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Articles 1 - 30 of 48
Full-Text Articles in Law
Between The Devil And The Deep Blue Sea: Crime Victims' Dilemma After Simon & Schuster, Inc. V. Members Of The New York Crime Victims Board, 112 S. Ct. 501 (1991), Michele C. Meske
Between The Devil And The Deep Blue Sea: Crime Victims' Dilemma After Simon & Schuster, Inc. V. Members Of The New York Crime Victims Board, 112 S. Ct. 501 (1991), Michele C. Meske
Washington Law Review
In Simon & Schuster, Inc. v. Members of the New York Crime Victims Board, the Supreme Court held that a statute, New York's "Son of Sam" law, that allowed crime victims to reach the proceeds of their victimizers' media reenactments of the criminals' wrongful acts violated the First Amendment. By invalidating the statute, the Supreme Court eliminated the only presently available means to prevent criminals from profiting from their crimes and exploiting their victims. This Comment examines the origins of this problem and proposes that courts use restitutions common law doctrines to prevent criminals who sell their stories from profiting …
In-House Counsel's Wrongful Discharge Action Under The Public Policy Exception And Retaliatory Discharge Doctrine, Raymis H.C. Kim
In-House Counsel's Wrongful Discharge Action Under The Public Policy Exception And Retaliatory Discharge Doctrine, Raymis H.C. Kim
Washington Law Review
Most courts hold that in-house counsel have no cause of action under public policy or retaliatory discharge exceptions to the at-will employment rule. This is true even when they are discharged in contravention of a clearly mandated public policy. These courts have rationalized that such recognition would be contrary to the at-will nature of attorney-client employment and would have an adverse effect on the attorney-client relationship. This Comment proposes that courts should extend the public policy exception and retaliatory discharge doctrine to in-house counsel to protect the public from illegal corporate acts and provide relief to in-house counsel.
They Never Kept But One Promise—County Of Yakima V. Confederated Tribes And Bands Of The Yakima Indian Nation, 112 S. Ct. 683 (1992), Deborah Jo Borrero
They Never Kept But One Promise—County Of Yakima V. Confederated Tribes And Bands Of The Yakima Indian Nation, 112 S. Ct. 683 (1992), Deborah Jo Borrero
Washington Law Review
Despite congressional efforts to promote tribal self-determination and self-governance, the Supreme Court continues to give effect to disastrous assimilative policies of the past. A particularly far-reaching case, County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, upheld state property taxation of tribal land within an Indian reservation. The decision neglects tribal sovereignty and contradicts federal policy. After Yakima Indian Nation, tribalism is in serious jeopardy once again. This Note examines Yakima Indian Nation and concludes that Congress must intervene to protect tribes from state property taxes to preserve tribal land and sovereignty.
Protecting Donar Privacy In Aids Related Blood Bank Litigation—Doe V. Puget Sound Blood Center, 117 Wash. 2d 772, 819 P.2d 370 (1991), Anne Marie Logerfo
Protecting Donar Privacy In Aids Related Blood Bank Litigation—Doe V. Puget Sound Blood Center, 117 Wash. 2d 772, 819 P.2d 370 (1991), Anne Marie Logerfo
Washington Law Review
One controversial issue in blood bank AIDS litigation is whether courts should permit infected plaintiffs to conduct discovery of information about the blood donor who contributed the contaminated blood. Many courts have taken a reasonable middle ground by allowing limited discovery of a blood donor provided that the donor's identity remains confidential. In a recent case, the Washington Supreme Court provided no such limitation on blood donor discovery. This Note argues that the court's decision infringes on the significant privacy interests of the blood donor and violates the public's interest in an adequate blood supply while providing little or no …
Persecution On Account Of Political Opinion: "Refugee" Status After Ins V. Elias-Zacarias, 112 S. Ct. 812 (1992), Craig A. Fielden
Persecution On Account Of Political Opinion: "Refugee" Status After Ins V. Elias-Zacarias, 112 S. Ct. 812 (1992), Craig A. Fielden
Washington Law Review
In INS v. Elias-Zacarias, the Supreme Court examined the definition of "refugee" under the Refugee Act of 1980 and found that harm from refusing to join a guerrilla organization is not "persecution on account of political opinion" as defined under that Act. This decision is incompatible with the intent of the Refugee Act of 1980 and creates onerous burdens of proof for aliens seeking asylum. This Note analyzes the Court's reasoning and concludes that Congress should enact legislation nullifying the Court's decision.
Deterring Egregious Violations Of Public Policy: A Proposed Amendment To The Model Employment Termination Act, Dawn S. Perry
Deterring Egregious Violations Of Public Policy: A Proposed Amendment To The Model Employment Termination Act, Dawn S. Perry
Washington Law Review
The Model Employment Termination Act (Model Act), if enacted by state legislatures, would provide good cause protection to private sector employees. In exchange for this increased job security, the Model Act limits the range of remedies available for wrongful discharges. This Comment compares the remedies available under common law to those embodied in the Model Act and concludes that the Model Act does not adequately deter abusive discharges in violation of public policy. By amending the Model Act to include a capped punitive damages provision for egregious violations of public policy, state legislatures can achieve deterrence without undermining the compromise …
Federal Moral Rights For Visual Artists: Contract Theory And Analysis, Russ Versteeg
Federal Moral Rights For Visual Artists: Contract Theory And Analysis, Russ Versteeg
Washington Law Review
This Article is intended neither as an introduction to contract principles for visual artists nor as a comprehensive analysis or study of art law contracts. Nor is this Article intended as a "how to negotiate a contract" manual for visual artists with annotations and forms. Works such as these already exist and are available for both attorneys and artists. Furthermore, this Article is not an exhaustive treatment of the philosophical, political and sociological forces that shaped the American recognition of moral rights for visual artists under the United States Copyright Act. Instead, this Article looks critically at the immediate, potential …
A Pragmatic Model Of Law, Daniel C.K. Chow
A Pragmatic Model Of Law, Daniel C.K. Chow
Washington Law Review
While all of us are pragmatic in an informal or colloquial sense in many instances in daily life, pragmatism as applied to law has a deeper, jurisprudential sense The author suggests that modern legal pragmatism presents a model of law that avoids the serious philosophical errors of the traditional model of law, which is based upon assumptions that are untenable in light of fundamental developments in twentieth century thought. The traditional model justifies law by grounding law in eternal, immutable and transcendental foundations. All modern legal pragmatists reject the notion that transcendental foundations sustain law. Modern legal pragmatism arose in …
Regulating Cable Television Rates: A Phantom First Amendment Problem, Matthew Jolly
Regulating Cable Television Rates: A Phantom First Amendment Problem, Matthew Jolly
Washington Law Review
Public concern over cable television's status as a monopoly has generated a movement to allow local franchising authorities to regulate cable service rates. Because the courts have yet to hear a First Amendment challenge to imposing rate regulation on a member of the media, the constitutionality of cable rate regulation is not settled. This Comment argues that the restriction on speech resulting from rate regulation is outweighed by the substantial government interest in preventing unfair monopoly pricing practices.
Participation Without Representation: The Meaning Of The Right To Vote After Presley V. Etowah County Commission, 112 S. Ct. 820 (1992), Nancy C. Zaragoza
Participation Without Representation: The Meaning Of The Right To Vote After Presley V. Etowah County Commission, 112 S. Ct. 820 (1992), Nancy C. Zaragoza
Washington Law Review
Section 5 of the Voting Rights Act requires governing entities implementing any new practices "with respect to voting" to first permit such changes to be scrutinized for discriminatory effects. In Presley v. Etowah County Commission, the United States Supreme Court held that a county government's restructuring of power among commissioners did not require scrutiny because the restructuring did not constitute a change with respect to voting. This Note examines Presley and concludes that the Court's decision ignored precedent, created an unreasonable test and misapplied the test. To ensure effective enforcement of the Voting Rights Act, the Court should adopt a …
The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal
The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal
Articles
The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential future developments of …
The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal
The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal
Washington Law Review
The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential future developments of …
The Right To Pension Benefits Under Erisa When A Nonemployee Spouse Predeceases The Employee Spouse, Stacy Lynn Anderson
The Right To Pension Benefits Under Erisa When A Nonemployee Spouse Predeceases The Employee Spouse, Stacy Lynn Anderson
Washington Law Review
Under the Employee Retirement Income Security Act, retirement benefits cannot be assigned or alienated. In 1984, Congress enacted the Retirement Equity Act (REA) which allowed retirement benefits to be divided between former spouses upon divorce, under a qualified domestic relations order (QDRO). It is unclear whether the restriction on alienation of benefits extended to a transfer of the interests of a nonemployee spouse who predeceases the employee spouse, and if so, whether such a disposition is within the QDRO exception. In a two-to-one decision in Ablamis v. Roper, the Ninth Circuit held that the exception did not extend to such …
The Duty To Serve And Protect: 42 U.S.C. § 1983 And Police Officers' Liability Following Roadside Abandonment, Michael R. Gotham
The Duty To Serve And Protect: 42 U.S.C. § 1983 And Police Officers' Liability Following Roadside Abandonment, Michael R. Gotham
Washington Law Review
Courts disagree about whether an individual has a cause of action against a police officer under 42 U.S.C. § 1983 when that officer abandoned the individual in a dangerous environment following a traffic stop. Courts have not uniformly recognized an individual's right to personal security in roadside abandonment cases as fundamental and protected by the Fourteenth Amendment. Also, courts have required plaintiffs in these cases to show that an asserted right was clearly established at the time the officer acted in order to overcome the officer's qualified immunity defense. This requirement often bars plaintiffs from recovering under section 1983. This …
Speak Of The Missing Witness, And Surely He Shall Appear: The Missing Witness Doctrine And The Constitutional Rights Of Criminal Defendants—State V. Blair, 117 Wash. 2d 479, 816 P.2d 718 (1991), Carl T. Edwards
Washington Law Review
In State v. Blair, the Washington Supreme Court held for the first time that the state may use the missing witness doctrine against criminal defendants. Under the missing witness doctrine, which provides a permissive inference based on a defendant's failure to present available witnesses, prosecutors may now argue that a defendant failed to call certain witnesses because the defendant feared that their testimony would have been incriminating. This Note examines the court's decision in State v. Blair, the formulation of the missing witness doctrine adopted by the court, and the common law origins of the missing witness doctrine. This Note …
Leaving Your Speech Rights At The Bar—Gentile V. State Bar, 111 S. Ct. 2720 (1991), Lester Porter Jr.
Leaving Your Speech Rights At The Bar—Gentile V. State Bar, 111 S. Ct. 2720 (1991), Lester Porter Jr.
Washington Law Review
In Gentile v. State Bar the Supreme Court voided an attorney disciplinary rule regulating trial publicity for vagueness. The Court, however, upheld the substantive standard employed by the rule to identify dangerous speech. This standard restricts more attorney comments to the media than the Court has allowed for the press or public. This Note argues that the standard upheld in Gentile fails First Amendment scrutiny and proposes a response for states reviewing their professional disciplinary rules in light of Gentile. Adoption of this proposal will mitigate the danger of prejudicial trial publicity while recognizing the benefits of attorney publicity.
Modern Media And The First Amendment: Rediscovering Freedom Of The Press, Donald E. Lively
Modern Media And The First Amendment: Rediscovering Freedom Of The Press, Donald E. Lively
Washington Law Review
Freedom of the press, like other constitutional guarantees is not an absolute. Nor does it have the same meaning for all media. For more than a century after the constitution was framed and ratified, the press was coextensive with publishing. Over the course of the twentieth century, electronic media have emerged and extended the contours of the press. At the same time, however, liberty of the press has developed in idiosyncratic terms that have fostered a First Amendment hierarchy. While print media continue to be afforded maximum constitutional security, newer communications methodologies have been more susceptible to official management and …
The Porcupine's Dilemma: Strategic And Psychological Uncertainty In The Face Of Global Warming, William H. Rodgers, Jr.
The Porcupine's Dilemma: Strategic And Psychological Uncertainty In The Face Of Global Warming, William H. Rodgers, Jr.
Articles
No abstract provided.
A Frequent Recurrence To Fundamental Principles: Individual Rights, Free Government, And The Washington State Constitution, Brian Snure
Washington Law Review
Article 1, section 32, of the Washington State Constitution provides for a "recurrence to fundamental principles" as a means of protecting individual rights and free government. Since the adoption of the constitution in 1889, section 32 has been used infrequently by Washington's legal community. This Comment examines the role of section 32 in constitutional analysis by distilling four fundamental principles from the structure of the state constitution and the historical and legal environment existing in 1889. From these principles, this Comment concludes that the framers of the Washington Constitution intended that section 32 be used to expand the scope of …
Mandatory Life Sentence Without Parole Found Constitutionally Permissble For Cocaine Possession—Harmelin V. Michigan, 111 S. Ct. 2680 (1991), Andrew H. Mun
Washington Law Review
In Harmelin v. Michigan, the United States Supreme Court held (5-4) that a legislatively-mandated life sentence without parole for possession of 672.5 grams of cocaine did not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. In reaching the result, two Justices abrogated the proportionality principle in the Eighth Amendment and three Justices abridged the proportionality standard promulgated in Solem v. Helm. This Note examines the Harmelin decision and suggests that the Court does not adequately justify abrogating or limiting the Solem proportionality standard. This Note recommends application of the Solem proportionality standard and concludes that imposition of …
The Impact Of Taiwan's Political Reform On Its Mainland China Policy: Pragmatic Economic Relations And Conflicting Political Ideology, Lawrence B. Weiner
The Impact Of Taiwan's Political Reform On Its Mainland China Policy: Pragmatic Economic Relations And Conflicting Political Ideology, Lawrence B. Weiner
Washington International Law Journal
For nearly forty years, the Republic of China on Taiwan (ROC), acting under the Kuo Min Tang (KMT), or Nationalist Party, and the People's Republic of China (PRC), acting under the Chinese Communist Party (CCP), have ruled separate provinces across the Taiwan Straits, each claiming legitimate rule over China. During that entire time, neither side rescinded its threat to use military force, and the mainland regularly shelled islands controlled by the ROC. Recent events, however, have significantly altered relations between the two Chinas. In 1987, immediately after the ROC government repealed martial law, Taiwan residents were allowed to visit the …
The National Wildlife Refuge System: Incompatible Recreational And Economic Uses Of Refuge Lands, Kimberley J. Priestley
The National Wildlife Refuge System: Incompatible Recreational And Economic Uses Of Refuge Lands, Kimberley J. Priestley
Washington International Law Journal
This Comment addresses the problem of incompatible uses on refuge lands. Section I briefly summarizes the history and management of the NWRS and sets forth the basic tenets of the NWRS Administration Act's "compatibility" standard. Section II points out the problems of incompatible secondary uses on refuge lands. Section III examines the possible reasons behind the FWS's acquiescence to these incompatible recreational and economic uses and proposes solutions. Finally, this Comment concludes that an organic act, coupled with increased funding, would help the NWRS achieve its primary goal of providing protection for wildlife resources and their habitats.
Section 301 And U.S. Trade Law: The Limited Impact Of The 1988 Omnibus Trade And Competitiveness Act On American Obligations Under Gatt, Josh Schein
Washington International Law Journal
In 1988, President Reagan signed the Omnibus Trade and Competitiveness Act (OTCA), a broad set of trade laws overlying a sizable preexisting legal framework which included Section 301 of the Trade Act of 1974.1 The OTCA changed some U.S. trade law provisions while leaving other areas undisturbed. Foreign trading partners reacted sharply to the passage and implementation of the OTCA, arguing that it conflicted with American obligations under the General Agreement on Tariffs and Trade (GATT). Although no trading partner has formally challenged the OTCA under GATT thus far, the potential for conflict exists. This Comment will briefly summarize GATT …
Japanese Foreign Aid: Suggested Legislation To Guide Administrative Distribution Of Foreign Aid, Darin R. Greenen
Japanese Foreign Aid: Suggested Legislation To Guide Administrative Distribution Of Foreign Aid, Darin R. Greenen
Washington International Law Journal
This Comment analyzes the need for guiding legislation in the Japanese foreign aid program. First, the Comment describes the Japanese aid program and its shortcomings. It then suggests guiding legislation and analyzes the improvements such legislation will effectuate.
Applying U.S. Law To Halt Deforestation In Southeastern Myanmar: A Survey Of Potential Strategies, Douglas J. Kelso
Applying U.S. Law To Halt Deforestation In Southeastern Myanmar: A Survey Of Potential Strategies, Douglas J. Kelso
Washington International Law Journal
As the twentieth century draws to a close, the threat posed by environmental degradation grows increasingly apparent. Climatic change, ozone depletion, hazardous wastes, and numerous other ecological concerns gain growing prominence in national and international policy debates. Environmental degradation causes the loss of valuable atmospheric, hydrological, geological, and biological resources. In terms of resource depletion, the rapid destruction of tropical rain forests poses one of the greatest ecological threats to our planet today. This paper proposes that proper application of United States law might discourage tropical deforestation abroad, using the nation of Myanmar (formerly Burma) as an example.
Jury Instructions On Joint And Several Liability In Washington State, Julie K. Weaver
Jury Instructions On Joint And Several Liability In Washington State, Julie K. Weaver
Washington Law Review
Neither the Washington Legislature nor the Washington Supreme Court has addressed the issue of instructing a jury on Washington's doctrine of modified joint and several liability and its effects. Historically, most states prevented courts from instructing juries on the effects of their answers to special verdicts. Washington, however, has no history of keeping a jury uninformed of the effects of its answers. This Comment concludes that Washington courts should continue the practice of informing juries of the effects of their answers and instruct juries on joint and several liability and its effects.
Fifth Amendment Takings Implications Of The 1990 Native American Graves Protection And Repatriation Act, Ralph W. Johnson, Sharon I. Haensly
Fifth Amendment Takings Implications Of The 1990 Native American Graves Protection And Repatriation Act, Ralph W. Johnson, Sharon I. Haensly
Articles
In November 1990, Congress passed the Native American Graves Protection and Repatriation Act ("NAGPRA"). NAGPRA provides for the protection and disposition of Native American cultural items discovered on federal or tribal lands after NAGPRA's effective date. NAGPRA also addresses disposition of those objects currently held or controlled by federal agencies and museums. NAGPRA represents Congress' attempt to resolve years of debate between tribes, archaeologists, and museums. Like any legislative pronouncement, however, Congress left key issues to agencies and courts to resolve. This article focuses upon one such area, namely, Fifth Amendment takings questions that may arise when tribes or individual …
Reinvigorating Educational Malpractice Claims: A Representational Focus, John G. Culhane
Reinvigorating Educational Malpractice Claims: A Representational Focus, John G. Culhane
Washington Law Review
For the past twenty tears, courts have faced a wide array of claims alleging misconduct by schools and their officials. These claims have involved diverse injuries, including: negligence in permitting functional illiterates to pass through the school system; negligent misdiagnosis of learning disabilities; and failure to deliver a promised package of educational skills and services. The judiciary has almost uniformly refused to allow recovery, in tort or otherwise, for such injuries. Some courts have conceded that, on the pleadings, a good case might be made out. Plaintiffs have nonetheless been turned away because of courts' related concerns with untrammeled litigation …
Congressional Term Limits: Unconstitutional By Initiative, Brendan Barnicle
Congressional Term Limits: Unconstitutional By Initiative, Brendan Barnicle
Washington Law Review
Numerous states are considering voters' initiatives limiting the terms of their congressional delegations. This Comment analyzes the constitutionality of these measures and concludes that congressional term limits are unconstitutional when enacted through voters' initiatives, but may be properly enacted through a federal constitutional amendment. Moreover, imposing term limits at all, regardless of their implementation, appears inconsistent with original intent of the Constitution's framers. Finally, previous amendments used to implement changes to the electoral process, and judicial decisions on such proposed changes, suggest that changes such as term limits must be enacted by constitutional amendment.
Abusive Discretion: Discretionary And Supplemental Trusts Created In Settlement Of Personal Injury Claims, Brad Jones Berkness
Abusive Discretion: Discretionary And Supplemental Trusts Created In Settlement Of Personal Injury Claims, Brad Jones Berkness
Washington Law Review
Discretionary and supplemental trusts are often created in settlement of personal injury lawsuits to shield the settlement proceeds from the beneficiary's care-provider's claims. Washington courts provide no clear direction on creditor access to such trusts. This Comment argues for a legislative provision in Washington that makes these trusts accessible to creditors who provide necessities to an injured party. This Comment argues for allowing access regardless of any discretion or supplemental support language in the trust, because these trusts are self-settled and violate public policy.