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Articles 1 - 30 of 40
Full-Text Articles in Law
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Washington Law Review
The preclusive effect of a judgment is an age-old topic. Why then add more to the existing commentary? Principally, it is because within recent years there have been noteworthy cases and significant developments in the governing principles. The purposes of this article are to recall the orthodoxy of the subject, to note the changes that have been occurring, and to suggest what may be forthcoming.
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Washington Law Review
In American Federation of Labor-Congress of Industrial Organizations v. Eu (AFL-CIO), the California Supreme Court removed a proposed initiative from the ballot prior to the election. The proposed initiative would have compelled the California legislature to apply.to Congress for a limited constitutional convention. The court recognized a general rule against pre-election review of initiatives, but nevertheless found pre-election review appropriate under an exception to the rule. The exception invoked in AFL-CIO allows pre-election review where the challenger alleges that the proposed measure is "beyond the power of the people to enact." This Note analyzes the AFL-CIO court's exercise of pre-election …
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Washington Law Review
Federal regulation of securities traditionally, and almost unquestioningly, has included regulation of the press. Central to governance of the investment marketplace are systems of prior restraint and mandatory disclosure premised upon investor protection but antithetical to first amendment principles. The constitutionality of those systems largely has been uncontested. Since commercial speech has emerged as a protected form of expression, however, it is fitting to assess the compatibility of securities regulation with the first amendment.
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Washington Law Review
This Comment analyzes the approaches of the courts of appeals to the confidential source exemption. First, the Comment presents a brief history of the Freedom of Information Act and the development of exemption 7(D) in Congress and the courts. The Comment explains and criticizes the conflicting judicial treatment of the agency's burden under the exemption. Finally, the Comment proposes a uniform approach to the agency burden that is consistent with the policies underlying both the Act and the exemption.
Patent Infringement: Redefining The "Making" Standard To Include Partial Assemblies—Paper Converting Machine Co. V. Magna-Graphics Corp., 745 F.2d 11 (Fed. Cir. 1984), Stuart Watt
Washington Law Review
In Paper Converting Machine Co. v. Magna-Graphics Corp., the Federal Circuit rejected the traditional operable assembly standard for determining a "making." In its place, the court adopted a more flexible standard that included partial assemblies that have no significant noninfringing purpose. This test for infringement significantly broadens patent protection and further restricts the permissible activity of competitors allowed during the patent term. The court's standard grants the patent owner a de facto monopoly beyond the expiration date by restricting competitors from making preparations to enter the market after the patent expires. The decision represents a movement by the Federal Circuit …
Statutory Liens On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Statutory Liens On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Washington Law Review
The Washington Supreme Court has recently ruled that the federal Maritime Lien Act preempts state lien law. In Farwest Steel Corp. v. DeSantis, the court held, specifically, that the Maritime Lien Act preempts the state chattel lien and "boat lien" statutes. While the Farwest Steel holding seems to state the obvious, the limits of federal preemption are far from clear. Federal law does not allocate all of the risks involved in building, outfitting, financing, servicing, repairing, and retiring Blackship. The statutes "preempted" in Farwest Steel still provide the only available law for many transactions involving Blackship in Washington. …
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Washington Law Review
Federal regulation of securities traditionally, and almost unquestioningly, has included regulation of the press. Central to governance of the investment marketplace are systems of prior restraint and mandatory disclosure premised upon investor protection but antithetical to first amendment principles. The constitutionality of those systems largely has been uncontested. Since commercial speech has emerged as a protected form of expression, however, it is fitting to assess the compatibility of securities regulation with the first amendment.
Statutory Liends On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Statutory Liends On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Washington Law Review
The Washington Supreme Court has recently ruled that the federal Maritime Lien Act preempts state lien law. In Farwest Steel Corp. v. DeSantis, the court held, specifically, that the Maritime Lien Act preempts the state chattel lien and "boat lien" statutes. While the Farwest Steel holding seems to state the obvious, the limits of federal preemption are far from clear. Federal law does not allocate all of the risks involved in building, outfitting, financing, servicing, repairing, and retiring Blackship. The statutes "preempted" in Farwest Steel still provide the only available law for many transactions involving Blackship in Washington. The major …
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Washington Law Review
The preclusive effect of a judgment is an age-old topic. Why then add more to the existing commentary? Principally, it is because within recent years there have been noteworthy cases and significant developments in the governing principles. The purposes of this article are to recall the orthodoxy of the subject, to note the changes that have been occurring, and to suggest what may be forthcoming.
Patent Infringement: Redefining The "Making" Standard To Include Partial Assemblies—Paper Converting Machine Co. V. Magna-Graphics Corp., 745 F.2d 11 (Fed. Cir. 1984), Stuart Watt
Washington Law Review
In Paper Converting Machine Co. v. Magna-Graphics Corp., the Federal Circuit rejected the traditional operable assembly standard for determining a "making." In its place, the court adopted a more flexible standard that included partial assemblies that have no significant noninfringing purpose. This test for infringement significantly broadens patent protection and further restricts the permissible activity of competitors allowed during the patent term. The court's standard grants the patent owner a de facto monopoly beyond the expiration date by restricting competitors from making preparations to enter the market after the patent expires. The decision represents a movement by the Federal Circuit …
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Washington Law Review
This Comment analyzes the approaches of the courts of appeals to the confidential source exemption. First, the Comment presents a brief history of the Freedom of Information Act and the development of exemption 7(D) in Congress and the courts. The Comment explains and criticizes the conflicting judicial treatment of the agency's burden under the exemption. Finally, the Comment proposes a uniform approach to the agency burden that is consistent with the policies underlying both the Act and the exemption.
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Washington Law Review
Since its creation in 1971, the Washington special inquiry judge procedure has operated virtually without constitutional challenge. However, the recent case of State v. Neslund raised the issue of whether a special inquiry judge can properly act as a neutral and detached magistrate to issue search warrants. The United States Constitution and the Washington State Constitution set forth basic guarantees of privacy and fairness, including the right to be free from unreasonable searches and seizures. Generally a "reasonable" search must be accompanied by a search warrant issued upon a determination of probable cause by a neutral and detached magistrate. This …
Washington Lawyers Under The Purview Of The State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short V. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984), Jeffrey M. Koontz
Washington Lawyers Under The Purview Of The State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short V. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984), Jeffrey M. Koontz
Washington Law Review
In Short v. Demopolis the Washington Supreme Court held that certain "entrepreneurial aspects" of the practice of law constitute "trade or commerce" for purposes of RCW 19.86, Washington's consumer protection and antitrust law. This holding brings members of the legal community under antitrust and consumer protection scrutiny as embodied in the Consumer Protection Act (CPA). The Demopolis decision, however, only applies to the "entrepreneurial aspects" of the practice of law. Although many courts and commentators have struggled with the question of whether professionals should be given preferential treatment, the Washington court is the first to specifically exclude legal malpractice from …
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Washington Law Review
In American Federation of Labor-Congress of Industrial Organizations v. Eu (AFL-CIO), the California Supreme Court removed a proposed initiative from the ballot prior to the election. The proposed initiative would have compelled the California legislature to apply.to Congress for a limited constitutional convention. The court recognized a general rule against pre-election review of initiatives, but nevertheless found pre-election review appropriate under an exception to the rule. The exception invoked in AFL-CIO allows pre-election review where the challenger alleges that the proposed measure is "beyond the power of the people to enact." This Note analyzes the AFL-CIO court's exercise of pre-election …
Washington Lawyers Under The Purview Of The State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short V. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984), Jeffrey M. Koontz
Washington Lawyers Under The Purview Of The State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short V. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984), Jeffrey M. Koontz
Washington Law Review
In Short v. Demopolis the Washington Supreme Court held that certain "entrepreneurial aspects" of the practice of law constitute "trade or commerce" for purposes of RCW 19.86, Washington's consumer protection and antitrust law. This holding brings members of the legal community under antitrust and consumer protection scrutiny as embodied in the Consumer Protection Act (CPA). The Demopolis decision, however, only applies to the "entrepreneurial aspects" of the practice of law. Although many courts and commentators have struggled with the question of whether professionals should be given preferential treatment, the Washington court is the first to specifically exclude legal malpractice from …
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Washington Law Review
Since its creation in 1971, the Washington special inquiry judge procedure has operated virtually without constitutional challenge. However, the recent case of State v. Neslund raised the issue of whether a special inquiry judge can properly act as a neutral and detached magistrate to issue search warrants. The United States Constitution and the Washington State Constitution set forth basic guarantees of privacy and fairness, including the right to be free from unreasonable searches and seizures. Generally a "reasonable" search must be accompanied by a search warrant issued upon a determination of probable cause by a neutral and detached magistrate. This …
The Scope Of Judicial Review Of Agency Actions In Washington Revisited—Doctrine, Analysis, And Proposed Revisions, Tim J. Filer
The Scope Of Judicial Review Of Agency Actions In Washington Revisited—Doctrine, Analysis, And Proposed Revisions, Tim J. Filer
Washington Law Review
This Comment analyzes current Washington law on the scope of judicial review, and compares it to recently proposed revisions to the Washington Administrative Procedure Act (APA). Part I discusses the doctrine surrounding the review of agency actions by Washington courts. Part II examines Washington case law and identifies several elements that determine the intensity with which the court will examine a particular agency action, regardless of the doctrinally prescribed deference. Part III compares and discusses the proposed revisions to the Washington APA. While based primarily on the latest Model State APA, 6 the proposed revisions contain some significant variations. The …
Increased Risk Of Disease From Hazardous Waste: A Proposal For Judicial Relief, Brent Carson
Increased Risk Of Disease From Hazardous Waste: A Proposal For Judicial Relief, Brent Carson
Washington Law Review
This Comment addresses the need to provide adequate and present remedies for individuals exposed to toxic wastes. Part I describes the prevailing "reasonable medical certainty" rule and shows how it unjustly prevents recovery by plaintiffs exposed to hazardous waste. Part II examines one method of avoiding the injustice of the "reasonable medical certainty" rule. The adoption of an "extent of the injury" rule would allow courts to recognize genetic or cellular damage as injury, and provide some hazardous waste victims with a remedy for their increased risk of disease. In Part III a better solution is proposed—accepting increased risk as …
Practice Of Law: Real Estate Brokers Authorized To Complete Transaction Forms—Cultum V. Heritage House Realtors, Inc., 103 Wn. 2d 623, 694 P.2d 630 (1985), Mark Reeve
Washington Law Review
In Cultum v. Heritage House Realtors, Inc., the Washington Supreme Court carved out a limited exception to the statutory prohibition against the unauthorized practice of law. This new exception represents a proper balancing of the interests of real estate brokers, lawyers and the public. However, flaws in the majority's reasoning may lead to confusion in the future application of the ruling unless greater attention is paid to the underlying rationale of the decision and the arguments made by the concurrence.
The Demise Of The Intra-Enterprise Conspiracy Doctine: Flexible Antitrust Enforcement Policy Abandoned In A Maze Of Economic Certainty—Copperweld Corp. V. Independence Tube Corp., 104 S. Ct. 2731 (1984), S. John Goodwin
Washington Law Review
In Copperweld Corp. v. Independence Tube Corp. the United States Supreme Court held that corporations and their wholly owned subsidiaries cannot conspire and, thus, cannot violate section 1 of the Sherman Act. The decision signals an important shift in interpretation of the Sherman Act. Before Copperweld, corporations and their wholly owned subsidiaries were subject to conspiratorial liability under the Act. The Supreme Court had recognized intra-enterprise conspiracies on at least six occasions. Despite their diverging views on how broadly the doctrine was to be interpreted, the federal courts of appeals had unanimously applied the doctrine. The Court implicitly addressed the …
Unused Riparian Water Rights In Washington—Department Of Ecology V. Abbott, 103 Wn. 2d 686, 694 P.2d 1071 (1985), Lynn B. Squires
Unused Riparian Water Rights In Washington—Department Of Ecology V. Abbott, 103 Wn. 2d 686, 694 P.2d 1071 (1985), Lynn B. Squires
Washington Law Review
In Department of Ecology v. Abbott, the Washington Supreme Court addressed the long-standing question of whether landowners who failed to exercise consumptive riparian rights3 within a reasonable period after the adoption of the Water Code of 1917 (1917 Code) lost those rights. The question arose when a riparian landowner, who had registered consumptive water rights as required by statute in 1971, was denied those rights in a 1982 stream adjudication. The basis for the denial was that the landowner's riparian rights had not been continuously exercised since 1917. The Water Rights Registration Act, with which the landowner complied in 1971, …
Anatomy Of Legal Education (Report Of The Tunks Committee): The Way We Were And The Way We Are, Afton Dekanal
Anatomy Of Legal Education (Report Of The Tunks Committee): The Way We Were And The Way We Are, Afton Dekanal
Washington Law Review
Lehan K. Tunks, then Dean of Rutgers Law School in Newark, chaired an Association of American Law Schools Committee on Law School Administration and University Relations that conducted "an inquiry into the adequacy and mobilization of the financial and human resources in American law schools for research and education for the legal profession...." The study, begun in 1955, resulted in a 1961 report, Anatomy of Modern Legal Education, examining the 1956-57 operation of the 129 law schools then on the American Bar Association's approved list. A 146-page questionnaire answered by the dean of each school and a shorter questionnaire answered …
Patriation Of The Canadian Constitution: Comparative Federalism In A New Context, William C. Hodge
Patriation Of The Canadian Constitution: Comparative Federalism In A New Context, William C. Hodge
Washington Law Review
The Canadian constitution, also known as the British North America Act, 1867, has been "patriated." Of that bundle of sticks that, fastened together, constitute sovereign autonomy, a significant few continued to rest with the British Parliament until 1982—a condition the Canadians found humiliating and the British embarrassing. With the passage of the Canada Act by the Parliament of the United Kingdom on March 29, 1982, and with royal approval, the Canadians became masters of their own house, having gained complete internal powers of constitutional amendment. But an equally important constitutional event was the process of patriation itself inasmuch as it …
The Outward Limit Of The Department Of Interior's Authority Over Submerged Lands—The Effect Of Customary International Law On The Outer Continental Shelf Lands Act, Donna Darm
Washington Law Review
After briefly establishing the relevant background of the controversy, this Comment suggests that neither the President's proclamation nor the new customary law of the EEZ operates to change domestic law and concludes that DOI's claim exceeds its authority under domestic law.
Antitrust And Nonmarket Goods: The Supreme Court Fumbles Again—National Collegiate Athletic Association V. Board Of Regents, 104 S. Ct. 2948 (1984), Jonathan E. Seib
Antitrust And Nonmarket Goods: The Supreme Court Fumbles Again—National Collegiate Athletic Association V. Board Of Regents, 104 S. Ct. 2948 (1984), Jonathan E. Seib
Washington Law Review
In National Collegiate Athletic Association v. Board of Regents, the Supreme Court held that the NCAA's regulations restricting television broadcasts of college football games violated section one of the Sherman Antitrust Act. The result stemmed primarily from the Court's conclusion that the regulations did not promote their asserted purposes. However, the crucial aspect of the opinion is that, contrary to what precedent would suggest, the Court determined that the NCAA's purposes were legitimate in the first place. This Note addresses the question of why the NCAA Court reasoned the way it did and examines the means by which it arrived …
State Law In Federal Courts: The Implications Of De Novo Review—In Re Mclinn, 739 F.2d 1395 (9th Cir. 1984), Wendy E. Russell
State Law In Federal Courts: The Implications Of De Novo Review—In Re Mclinn, 739 F.2d 1395 (9th Cir. 1984), Wendy E. Russell
Washington Law Review
In In re McLinn, the Ninth Circuit Court of Appeals rejected this traditional reliance on the district court's determination of state law and held that issues of state law in federal court will be reviewed under a new, de novo standard. The McLinn case reveals a dilemma in the treatment of state law in federal courts. The Erie doctrine requires federal courts to ascertain and apply state law, and gives them a broad responsibility for doing so. At the same time federal courts are unable to accurately predict and apply unresolved issues of state law. This Note discusses the doctrine …
Separation Of Powers And Adjudication Of Human Rights Clalims Under The Alien Tort Claims Act—Hanoch Tel-Oren V. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), Cert. Denied, 105 S. Ct. 1354 (1985), Laura Wishik
Washington Law Review
This Note examines the opinions in Tel-Oren that relied upon separation of powers principles to foreclose adjudication of section 1350 suits. The Note explores the underlying reasons for advocating judicial deference on foreign affairs issues. Judge Robb's application of the political question doctrine to Tel-Oren, and Judge Bork's use of both the political question and act of state doctrines as evidence of separation of powers principles that require judicial abstention, are analyzed in detail. Alternative principles that limit jurisdiction over such claims are examined, including the act of state doctrine, sovereign immunity, forum non conveniens, and the evidence required to …
Implementing The Incentive Purpose Of The Private Attorney General Exception—Miotke V. City Of Spokane, 101 Wn. 2d 307, 678 P.2d 803 (1984), Jim Oesterle
Washington Law Review
This Note proposes both selective criteria and a procedure designed to implement the unique purpose of the private attorney general exception. The Note first describes the development of the private attorney general exception in both federal and state courts, and then traces the development of equitable exceptions in Washington. The analysis begins by identifying and comparing the purposes of the private attorney general, common fund, and substantial benefit exceptions, and critiques the ability of the Miotke standard to implement the purpose of the private attorney general exception. The analysis then proposes more discriminating criteria and a procedural approach that effectively …
Notes On The Reliance Interest, Robert Birmingham
Notes On The Reliance Interest, Robert Birmingham
Washington Law Review
The topic is Contract Damages. The interests are defined by how we protect them. Imagine a breaching promisor. We protect the reliance interest of the promisee by requiring the promisor to put her in a position as good as she would have been in had the parties not contracted. The other interests are the restitution interest, which we protect by requiring the promisor to give back what the promisee has given him; and the expectation interest, which we protect by requiring the promisor to put the promisee in a position as good as she would have been in had he …
A Proposal To End Nlrb Deferral To The Arbitration Process, Cornelius J. Peck
A Proposal To End Nlrb Deferral To The Arbitration Process, Cornelius J. Peck
Washington Law Review
In January 1984 the NLRB, reconstituted by President Reagan's appointees, announced significant changes in the Board's policies concerning deferral to the arbitration processes established by employers and unions in their collective bargaining agreements. The new policies are redolent with the politics of a changed administration rather than expertise in labor relations. The changes continue the Board's uncertain treatment of the relationship between its jurisdiction to prevent unfair labor practices and arbitrators' decisions concerning collective bargaining agreements. The newly announced policies are consistent with the conviction that the federal government should sharply reduce its regulatory activities, transferring its previous responsibilities to …