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Articles 1 - 30 of 37
Full-Text Articles in Law
Towards Greater Openness In Judicial Conduct Commission Proceedings: Temporary Confidentiality As An Alternative To Inviolate Confidentiality—Garner V. Cherberg, 111 Wash. 2d 811, 765 P.2d 1284 (1988), Tom Montgomery
Washington Law Review
In Garner v. Cherberg, the Washington Supreme Court upheld certain rules of inviolate confidentiality adopted by the Washington Commission on Judicial Conduct. This Note examines the justifications for such confidentiality rules, and proposes temporary, rather than inviolate, confidentiality to better balance interests of fairness and the public's right to know.
Judicial Ethics: The Less-Often Asked Questions, Andrew L. Kaufman
Judicial Ethics: The Less-Often Asked Questions, Andrew L. Kaufman
Washington Law Review
Judicial ethics is a topic of increasing interest to the public, the bar, and the judiciary; only recently has the body of substantive law regarding judicial behavior begun to take shape. This essay explores the less developed issues of ex parte communication by judges, activities of judges' spouses, the obligation of judges to report attorney disciplinary violations, and extrajudicial comments by judges about legal matters. The Author analyzes the positions on these issues of the ABA Code of Judicial Conduct, the Judicial Conference of the United States' Code of Conduct for United States Judges, and the Discussion Draft of Draft …
The Clean Water Act: When Dumping Dead Fish Is Not The Discharge Of A Pollutant—National Wildlife Federation V. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), Cheri Y. Cornell
The Clean Water Act: When Dumping Dead Fish Is Not The Discharge Of A Pollutant—National Wildlife Federation V. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), Cheri Y. Cornell
Washington Law Review
The Clean Water Act defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from a point source." This Note examines National Wildlife Federation v. Consumers Power Co., in which the court held that an addition occurs only when a pollutant is introduced into water from the outside world. The Note argues that legislative history and the structure of the Clean Water Act demand an interpretation of "addition" which includes causing a pollutant to appear in water.
The 1988 Washington Administrative Procedure Act—An Introduction, William R. Andersen
The 1988 Washington Administrative Procedure Act—An Introduction, William R. Andersen
Washington Law Review
The Washington Legislature passed a new Administrative Procedure Act ("APA") in the spring of 1988, effective July 1, 1989. The Article guides the reader through the new APA, discusses its connection to general principles of administrative law and the policies underlying the Act, describes its organization, suggests solutions to interpretative problems, and recommends methods for evaluating future proposed amendments to the Act.
Admitting Opinions And Conclusions In Evaluative Reports: The Trustworthiness Inquiry—Beech Aircraft Corp. V. Rainey, 109 S. Ct. 439 (1988), Cheryl Musselman-Brown
Admitting Opinions And Conclusions In Evaluative Reports: The Trustworthiness Inquiry—Beech Aircraft Corp. V. Rainey, 109 S. Ct. 439 (1988), Cheryl Musselman-Brown
Washington Law Review
In Beech Aircraft Corp. v. Rainey, the United States Supreme Court held that opinions and conclusions in evaluative reports are within the scope of the federal public records hearsay exception if trustworthy. Washington's public records hearsay exception excludes opinions and conclusions in evaluative reports. This Note analyzes the trustworthiness requirement under the federal rule and proposes that Washington adopt the federal rule.
And Then There Were None: Requirements Contracts And The Buyer Who Does Not Buy, Cheryl R. Guttenberg
And Then There Were None: Requirements Contracts And The Buyer Who Does Not Buy, Cheryl R. Guttenberg
Washington Law Review
In requirements contract cases where buyer has significantly reduced—or no—requirements, courts employ inconsistent reasoning, resulting in legal uncertainty and economically inefficient exchanges. This Comment proposes a more predictable, efficient rule that would allow buyer to reduce its requirements after giving seller a business reason for the reduction, placing the risk of reduced requirements explicitly on seller.
The Personnel Manual Exception To Employment-At-Will: Is Job Security Merely An Illusion?—Stewart V. Chevron Chemical Co., 111 Wash. 2d 609, 762 P.2d 1143 (1988), Marilou Rickert
Washington Law Review
Washington recognizes the personnel manual exception to the employment-at- will doctrine but applies the exception restrictively. In Stewart v. Chevron Chemical Co., the Washington Supreme Court reversed a plaintiff's judgment for wrongful discharge. This Note analyzes the court's decision and finds it a step backward from previous Washington law establishing exceptions to the employment-at-will doctrine. After Stewart, Washington provides less protection for employees than do other states. This Note suggests that a better rule would allow the trier of fact to decide whether a personnel manual is contractually binding.
The Item Veto Power In Washington, Stephen Masciocchi
The Item Veto Power In Washington, Stephen Masciocchi
Washington Law Review
Current use of the item veto power in Washington fails to check legislative spending and encourages gubernatorial encroachment on the legislative appropriations process. This Comment examines the history of the item veto and suggests reforms that would permit use of the item veto power to achieve cost savings while minimizing separation of powers violations.
A Tax Deduction For Direct Charitable Transfers: The Case Against Davis V. United States, 861 F.2d 558 (9th Cir. 1988), David L. Herron
A Tax Deduction For Direct Charitable Transfers: The Case Against Davis V. United States, 861 F.2d 558 (9th Cir. 1988), David L. Herron
Washington Law Review
Monetary transfers to charitable service providers may be deductible either as charitable contributions or as unreimbursed expenses. Whether a charity must possess the transfer to establish the charity control necessary to effect a charitable deduction is an unresolved issue. Using direct transfers to Mormon missionaries in Davis v. United States as an example, this Note concludes that direct transfers to service providers should be deductible and proposes a test for determining when charity control is sufficient without possession.
Control Of The Reservation Environment: Tribal Primacy, Federal Delegation, And The Limits Of State Intrusion, Judith V. Royster, Rory Snowarrow Fausett
Control Of The Reservation Environment: Tribal Primacy, Federal Delegation, And The Limits Of State Intrusion, Judith V. Royster, Rory Snowarrow Fausett
Washington Law Review
Inter-sovereign disputes over environmental regulation in Indian country are increasingly common. The federal government, individual states, and native nations all assert interests in controlling pollution on Indian reservations; the question of which sovereign should regulate in this area presents complex issues of federal law, native self-determination, and state autonomy. In this Article, the authors trace the roots of federal, state, and tribal authority to control events within reservation boundaries. Applying a three-tiered analysis to the problem, the authors examine: express federal preemption of state pollution control laws; federal program delegation to native governments as a bar to state regulation; and …
Specific Incident Polygraph Testing Under The Employee Polygraph Protection Act Of 1988, Ryan K. Brown
Specific Incident Polygraph Testing Under The Employee Polygraph Protection Act Of 1988, Ryan K. Brown
Washington Law Review
The Employee Polygraph Protection Act of 1988 was enacted to protect private individuals from unjust termination or denial of job opportunities resulting from unwarranted polygraph tests. The Act, however, allows private employers to continue using polygraphs as part of "ongoing investigations" of employee misconduct. This Comment examines the ambiguous language of this exemption that courts will encounter when determining whether employers have violated the Act. The Comment proposes that, unless legislative history or federal regulations indicate otherwise, ambiguities in the specific incident exemption should be broadly construed to avoid employer liability.
Software Distribution Agreements And Bankruptcy: The Licensor's Perspective, J. Dianne Brinson
Software Distribution Agreements And Bankruptcy: The Licensor's Perspective, J. Dianne Brinson
Washington Law Review
This Article addresses a special problem within the software-industry—licensee bankruptcy and the need to protect the rights of licensors in the software. Although federal law now protects the rights of a software licensee in the technology when a licensor undergoes bankruptcy, little guidance exists as to the effects of licensee bankruptcy upon the software licensor. This Article thoroughly reviews the relevant bankruptcy and copyright law as they relate to the computer software area, and then discusses why a licensor should consider avoiding the possibility of a software license being treated as an executory contract. The author concludes by offering practical …
Aliens' Fourth Amendment Rights Against Government Searches Abroad—United States V. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988), Cert. Granted, 109 S. Ct. 1741 (1989), Richard J. Dolan
Washington Law Review
The "war on drugs" and the effort to contain international terrorism have raised questions of when the Constitution restricts the actions of the United States government abroad. This Note analyzes United States v. Verdugo-Urquidez, a case in which the Ninth Circuit Court of Appeals held that aliens have fourth amendment rights against United States government searches of their residences abroad. The Note agrees that the court's holding was correct, but suggests the court's "natural rights" theory was too broad to comport with prior Supreme Court limitations of aliens' constitutional rights. Instead, the Note suggests that the relationship between an alien …
Constitutionality Of A Forum State's Use Of Its Own Longer Statute Of Limitations When Its Only Contact With The Dispute Is Its Status As A Forum—Sun Oil Co. V. Wortman, 108 S. Ct. 2117 (1988), Janet Kathleen May
Washington Law Review
In Sun Oil Co. v. Wortman, the United States Supreme Court declared constitutional a forum's use of its own longer statute of limitations. The Court essentially equates the requirements imposed by the due process clause and the full faith and credit clause. This Note concludes that the tests for constitutionality advanced by the Court do not adequately protect the individual rights of litigants, and recommends adopting a new choice of law test which recognizes both governmental and individual interests.
Equitable Tolling Of Statutory Benefit Time Limitations: A Congressional Intent Analysis, David D. Doran
Equitable Tolling Of Statutory Benefit Time Limitations: A Congressional Intent Analysis, David D. Doran
Washington Law Review
Courts toll time limitations that limit a statutory right to sue when tolling is consonant with congressional intent. Courts have left open, however, whether to extend this congressional intent analysis to toll time limitations that limit a statutory right to receive a benefit. This Comment analyzes how the United States Supreme Court's 1988 decision in INS v. Pangilinan affects the power of courts to equitably toll time limitations limiting the application period for a statutory benefit. The Comment concludes that these benefit time limitations should be tollable when they are consonant with congressional intent.
"Whatever Is Received": Evaluating Collateral, Its Disposition, And Proceeds Under Article 9 Of The Uniform Commercial Code—Rainier National Bank V. Bachmann, 111 Wash. 2d 298, 757 P.2d 979 (1988), Thomas L. Weinberg
Washington Law Review
In Rainier National Bank v. Bachmann, the Washington Supreme Court held that payments made to a debtor under the federal Dairy Termination Program were "proceeds" of the collateral at issue in the case under the Uniform Commercial Code ("UCC"). The author examines the relationship between proceeds and the collateral described by parties to a security agreement, concludes that the court improperly applied the UCC in Bachmann, and recommends an approach to evaluating proceeds
Income Taxation Of Distributions Made By Alaska Native Corporations: An Ambiguity In Need Of Clarification, Meade Emory, Robert A. Warden
Income Taxation Of Distributions Made By Alaska Native Corporations: An Ambiguity In Need Of Clarification, Meade Emory, Robert A. Warden
Washington Law Review
In 1971, Congress passed the Alaska Native Claims Settlement Act ("ANCSA") to provide compensation for extinguishing Native land claims in Alaska. ANCSA created a system of village corporations that received money and land as compensation, and are to distribute the compensation to shareholders. The Internal Revenue Service ("IRS"), despite legislative history to the contrary, is now asserting that corporate tax principles apply to the distributions because of ambiguous language contained in ANCSA. This assertion makes distributions to shareholders taxable as dividends to the extent of the corporations' accumulated and current earnings and profits. The IRS stance will result in excessive …
New Federalism And "Occupation Of The Field": Failing To Maintain State Constitutional Protections Within A Preemption Framework—Alverado V. Washington Public Power Supply System, 111 Wash. 2d 424, 759 P.2d 427 (1988), Cert. Denied, 109 S. Ct. 1637 (1989), Daryl R. Hague
Washington Law Review
In Alverado v. Washington Public Power Supply System, the Washington Supreme Court held that nonbinding agency action preempted Washington's constitutional right to privacy in the context of employee drug testing at nuclear power plants. This preemption holding was based on traditional "occupation of the field" standards, which prohibit concurrent state regulation in areas where the federal government exercises plenary power. Because it was based on an "occupation of the field" finding, the court's decision had the practical effect of permitting nonenforceable agency pronouncements to preempt state constitutional guarantees. An exception to traditional "occupation of the field" doctrine is proposed to …
The Effect Of Recent Federal Cases On Suspension Of The Washington General Assembly Law By Operation Of The Federal Bankruptcy Act, Warren Shattuck
The Effect Of Recent Federal Cases On Suspension Of The Washington General Assembly Law By Operation Of The Federal Bankruptcy Act, Warren Shattuck
Washington Law Review
Since Armour & Co. v. Becker the Washington court has made clear its position on suspension of our general assignment law by the Bankruptcy Act. In Tacoma Grocery Co. v. Doersch on authority of the Armour case and Interational Shoe Co. v. Pinkus a non-assenting creditor was permitted to garnishee the assigned property in the hands of the assignee. A few months later in Anderson v. Zelensky a creditor who had not taken under a general assignment recovered judgment on his claim despite the debtor's discharge pursuant to Rem. Com. Stat. sec. 1100. The only conclusion which can be drawn …
Land Tenure In The Pacific: The Context For Native Hawaiian Land Rights., Charles F. Wilkinson
Land Tenure In The Pacific: The Context For Native Hawaiian Land Rights., Charles F. Wilkinson
Washington Law Review
I met Maivân Clech Lâm at a conference on Hawaiian Native Sovereignty in May 1987. At that time we discussed her research on Native Hawaiian land rights and discovered many parallels to the land rights of Native Americans. At the request of the editors of the Washington Law Review, I am very pleased to write this introduction to Ms. Lâm's important work, which deals at once with the unique situation in Hawai'i and with the overriding issues relating to aboriginal peoples the world over.
The Kuleana Act Revisited: The Survival Of Traditional Hawaiian Commoner Rights In Land, Maivân Clech Lâm
The Kuleana Act Revisited: The Survival Of Traditional Hawaiian Commoner Rights In Land, Maivân Clech Lâm
Washington Law Review
The issue of aboriginal land rights raises significant legal and moral questions. The starting point for discussion of Native Hawaiian land rights is the Kuleana Act of 1850. This Act enabled Hawaiian commoners, for the first time in Hawaiian history, to acquire fee simple title to land. The Act did not, however, contain provisions simultaneously terminating their traditional rights in land. What these traditional rights consist of, and to whom they apply, remain relevant issues. The author examines the Act in the context of its surrounding history, laws, and judicial interpretations, and concludes that the Kuleana Act introduced a system …
Indirect Discrimination Under Title Vii: Expanding Male Standing To Sue For Injuries Received As A Result Of Employer Discrimination Against Females, N. Morrison Torrrey
Indirect Discrimination Under Title Vii: Expanding Male Standing To Sue For Injuries Received As A Result Of Employer Discrimination Against Females, N. Morrison Torrrey
Washington Law Review
Historically, both men and women have had the right to seek redress under Title VII of the Civil Rights Act of 1964 for injuries they have received as a result of sex discrimination. In recent years, the federal circuits have split on whether to give men standing in one particular category of such cases: employment discrimination cases where, although both men and women have been injured, the discrimination has been targeted only at women. The author analyzes the recent male standing cases in the context of basic standing principles and their past application to other types of Title VII plaintiffs. …
Proof And Prejudice: A Constitutional Challenge To The Treatment Of Prejudicial Evidence In Federal Criminal Cases, D. Craig Lewis
Proof And Prejudice: A Constitutional Challenge To The Treatment Of Prejudicial Evidence In Federal Criminal Cases, D. Craig Lewis
Washington Law Review
The United States Supreme Court held its 1970 decision In re Winship that in criminal prosecutions the Constitution requires proof of guilt beyond a reasonable doubt. Professor Lewis argues that Winship governs the validity of evidence rules in criminal cases and requires that rules of evidence do not impair the reliability of criminal convictions. The author concludes that Federal Rule of Evidence 403, which permits the admission of prejudicial evidence unless the danger of unfair prejudice substantially outweighs probative value, violates this requirement. Rule 403 substantially increases the risk of erroneous decisionmaking and prescribes a balancing test that unconstitutionally places …
Forum-Selection Clauses: Should State Or Federal Law Determine Validity In Diversity Actions?—Stewart Organization, Inc. V. Ricoh Corp., 108 S. Ct. 2239 (1998), Eric Fahlman
Washington Law Review
Forum-selection clauses are contractual provisions that confine future litigation to particular courts. Such clauses are common in interstate contracts despite uncertainty concerning their validity. Before Stewart Organization, Inc. v. Ricoh Corp., the circuit courts were divided as to whether federal courts with diversity jurisdiction were compelled to determine forum-selection clause validity in accordance with state law, as directed by Erie R.R. Co. v. Tompkins. In Stewart, the United States Supreme Court ruled that federal courts did not have to apply state law. Instead, the court held that the federal transfer statute, 28 U.S.C. § 1404(a), governed forum-selection clause validity. A …
Washington's Special Relationship Exception To The Public Duty Doctrine, Jenifer Kay Marcus
Washington's Special Relationship Exception To The Public Duty Doctrine, Jenifer Kay Marcus
Washington Law Review
The public duty doctrine states that in order for a person to recover tort damages from a governmental entity, the individual must prove that the governmental entity breached a duty owed to him or her particularly, and not just a breach of a duty owed to the public. The "special relationship" exception to the doctrine provides a mechanism for proving a particularized duty. The Washington Supreme Court has now restricted this exception. By restricting the exception, the court may inappropriately bar certain injured plaintiffs from recovery. The restriction may also violate Washington statutes abrogating governmental immunity by giving government defendants …
"Respondent Inferior": The Rule Of Vanderpool V. Grange Insurance Association, 110 Wash. 2d 483, 756 P.2d 111 (1998)?, Karen P. Clark
"Respondent Inferior": The Rule Of Vanderpool V. Grange Insurance Association, 110 Wash. 2d 483, 756 P.2d 111 (1998)?, Karen P. Clark
Washington Law Review
At common law, the majority of states held that a tort claimant's release of either an employer whose sole liability was vicarious or the employee who had committed the tort operated to release the other. Washington follows this position for releases of an employee, but Vanderpool v. Grange Insurance Association announces a different rule for releases of an employer. This Note examines Vanderpool in view of relevant public policies, statutes, and prior case law and recommends adopting a rule that the release of a solvent employer operate to release its employee-tortfeasor.
Protecting The Inmate's Right To Refuse Antipsychotic Drugs—Harper V. State, 110 Wash. 2d 873, 759 P.2d 358 (1988), Cert. Granted, 109 S. Ct. 1337 (1989), Amanda E. Lee
Washington Law Review
Antipsychotic drugs are used to treat mentally ill inmates in Washington prisons. Previously, inmates who refused drugs were entitled to an administrative hearing before involuntary treatment began. Harper v. State recognized a constitutional liberty interest in refusing antipsychotics, and established new measures, including a judicial hearing, notice, and appointed counsel, to protect the prisoner's interest. A due process analysis of the right to refuse demonstrates that the court's procedures may not go far enough to protect the inmate from unwanted treatment that cannot cure the mental illness and that may cause disabling side effects. Clearer definitions of state interests in …
Compressing Testamentary Intent Into Inter Vivos Delivery: What Makes A Conveyance Effective?—In Re Estate Of O'Brien, 109 Wash. 2d 913, 749 P.2d 154 (1988), Susan Tracey Stearns
Compressing Testamentary Intent Into Inter Vivos Delivery: What Makes A Conveyance Effective?—In Re Estate Of O'Brien, 109 Wash. 2d 913, 749 P.2d 154 (1988), Susan Tracey Stearns
Washington Law Review
In In re Estate of O'Brien, the Supreme Court of Washington held that intent to pass a deed title at death fulfills the inter vivos delivery requirement and that the will substitute statute removes ineffective conveyances from the will statute requirement. This Note concludes that the O'Brien interpretations of delivery and the will substitute statute are misguided, and recommends judicial reversal of the delivery ruling and a legislative rewording of the statute.
State Constitutional Law, The United States Supreme Court, And Democratic Accountability: Is There A Crocodile In The Bathtub?, Robert F. Utter
State Constitutional Law, The United States Supreme Court, And Democratic Accountability: Is There A Crocodile In The Bathtub?, Robert F. Utter
Washington Law Review
Justice Robert F. Utter of the Washington Supreme Court analyzes the nature of judicial review by state courts interpreting state constitutions. The Article emphasizes the democratic nature of state court decisions. The public may counteract unpopular state court opinions by either voting state court judges out of office or by amending the state constitution. On the other hand, court opinions may be either affirmatively approved or ratified by inaction. State courts also serve as experimental laboratories for the United States Supreme Court by gauging the public response to and practicality of constitutional doctrines. Justice Utter suggests that the more democratic …
Home Rule: An Essay On Pluralism, Michael Libonati
Home Rule: An Essay On Pluralism, Michael Libonati
Washington Law Review
Home rule can be viewed as a metaphor for the policies of decentralization and diffusion of power. This Essay aims to rediscover some of the deep historical roots of the policy and practice of local self-government. The Essay also explores some of the ways in which local autonomy can be reimagined in contemporary contexts.