: A Case Of Patent Hearsay, Dennis M. De Guzman
In Re Epstein: A Case Of Patent Hearsay, Dennis M. De Guzman
Washington Law Review
In In re Epstein, the Federal Circuit held that the United States Patent and Trademark Office may rely on hearsay evidence to reject patent applications. This Note examines the effects of the Epstein decision against the backdrop of software patenting and how administrative agencies have traditionally approached the problem of evaluating hearsay. It argues that the Patent and Trademark Office should articulate standards when scrutinizing hearsay in order to provide guidance to examiners and applicants, to prevent placing an unfair burden on applicants, and to thwart the abuse of the patent system.
The Presumption Of Innocence Imperiled: The New Federal Rules Of Evidence 413-415 And The Use Of Other Sexual-Offense Evidence In Washington, Jeffrey G. Pickett
The Presumption Of Innocence Imperiled: The New Federal Rules Of Evidence 413-415 And The Use Of Other Sexual-Offense Evidence In Washington, Jeffrey G. Pickett
Washington Law Review
The U.S. Congress has provisionally enacted three new federal rules of evidence (FRE). In cases of sexual assault or child molestation, FRE 413-415 allow the use, for any relevant purpose, of sexual assault or child molestation evidence not charged in the indictment or information. The new rules would operate in contravention of the traditional prohibition against using evidence of other misconduct for the purpose of proving that the defendant acted in conformity with a particular character trait on the occasion in question. This Comment surveys the arguments for and against the proposed changes. It concludes that Washington should not elect …
Too Much Of A Good Thing? Public Access To Medical Research After Paws V. U.W., Russell K. Yoshinaka
Too Much Of A Good Thing? Public Access To Medical Research After Paws V. U.W., Russell K. Yoshinaka
Washington Law Review
In Progressive Animal Welfare Society v. University of Washington, the Washington State Supreme Court held that Washington's Public Disclosure Act mandated public access to unfunded medical research grant proposals submitted by researchers to public institutions within the state. This holding conflicts with federal policy and the current national standard of maintaining full confidentiality of research grant proposals until after research actually is funded. This Note examines the harmful impact that this decision will have on medical research conducted in Washington and the implications for Washington's biotechnology industry. It recommends that both the Washington legislature and Congress act to ensure that …
A Shifting Barrier? Difficulties Obtaining Patent Infringement Damages In Japan, Scott K. Dinwiddie
A Shifting Barrier? Difficulties Obtaining Patent Infringement Damages In Japan, Scott K. Dinwiddie
Washington Law Review
American economic interests previously have criticized the Japanese patent system as a trade barrier. Recent agreements between the United States and Japan should help reduce the difficulties Americans have had obtaining patents in Japan. However, Americans who acquire Japanese patents are likely to be disappointed and discouraged by the formal protection afforded their new property. The patent enforcement system in Japan provides limited judicial remedies. Equitable relief is difficult to enforce. The full value of monetary damages is extremely difficult to prove, and the possibility for equitable recovery of damages in excess of those proved does not exist. The cost …
Judicial Review Of "Pattern And Practice" Cases: What To Do When The Ins Acts Unlawfully, Robert Pauw
Judicial Review Of "Pattern And Practice" Cases: What To Do When The Ins Acts Unlawfully, Robert Pauw
Washington Law Review
Many such pattern and practice cases have been filed :in the past, and we can expect that such cases will continue to arise in the future. At this point, it is unsettled whether and under what circumstances district courts have jurisdiction to hear pattern and practice cases. In this article, I consider the case law that has developed in the context of the legalization program. In part I, I describe the legalization program established by Congress and explain the unlawful manner in which the program was implemented by the Immigration Service, adversely affecting hundreds of thousands of applicants. In part …
The Admissibiity Of Inculpatory Statements In Washington Under The Rule For Declarations Against Interest After Williamson V. United States, Julianna Gortner
The Admissibiity Of Inculpatory Statements In Washington Under The Rule For Declarations Against Interest After Williamson V. United States, Julianna Gortner
Washington Law Review
Washington courts hold that where a statement by an unavailable declarant, offered in the trial of a third party inculpated by the statement, is predominantly disserving to the declarant's penal interest, the statement is admissible under the hearsay exception for declarations against interest. Federal courts have split on the admissibility of such declarations, with some courts holding that any non-disserving portions must be severed and excluded. In Williamson v. United States, the United States Supreme Court narrowed the scope of Federal Rule of Evidence 804(b)(3) on declarations against interest and held that only the individual portions of such statements that …
State V. Young And The New Test For Privacy In Washington, Michael M. Suga
State V. Young And The New Test For Privacy In Washington, Michael M. Suga
Washington Law Review
In State v. Young, the Washington Supreme Court determined that the warrantless use of an infrared thermal detection device on the home of a suspected marijuana grower was a violation of Article I, Section 7 of the Washington State Constitution. This Note argues that the court's test for determining privacy rights under Article I, Section 7 is flawed in form and fails to achieve those goals set forth by the court. It suggests an alternative test for Article I, Section 7 privacy rights as well as a remedial prerequisite standard of proof in cases involving minimally intrusive surveillance techniques.
Taking A Byte Out Of Crime: E-Mail Harassment And The Inefficacy Of Existing Law, Gene Barton
Taking A Byte Out Of Crime: E-Mail Harassment And The Inefficacy Of Existing Law, Gene Barton
Washington Law Review
Computer abuse is advancing as quickly as computer technology. The laws, however, have yet to address computer harassment to a significant degree. Existing law is insufficient, and current efforts fall short of what is needed. This Comment identifies the need for new law, examines the shortcomings of what has been tried to date, and proposes general concepts for a comprehensive computer harassment law. This Comment concludes with a proposal for specific legislation for the state of Washington.
Enough Is Enough: Pre Se Constructive Discharge For Victims Of Sexually Hostile Work Environments Under Title Vii, Sarah H. Perry
Enough Is Enough: Pre Se Constructive Discharge For Victims Of Sexually Hostile Work Environments Under Title Vii, Sarah H. Perry
Washington Law Review
In Title VII sexual harassment cases based on hostile work environments, application of the constructive discharge doctrine imposes unfair burdens on claimants. A finding of constructive discharge requires a greater severity or pervasiveness of harassment than that required for finding a hostile work environment. This forces many hostile environment victims to remain in abusive and intolerable conditions because they cannot afford to resign. Unless found constructively discharged by their employers, victims who quit their jobs cannot recover back pay for the period between resignation and judgment. The incorrect and inconsistent application of the constructive discharge doctrine in sexually hostile environment …
The Rhetoric Of Innocence, William S. Laufer
The Rhetoric Of Innocence, William S. Laufer
Washington Law Review
This Article promotes the serious consideration of innocence in the criminal process, and gives meaning to the rhetoric surrounding the presumption of innocence. The first part illustrates the near irrelevance of innocence in an accusatorial system of justice where burdens of proof require proof of guilt The second and third parts of the Article discuss the meaning of the presumption of innocence. It is argued that legislatures and courts have ignored the tension between the conflicting goals of the criminal process by thinking of the presumption of innocence as a legal presumption. As a legal presumption, its effects are indistinguishable …
"Speculative" Antitrust Damages, Roger D. Blair, William H. Page
"Speculative" Antitrust Damages, Roger D. Blair, William H. Page
Washington Law Review
The most important antitrust penalties are treble damage awards based on the individual harms that violations cause. For these penalties to function as an economically rational deterrent, there must be a practical mechanism for proving individual harm, and for distinguishing such harm from "speculation." In this article, the authors present an account of that mechanism. First, they argue that the law's measure of antitrust damages is based on a standard of net individual harm that is qualified in certain cases by a principle of net social harm. Net harm is measured by the difference between the plaintiff's actual condition (given …
Exceptional Sentencing In Washington After State V. Freitag: Pushing The Limits Of The Sentencing Reform Act, Lisa K. Strom
Exceptional Sentencing In Washington After State V. Freitag: Pushing The Limits Of The Sentencing Reform Act, Lisa K. Strom
Washington Law Review
In 1981 the Washington state legislature enacted the Sentencing Reform Act (SRA) with the intent of reducing disparity in sentencing through the implementation of presumptive sentencing ranges. The SRA authorizes judges to depart from the presumptive range by imposing an exceptional sentence if appropriate mitigating or aggravating factors exist. Since 1981, virtually all courts have determined a factor's appropriateness by considering its relation to the factual nature of the crime itself. In State v. Freitag, however, the Washington Court of Appeals recently held that a trial court may rely on factors which do not directly relate to the nature …
Strict Compliance With Marine Insurance Contracts: Conflicting Rules In The Ninth Circuit, Rhea D. Pappas-Ward
Strict Compliance With Marine Insurance Contracts: Conflicting Rules In The Ninth Circuit, Rhea D. Pappas-Ward
Washington Law Review
Under the federal admiralty "strict compliance rule," a policy of marine insurance is voided by an insured vessel owner's failure to comply with express policy terms or "warranties." Although recognized and applied by a majority of the federal circuits, the strict compliance rule has been improperly ignored by a handful of district courts within the Ninth Circuit. Instead, by misapplying the holding of Wilburn Boat v. Fireman's Fund Insurance Co., a 1955 Supreme Court case, and by ignoring the Ninth Circuit's interpretation of Wilburn Boat in Bohemia, Inc. v. Home Insurance Co., these district courts have turned to …
Washington Courts Get Stingy: Improper Denial Of Attorney's Fees Under 42 U.S.C. §§ 1983 And 1988, Brian Buckley
Washington Courts Get Stingy: Improper Denial Of Attorney's Fees Under 42 U.S.C. §§ 1983 And 1988, Brian Buckley
Washington Law Review
42 U.S.C. §§ 1983 and 1988 allow persons to challenge state laws that violate their federal constitutional rights and to recover their attorney's fees should they prevail. This Comment analyzes two recent Washington cases in which the plaintiffs were denied fee recoveries despite having successfully challenged state statutes. This Comment then argues that fee awards should have been granted in both cases and that in the future fee awards should rarely be denied when plaintiffs invalidate state law under §§ 1983 and 1988.
Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway
Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway
Washington Law Review
Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes …
Cornering The Quark: Investment-Backed Expectations And Economically Viable Uses In Takings Analysis, Lynda J. Oswald
Cornering The Quark: Investment-Backed Expectations And Economically Viable Uses In Takings Analysis, Lynda J. Oswald
Washington Law Review
Although stressing the "ad hoc, factual" nature of regulatory takings analysis, the United States Supreme Court has, over time, elevated the prominence of two economic tests in its analysis. In this Article, the author criticizes the importance placed on the tests and argues that the validity of a regulation must be determined based on the legitimacy of the governmental objective and the relationship between that objective and the challenged regulation, and not on the economic impact of the regulation on the property owner. The author rejects the notion that exercises of the eminent domain power and valid exercises of the …
Burdening The Plaintiff: Proving Employment Discrimination After Kastanis V. Educational Employees Credit Union, Andrea J. Menaker
Burdening The Plaintiff: Proving Employment Discrimination After Kastanis V. Educational Employees Credit Union, Andrea J. Menaker
Washington Law Review
In Kastanis v. Educational Employees Credit Union, the Washington Supreme Court held that a plaintiff who presents direct, undisputed evidence of discrimination bears the burden of persuading the jury that the employer's actions were not justified by business necessity. By substantially increasing the plaintiff's burden, this decision will make it more difficult for plaintiffs to successfully litigate employment discrimination claims in Washington State. Not only is the court's reasoning contrary to existing state and federal law, but there are also strong policy reasons arguing against the continued application of the court's rule.
Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion
Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion
Washington Law Review
In federal courts, Federal Rule of Evidence 501 governs all privileges, including the psychotherapist-patient privilege. Unlike many state statutes that explicitly recognize the psychotherapist-patient privilege and define its scope through exceptions, Rule 501 merely directs courts to use their reason and experience to interpret common law principles. Under this vague standard, the federal circuits lack uniformity in their treatment of the psychotherapist-patient privilege. This Comment suggests that Congress should explicitly recognize the privilege and define its scope through exceptions. To support this conclusion, this Comment discusses the justifications for recognizing a psychotherapist-patient privilege, uses the paradigm of formal versus nonformal …