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Articles 1 - 30 of 37
Full-Text Articles in Law
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
Washington Law Review
In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …
An Equal Protection Standard For National Origin Classifications: The Context That Matters, Jenny Rivera
An Equal Protection Standard For National Origin Classifications: The Context That Matters, Jenny Rivera
Washington Law Review
The Supreme Court has stated, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause."' Judicial review of legislative race-based classifications has been dominated by the context of the United States' history of race-based oppression and consideration of the effects of institutional racism. Racial context has also dominated judicial review of legislative classifications based on national origin. This pattern is seen, for example, in challenges to government affirmative action programs that define Latinos according to national origin subclasses. As a matter of law, these national origin-based classifications, like race-based classifications, are subject to strict scrutiny and can only …
Defusing The Bomb: The Scope Of The Federal Explosives Statute, Peter Moreno
Defusing The Bomb: The Scope Of The Federal Explosives Statute, Peter Moreno
Washington Law Review
A federal statute, 18 U.S.C. § 844(h)(2) (2000), imposes a mandatory ten-year term of imprisonment on anyone who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States." The United States Courts of Appeals are split over whether the statute must be read to include a relational element such that the crime is carrying explosives in relation to another felony. The Third, Fifth, and Sixth Circuits have rejected the notion that the statute contains such an implicit limitation. In contrast, the Ninth Circuit recently held that the application of § …
Slayers And Soldiers: The Validity And Scope Of The Slayer's Rule Under The Family Servicemembers' Group Life Insurance Act, Rebecca Blasco
Slayers And Soldiers: The Validity And Scope Of The Slayer's Rule Under The Family Servicemembers' Group Life Insurance Act, Rebecca Blasco
Washington Law Review
The "slayer's rule"—a common law doctrine—precludes a murderer from financially benefiting from the victim's death by denying him or her the right to proceeds from the victim's life insurance policy. Some jurisdictions have extended this rule to disqualify the slayer's exclusive family members from receiving the victim's insurance proceeds as beneficiaries. Exclusive family members are those either not related to the victim or related to the victim only by marriage. The slayer's rule applies to federal group life insurance policies, such as the Servicemembers' Group Life Insurance Act (SGLI), which provides life insurance to servicemembers. Spouses and dependent children of …
Ain't Nothing Like The Real Thing: Enforcing Land Use Restrictions On Land And Water Conservation Fund Parks, Michael J. Gelardi
Ain't Nothing Like The Real Thing: Enforcing Land Use Restrictions On Land And Water Conservation Fund Parks, Michael J. Gelardi
Washington Law Review
Congress created the Land and Water Conservation Fund (LWCF) in 1965 to provide resources for states and federal agencies to acquire and develop land for public outdoor recreation. Over the past forty years, the LWCF has quietly become one of the most successful conservation programs in United States history. The federal government and states have used the LWCF to preserve unique landscapes for their natural beauty, scientific value, and wildlife habitat, as well as to encourage traditional recreational pursuits. The LWCF Act prohibits the conversion of LWCF-funded state and local parks to uses other than public outdoor recreation unless approved …
From Stratton To Uscop: Environmental Law Floundering At Sea, Donna R. Christie
From Stratton To Uscop: Environmental Law Floundering At Sea, Donna R. Christie
Washington Law Review
No abstract provided.
Chumming On The Chesapeake Bay And Complexity Theory: Why The Precautionary Principle, Not Cost-Benefit Analysis, Makes More Sense As A Regulatory Approach, Hope M. Babcock
Washington Law Review
"[H]istory reveals not merely that change is real but also that change is various. All change is not the same, nor are all changes equal. Some changes are cyclical, some are not. Some changes are linear, others are not. Some changes take an afternoon to accomplish, some a millennium. We can no more take any particular kind of change as absolutely normative than we can take any particular state of equilibrium as normative .... The challenge is to determine which changes are in our enlightened self-interest and are consistent with our most rigorous ethical reasoning, always remembering our inescapable dependency …
Recovery In A Cynical Time—With Apologies To Eric Arthur Blair, Dale D. Goble
Recovery In A Cynical Time—With Apologies To Eric Arthur Blair, Dale D. Goble
Washington Law Review
The drafters of the Endangered Species Act envisioned a process in which a species at risk of extinction would be protected while the threats it faces are removed so that it recovers. Over the first three decades of experience with the Act, implementation has proved to be far more complex. Recovering at-risk species imposes two different types of requirements. Biologically, recovery is a demographic problem: the species's population must have increased in numbers and dispersed geographically to a point at which nature's random risks have been reduced so that the species is no longer in danger of extinction. The risk-management …
Piecemeal Delisting: Designating Distinct Population Segments For The Purpose Of Delisting Gray Wolf Populations Is Arbitrary And Capricious, Nicole M. Tadano
Piecemeal Delisting: Designating Distinct Population Segments For The Purpose Of Delisting Gray Wolf Populations Is Arbitrary And Capricious, Nicole M. Tadano
Washington Law Review
The Endangered Species Act (ESA) protects species that are in danger of extinction "throughout all or a significant portion of its range." After thirty-three years of protection by the ESA, the gray wolf is gradually recovering from the brink of extinction. Pressure to remove protections for existing gray wolf populations has mounted as human interests have increasingly conflicted with the gray wolfs resurgence. Most courts have defined the phrase "significant portion of its range" in the ESA to mean the historical range of a species. This interpretation is consistent with the legislative history of the ESA and the historical listing …
Murky Waters: Courts Should Hold That The "Any-Progress-Is-Sufficient-Progress" Approach To Tmdl Development Under Section 303(D) Of The Clean Water Act Is Arbitrary And Capricious, Kelly Seaburg
Washington Law Review
Congress enacted the 1972 Amendments to the Clean Water Act (CWA) to combat water pollution stemming from both discrete and diffuse sources. Section 303(d) of the CWA reduces both types of pollution by requiring each state to promulgate "total maximum daily loads" (TMDLs) of pollutants for all waters that are unable to meet water quality standards. A TMDL is the maximum amount of a pollutant that can be discharged from all combined sources into a given body of water if that water is going to comply with water quality standards. Although section 303(d) required states to promulgate TMDLs by 1979, …
Teaching Environmental Law In The Era Of Climate Change: A Few Whats, Whys, And Hows, Michael Robinson-Dorn
Teaching Environmental Law In The Era Of Climate Change: A Few Whats, Whys, And Hows, Michael Robinson-Dorn
Washington Law Review
One of our key objectives at this celebration has been to explore the future of environmental law. To continue the exploration, I've chosen to address not an area of environmental law or environmental practice, but rather the teaching of environmental law. I hope to provoke the dialogue toward answering fundamental questions about what we should teach, why we should teach it, and how we should go about that task. It is an effort that I hope will engage not only the usual suspects for such pieces, a few fellow teachers and the watchful eye of a student law review editor, …
Precaution, Science, And Learning While Doing In Natural Resource Management, Holly Doremus
Precaution, Science, And Learning While Doing In Natural Resource Management, Holly Doremus
Washington Law Review
Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decisionmaking. Too often, though, that challenge is considered only from an ex ante perspective which treats uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions are often iterative or similar, providing significant opportunities for leaming. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decisionmaking while minimizing the key weaknesses …
Beauty And The Beast Within: On The Special Nature Of Natural World Law, Oliver A. Houck
Beauty And The Beast Within: On The Special Nature Of Natural World Law, Oliver A. Houck
Washington Law Review
We are here to celebrate Professor Rodgers and his life in environmental law. As it happens, they grew up together. The new notion of environmental protection gave Bill the chance of his lifetime, to which he returned his full energies, ideas, and writings. In a world of failed relationships, this one was a howling success. Although we have not seen each other more than twice in forty years, I feel a kinship with Bill that seems particularly close. The link is not simply our ages, nor our passion for environmental law, nor even the activism in which both of us …
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
Washington Law Review
Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.
Justice Kennedy And The Environment: Property, States' Rights, And A Persistent Search For Nexus, Michael C. Blumm, Sherry L. Bosse
Justice Kennedy And The Environment: Property, States' Rights, And A Persistent Search For Nexus, Michael C. Blumm, Sherry L. Bosse
Washington Law Review
Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental law cases. Kennedy's central role was never more evident than in the two most celebrated environmental cases of the last few years, Kelo v. City of New London and Rapanos v. United States, as he supplied the critical vote in both. Kennedy has in fact been the needle of the Supreme Court's environmental law compass since his nomination in 1988. Although he wrote surprisingly few environmental law opinions over his first eighteen years on the Court, Kennedy was in the majority …
Citizen's Arrest Or Police Arrest? Defining The Scope Of Alaska's Delegated Citizen's Arrest Doctrine, Lael Harrison
Citizen's Arrest Or Police Arrest? Defining The Scope Of Alaska's Delegated Citizen's Arrest Doctrine, Lael Harrison
Washington Law Review
When a citizen witnesses the commission of a misdemeanor, Alaska law allows that citizen to arrest the offender on the spot. A citizen making such an arrest may request assistance from a police officer rather than physically subduing the offender alone. However, Alaska law does not clearly define how much assistance police may give before the citizen's arrest becomes a warrantless police arrest. That distinction is particularly important in misdemeanor arrests because Alaska follows the common law rule that citizens and officers may make warrantless misdemeanor arrests only for those misdemeanors committed in their presence. Officers may not make warrantless …
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
Washington Law Review
In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Washington Law Review
The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …
Citizen's Arrest Or Police Arrest? Defining The Scope Of Alaska's Delegated Citizen's Arrest Doctrine, Lael Harrison
Citizen's Arrest Or Police Arrest? Defining The Scope Of Alaska's Delegated Citizen's Arrest Doctrine, Lael Harrison
Washington Law Review
When a citizen witnesses the commission of a misdemeanor, Alaska law allows that citizen to arrest the offender on the spot. A citizen making such an arrest may request assistance from a police officer rather than physically subduing the offender alone. However, Alaska law does not clearly define how much assistance police may give before the citizen's arrest becomes a warrantless police arrest. That distinction is particularly important in misdemeanor arrests because Alaska follows the common law rule that citizens and officers may make warrantless misdemeanor arrests only for those misdemeanors committed in their presence. Officers may not make warrantless …
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Washington Law Review
In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests …
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Washington Law Review
Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to …
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
Washington Law Review
In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Washington Law Review
Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to …
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Washington Law Review
In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests …
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Washington Law Review
The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …
Furman Fundamentals, Corinna Barrett Lain
Furman Fundamentals, Corinna Barrett Lain
Washington Law Review
For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …
Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote
Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote
Washington Law Review
Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …
Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong
Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong
Washington Law Review
Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by …
Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan
Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan
Washington Law Review
Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …
New Word, Same Problems: Entry, Arrival, And The One-Year Deadline For Asylum Seekers, Joanna R. Mareth
New Word, Same Problems: Entry, Arrival, And The One-Year Deadline For Asylum Seekers, Joanna R. Mareth
Washington Law Review
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imposed a one-year filing deadline on all applications for asylum. Under this law, an alien applying for asylum bears the burden of showing that he or she applied for asylum within one year of arrival into the United States. The word "arrival" is not defined in immigration law, but the Second Circuit recently held that not every border crossing into the country is an "arrival" for purposes of the asylum filing deadline. The court's reasoning was reminiscent of the U.S. Supreme Court's 1963 decision in Rosenberg v. Fleuti, …