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Articles 1 - 30 of 34
Full-Text Articles in Law
The Supreme Court's Interpretation Of Section 1988 And Awards Of Attorney's Fees For Work Performed In Administrative Proceedings: A Proposal For A Result-Oriented Approach—North Carolina Department Of Transportation V. Crest Street Community Council, Inc., 107 S. Ct. 336 (1986), Richard Gans
Washington Law Review
In 1976, Congress enacted the Civil Rights Attorney's Fees Awards Act, amending 42 U.S.C. § 1988. Section 1988 authorizes courts to award attorney's fees to claimants who prevail in actions or proceedings to enforce civil rights under any of the laws enumerated in the Section. In North Carolina Department of Transportation v. Crest Street Community Council, Inc., the United States Supreme Court for the first time addressed the issue of whether a party may seek attorney's fees in a court action apart from the action or proceeding in which the party seeks to enforce civil rights. Justice O'Connor, writing for …
Constitutional Challenges To The Partial Rejection And Modification Of The Common Law Rule Of Joint And Several Liability Made By The 1986 Washington Tort Reform Act, Cornelius J. Peck
Constitutional Challenges To The Partial Rejection And Modification Of The Common Law Rule Of Joint And Several Liability Made By The 1986 Washington Tort Reform Act, Cornelius J. Peck
Washington Law Review
The procedural due process questions raised by Section 401 differ in substantial ways from questions in traditional procedural due process cases. In most of the decided cases a governmental body or a private individual was attempting to harm the interests of the person claiming due process protection. Due process requirements were established as protections for the defendant. Only a few of the cases involved a claim of due process in access to a judicial remedy. Persons contesting the constitutionality of Section 401 will argue that the limitations imposed and the procedures required by that Section fail to meet the requirements …
The Testimony Of Child Witnesses: Fact, Fantasy, And The Influence Of Pretrial Interviews, John R. Christiansen
The Testimony Of Child Witnesses: Fact, Fantasy, And The Influence Of Pretrial Interviews, John R. Christiansen
Washington Law Review
Youth alone does not make a child witness' statements unreliable. Generally speaking, children are about as reliable as adults in reporting events they have actually perceived or experienced. However, a young child is, in certain respects, more vulnerable to suggestion than an adult and more liable to confuse memory of fact with memory of fantasy. The danger is that pretrial interviewing and preparation procedures will suggest facts and stimulate fantasies the child will thereafter report and recall as truth. Falsification of memory is far from inevitable and can be prevented by careful handling of the pretrial child witness procedures. But …
The Implied Warranty Of Habitability Doctrine In Residential Property Conveyances: Policy-Backed Change Proposals, Joseph C. Brown Jr.
The Implied Warranty Of Habitability Doctrine In Residential Property Conveyances: Policy-Backed Change Proposals, Joseph C. Brown Jr.
Washington Law Review
Washington's implied warranty of habitability doctrine is a creature of public policy. Its application is appropriately defined and limited by policy concerns. In conceivable cases, however, limits on the doctrine's application would yield results inconsistent with its public policy bases. Although created to protect a specific class of residence purchasers, in Washington the doctrine arbitrarily excludes from its coverage some potential members of that class. Because of these and other problems, the doctrine needs restructuring. This Comment explores the doctrine's public policy roots, analyzes potential new elements and the doctrine's existing elements in light of policy concerns, and suggests changes …
The Role Of Arms Control In Strategic Nuclear Doctrine: Sdi, Mad, And The Abm Treaty, William A. Kinsel
The Role Of Arms Control In Strategic Nuclear Doctrine: Sdi, Mad, And The Abm Treaty, William A. Kinsel
Washington Law Review
To resolve the underlying doctrinal dispute, the United States must choose either to abandon SDI in favor of MAD, or vice versa. This choice is necessary because, as this Comment demonstrates, the two doctrines cannot be maintained simultaneously. Once this primary choice is made, the debate over the interpretation of the ABM Treaty resolves itself into the secondary question of whether to terminate the Treaty to allow effective pursuit of SDI, or to reaffirm that treaty to permit continued reliance on the doctrine of MAD as the basis of our nuclear deterrent. This Comment, after identifying the competing premises of …
Protecting The Appearance Of Judicial Impartiality In The Face Of Law Clerk Employment Negotiations, Kevin D. Swan
Protecting The Appearance Of Judicial Impartiality In The Face Of Law Clerk Employment Negotiations, Kevin D. Swan
Washington Law Review
This Comment examines the relationship among judges, law clerks, and the requirements placed on both to maintain the appearance of impartiality. It also addresses current standards applied to this problem and evaluates those standards based on the policies behind the cases and rules governing conflicts of interest. It analyzes what circumstances mandate removal of clerks from cases, as well as what circumstances mandate the removal of the clerks' respective judges. Finally, this Comment proposes a rule of professional responsibility for judges and clerks to follow when the clerks are involved in employment negotiations, and suggests the implementation of training and …
Federal Courts And Attorney Disqualification Motions: A Realistic Approach To Conflicts Of Interest, Linda Ann Winslow
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 …
Reexamining The Physician's Duty Of Care In Response To Medicare's Prospective Payment System, Andrea Jean Lairson
Reexamining The Physician's Duty Of Care In Response To Medicare's Prospective Payment System, Andrea Jean Lairson
Washington Law Review
In Wickline, the California Court of Appeals indicated that the physician's standard of care is unchanged by pressures from cost containment programs. While recognizing the desirability of controlling health care costs, this Comment argues that physicians who care for Medicare patients should not be held to a lower standard of care than those who care for patients not covered by Medicare. Indeed, physicians should be required to take reasonable steps to ensure that their patients will not be harmed by financially-motivated treatment decisions.
Supreme Court Voting Patterns Related To Jurisdictional Issues, John R. Leathers
Supreme Court Voting Patterns Related To Jurisdictional Issues, John R. Leathers
Washington Law Review
The past decade of development by the United States Supreme Court of constitutional law related to jurisdiction has been one of amazingly swift occurrences. Although progress in the area has traditionally been glacial, the Court has produced a consistent flow of opinions over the last ten years. With the flow has come a virtual flood of commentary. A consensus is emerging among scholars, perhaps shared by some members of the Court, that the current developmental framework for judicial jurisdiction dating from International Shoe Co. v. Washington may be ripe for revamping, and that the process may produce a new framework. …
Attorney Reinstatement Standards: A Proposal For Reform In Washington State, Anne Badgley
Attorney Reinstatement Standards: A Proposal For Reform In Washington State, Anne Badgley
Washington Law Review
This Comment reviews the background leading to Washington's present reinstatement guidelines and analyzes the approach taken by the Washington Supreme Court in deciding reinstatement petitions. Three recent cases are discussed to illustrate the problems created by the current approach. This Comment suggests that the court adopt a new approach in deciding reinstatement cases. The proposed approach establishes uniform disbarment periods for specific offenses and clarifies the qualifications expected of individual reinstatement applicants. This approach utilizes the categories of offenses set forth in the proposal drafted by the American Bar Association (hereinafter ABA) Standards for Imposing Lawyer Sanctions. The proposed changes …
The Parental Kidnaping Prevention Act: Is There An Enforcement Role For The Federal Courts?, Ann T. Wilson
The Parental Kidnaping Prevention Act: Is There An Enforcement Role For The Federal Courts?, Ann T. Wilson
Washington Law Review
The number of divorced parents has increased dramatically since 1970. Consequently, the number of custody disputes has risen. In our increasingly mobile society, it is not surprising that many of these disputes occur across state lines. Extended litigation creates additional uncertainty and instability for children involved in these disputes. In response to this growing problem, Congress enacted the Parental Kidnapping Prevention Act of 1980 (PKPA). The PKPA requires that state courts enforce and not modify the child custody determinations of other states. The duty to enforce arises if the initial custody determination meets certain conditions. 6 Despite the existence of …
Asylum For Persecuted Social Groups: A Closed Door Left Slightly Ajar—Sanchez-Trujillo V. Ins, 801 F.2d 1571 (9th Cir. 1986), Daniel Compton
Asylum For Persecuted Social Groups: A Closed Door Left Slightly Ajar—Sanchez-Trujillo V. Ins, 801 F.2d 1571 (9th Cir. 1986), Daniel Compton
Washington Law Review
With the passage of the Refugee Act of 1980, the United States took an important step toward fulfilling its international human rights obligations. The Act significantly changed American asylum law and the federal courts have played a major role in interpreting the resulting changes. Because of this, the courts often have the last word in determining the practical nature of the human rights commitments embodied in the Refugee Act. In Sanchez-Trujillo v. INS, the Ninth Circuit Court of Appeals played the role of interpreter in outlining the parameters of a "particular social group" subject to a well-founded fear of persecution. …
Federalism, Uniformity, And The State Constitution—State V. Gunwall, 106 Wn. 2d 54, 721 P.2d 808 (1986), Linda White Atkins
Federalism, Uniformity, And The State Constitution—State V. Gunwall, 106 Wn. 2d 54, 721 P.2d 808 (1986), Linda White Atkins
Washington Law Review
In State v. Gunwall the Washington Supreme Court announced six criteria that Washington courts are to employ in determining whether a constitutional claim should be decided on state rather than federal grounds. This method of state constitutional analysis implicitly rejects the idea that the state constitution applies to every case in which it is raised. Instead, the method assumes that the federal Constitution controls claims that individual rights have been violated, unless application of the state constitution can be justified through use of the court's criteria. These criteria confine the development of independent state constitutional doctrines to provisions of the …
Dispute Resolution In China, Robert F. Utter
Dispute Resolution In China, Robert F. Utter
Washington Law Review
It gives me great pleasure to submit this essay as part of a tribute to Professor Luvern Rieke. I first met him in his initial year of teaching contracts at the University of Washington, when I was a beginning law student. We later worked together in a variety of contexts including ecumenical religious projects; matters concerning domestic relations subjects when I served on the King County Superior Court bench; and on the Judicial Council, where I served as a member of the Washington State Supreme Court. To each role he brought a unique combination of personal qualities: he was thoughtful, …
Punitive Damages Under The Carriage Of Goods By Sea Act: A Bulkhead Is Breached—Armada Supply V. S/T Agios Nikolas, 639 F. Supp. 1161 (S.D.N.Y. 1986), David M. Blachman
Punitive Damages Under The Carriage Of Goods By Sea Act: A Bulkhead Is Breached—Armada Supply V. S/T Agios Nikolas, 639 F. Supp. 1161 (S.D.N.Y. 1986), David M. Blachman
Washington Law Review
Armada Supply v. SIT Agios Nikolas was described as "no 'run-of-the-mill' cargo case," but rather a case involving "charges of cargo hijacking and blackmail, ransom and deceit—all the elements of a good high seas drama, short of mutiny. The United States District Court for the Southern District of New York, after awarding full compensatory damages, imposed $250,000 in punitive damages against the owners of the vessel because of reprehensible conduct in converting the cargo, and in blackmailing and deceiving the cargo owner. The court awarded punitive damages after it acknowledged that the Carriage of Goods by Sea Act (COGSA) governed …
The National Labor Relations Act And Undocumented Workers: Local 512 V. Nlrb After The Immigration Reform And Control Act Of 1986, Daniel R. Fjelstad
The National Labor Relations Act And Undocumented Workers: Local 512 V. Nlrb After The Immigration Reform And Control Act Of 1986, Daniel R. Fjelstad
Washington Law Review
In Local 512 v. NLRB, the Ninth Circuit Court of Appeals ordered the National Labor Relations Board (NLRB or Board) to award backpay to undocumented workers who had been unlawfully laid off by their employer. The court decided Local 512 before enactment of the Immigration Reform and Control Act of 1986 (IRCA). One of the aims of the IRCA is to keep undocumented aliens out of the workplace by making it illegal to knowingly employ undocumented aliens. Because protection of undocumented workers like that granted in Local 512 might undermine pursuit of this IRCA objective, apparent conflict arises between National …
Sin, Scandal, And Substantive Due Process: Personal Jurisdiction And Pennoyer Reconsidered, Wendy Collins Perdue
Sin, Scandal, And Substantive Due Process: Personal Jurisdiction And Pennoyer Reconsidered, Wendy Collins Perdue
Washington Law Review
As part of the attempt to understand modem doctrine, this article first reexamines Pennoyer v. Neff. This reexamination goes beyond the Supreme Court opinion and looks both at the underlying story of the case and the lower court opinion. The story of Pennoyer v. Neff is of considerable interest in and of itself. The cast of characters includes a bigamous United States Senator who was elected under an alias, a governor of Oregon who used his inauguration as a platform to decry his loss in the case, and an illiterate but litigious settler. In addition, the lower court opinion, all …
Rethinking The Act Of State Doctrine: An Analysis In Terms Of Jurisdiction To Prescribe, David C.K. Chow
Rethinking The Act Of State Doctrine: An Analysis In Terms Of Jurisdiction To Prescribe, David C.K. Chow
Washington Law Review
This article proposes a new conception of the act of state doctrine. The basic approach of this new conception is that the act of state doctrine should be analyzed in terms of international law principles governing a sovereign state's jurisdiction to prescribe rules of law. As used here, jurisdiction to prescribe refers to the appropriate authority of a state "to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things." In analyzing questions of prescriptive jurisdiction, this article employs the useful and important approach set forth by the recently adopted Restatement …
Bootstrapping A Malice Requirement Into Adea Liquidated Damage Awards—Dreyer V. Arco Chemical, 801 F.2d 651 (3d Cir. 1986), Cert. Denied, 55 U.S.L.W. 3586 (U. S. Mar. 2, 1987) (No. 86-1062), Rebecca Marshall
Washington Law Review
In Dreyer v. ARCO Chemical, the Third Circuit announced a standard for double damage awards under the Age Discrimination in Employment Act (ADEA) that departs radically from the standard the Supreme Court deemed acceptable in Trans World Airlines v. Thurston. The ADEA protects employees over forty from discrimination on the basis of age. In order to enforce the Act, Congress created a two-tier remedy scheme: one, equitable and legal remedies to reimburse discrimination victims; and two, liquidated damages (hereinafter "double damages") to punish and deter employers from committing "willful" violations. Although the Third Circuit correctly identified a possible internal inconsistency …
Are Privacy And Public Disclossure Compatible?: The Privacy Exemption To Washington's Freedom Of Information Act—In Re Rosier, 105 Wn. 2d 606, 717 P.2d 1353 (1986), Matthew Edwards
Washington Law Review
In 1972, Washington State voters passed Initiative 276, the Public Disclosure Act, by a substantial margin. The initiative contained four measures intended to open up government, including one designed to ensure public access to government-held records. This measure, popularly known as Washington's Freedom of Information Act (FOIA), provides a mechanism by which individuals can access information held by the government, subject to only a few exemptions. One such exemption prevents disclosure which is an "unreasonable invasion" of personal privacy. The Washington Supreme Court greatly expanded the scope of this personal privacy exemption in In re Rosier. Prior to this decision, …
Extending The Benefit Of An Easement: A Closer Look At A Classic Rule—Brown V. Voss, 105 Wn. 2d 366, 715 P.2d 514 (1986), Pamela Mcclaran
Extending The Benefit Of An Easement: A Closer Look At A Classic Rule—Brown V. Voss, 105 Wn. 2d 366, 715 P.2d 514 (1986), Pamela Mcclaran
Washington Law Review
In Brown v. Voss the Washington Supreme Court considered whether an easement may be extended to benefit a nondominant parcel. The court endorsed the classic property rule that the benefit of an easement may not be extended by the dominant parcel owner to benefit other parcels. Furthermore, the court declared that any extension of an easement to benefit a nondominant parcel would be a misuse of the easement. Nevertheless, after weighing the relative hardship to the parties, the court refused to enjoin the extension of the easement where the resulting hardship to the dominant parcel would greatly exceed the benefit …
Abortion, Protest, And Constitutional Protection—Bering V. Share, 106 Wn. 2d 212, 721 P.2d 918 (1986), Carrie Miller
Abortion, Protest, And Constitutional Protection—Bering V. Share, 106 Wn. 2d 212, 721 P.2d 918 (1986), Carrie Miller
Washington Law Review
In Bering v. Share, the Washington Supreme Court upheld a broad injunction against the activities of Share, an anti-abortion activist group. The court found that a restriction of Share's free speech rights was necessary to protect children from the harmful effects of Share's language, and to protect the constitutional right to abortion. Consequently, the court restricted Share's use of the words "murder" and "kill," and limited Share's picketing to the side of the medical building. This Note assesses the Bering court's federal constitutional foundation for its restrictions of protected speech, and suggests an alternative basis and reduced scope for the …
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'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 …
Court-Ordered Criminal Restitution In Washington, Scott Peterson
Court-Ordered Criminal Restitution In Washington, Scott Peterson
Washington Law Review
This survey is an overview of court-ordered restitution in Washington. It reconciles the case law interpreting the restitution statutes currently in effect in Washington. It compares and contrasts the statutes. Finally, it is an effort to identify areas of the law that need additional judicial or legislative clarification.
Washington's Partial Rejection And Modification Of The Common Law Rule Of Joint And Several Liability, Cornelius J. Peck
Washington's Partial Rejection And Modification Of The Common Law Rule Of Joint And Several Liability, Cornelius J. Peck
Washington Law Review
In this discussion of the 1986 rejection and modification of the joint and several liability rule, an abbreviated account of that rule's operation prior to the statute's enactment is followed by an analysis of how the adoption of comparative negligence provided the basis for a successful attack on joint and several liability. Comparable developments in other states will be reviewed. Attention will then be given to the provision in the Washington statute which requires allocating fault to an "entity" even though that "entity" has not been, or cannot be, joined as a defendant, reducing the recoveries of plaintiffs who are …
New Consumer Protection Private Action Test: Clarification Or Further Confusion?—Hangman Ridge Training Stables V. Safeco Title Insurance Co., 105 Wn. 2d 778, 719 P.2d 531 (1986), Susan Clyatt Lybeck
New Consumer Protection Private Action Test: Clarification Or Further Confusion?—Hangman Ridge Training Stables V. Safeco Title Insurance Co., 105 Wn. 2d 778, 719 P.2d 531 (1986), Susan Clyatt Lybeck
Washington Law Review
In Hangman Ridge Training Stables v. Safeco Title Insurance Co., the Washington Supreme Court established a new test for plaintiffs to meet in pursuing a private right of action under Washington's Consumer Protection Act (CPA). The court set forth a substantially revised method for establishing public interest impact for private CPA actions. In addition, the court abolished its earlier distinction between per se and de facto CPA violations. All private plaintiffs must now meet the same test. This Note examines the legal background for private CPA actions prior to Hangman Ridge. The Note observes that the Hangman Ridge test is …
Disclosure Of Preliminary Merger Negotiations Under Rule 10b-5, Anne L. Barragar
Disclosure Of Preliminary Merger Negotiations Under Rule 10b-5, Anne L. Barragar
Washington Law Review
The present formulation of the law takes an overly simplistic approach to disclosure during merger negotiations. This Comment argues that disclosure rules should be standardized to accommodate competing concerns related to investor protection and predictability for management.
The Nlrb And The Negotiation Process: A Proposal For A Procedural Fairness Standard Of Review For Unfair Labor Practice Settlements, Andrew F. Fuller
The Nlrb And The Negotiation Process: A Proposal For A Procedural Fairness Standard Of Review For Unfair Labor Practice Settlements, Andrew F. Fuller
Washington Law Review
This Comment will show that the Board's policy of stringent review of the substantive terms of formal settlements is contrary to the purpose of the NLRA. The policy discourages and causes rejection of settlement agreements. In addition, the policy is inconsistent with the negotiation process and with other Board policies. As an alternative to its present policy of stringent substantive review, this Comment proposes that the Board implement a procedural fairness standard of review. This proposed standard would further the purposes of the NLRA and would provide for a realistic degree of review in terms of the negotiation process. Moreover, …
Employment At Will: Just Cause Protection Through Mandatory Arbitration, Warren Martin
Employment At Will: Just Cause Protection Through Mandatory Arbitration, Warren Martin
Washington Law Review
Employees' primary interest in wrongful termination litigation is job security. Job security has many meanings. It may imply a tenure system with discharge for exceptional circumstances only. On the other hand, it may refer to a limited training and transfer system for reassigning displaced employees. The question is what type of "security" the average employee needs. Employers, by contrast, are primarily interested in management freedom. Restricting management's freedom to terminate employees affects the employer by increasing costs and reducing productivity. Productivity is reduced when management retains incompetent or unnecessary employees for fear of litigation. Costs are increased through both litigation …
Rico And The Forfeiture Of Attorneys' Fees: Removing The Adversary From The Adversarial System?, Tim Tracy
Rico And The Forfeiture Of Attorneys' Fees: Removing The Adversary From The Adversarial System?, Tim Tracy
Washington Law Review
Analysis of the courts' application of RICO's amended forfeiture provisions to attorneys' fees entails consideration of the language of the statute, congressional intent, and the requirements of the fifth and sixth amendments. That analysis leads to a conclusion that neither legislative history nor statutory language requires the inclusion or exclusion of attorneys' fees from RICO forfeiture. Likewise, the right to counsel provided by the sixth amendment, upon which some courts have relied, does not adequately resolve the issue. Instead, fifth amendment due process analysis provides the requisite constitutional framework to resolve the fee forfeiture issue. Fifth amendment considerations compel recognition …