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Articles 1 - 29 of 29
Full-Text Articles in Law
The Protected Staus Of Opinion Work Product: A Misconduct Exception, Andrea L. Borgford
The Protected Staus Of Opinion Work Product: A Misconduct Exception, Andrea L. Borgford
Washington Law Review
Opinion work product generally has remained immune from discovery, although two increasingly problematic exceptions have developed to counter this immunity. The vague "at-issue" exception permits discovery of documented mental impressions when those mental impressions are central to the subject matter of the suit. The overly narrow "crime-fraud" exception opens opinion work product to discovery when it has been developed in furtherance of a crime or fraud. Because these redundant yet inadequate exceptions share common elements and goals, courts should streamline this important area of discovery law by condensing them into a new misconduct exception.
A Primer On Public Land Law, Marla E. Mansfield
A Primer On Public Land Law, Marla E. Mansfield
Washington Law Review
This article will examine the major missions and jurisdictions of the main federal land management systems, namely the public domain, the national forests, national parks, wildlife refuges, and wilderness areas. To introduce this examination, the constitutional provisions which justify the governing statutes will be explored. Additionally, as a prelude to the specific statutory mandates, this Article will review the system of reservations, withdrawals, and classifications. Preemption doctrine also will be addressed because states often desire to regulate activities on federal lands. Finally, the Article will distinguish between multiple use and dominant use.
Back To The Future: Federal Mail And Wire Fraud Under 18 U.S.C. § 1346, John E. Gagliardi
Back To The Future: Federal Mail And Wire Fraud Under 18 U.S.C. § 1346, John E. Gagliardi
Washington Law Review
In 1988, Congress added section 1346 to the federal mail and wire fraud statutes to overturn the Supreme Court decision of McNally v. United States and provide statutory protection of the "intangible right of honest services." This Comment analyzes the extent to which section 1346 restores the protection of intangible rights as existed prior to McNally and concludes that most if not all of those intangible rights are again covered by the statutes. Further, this Comment recommends that the judiciary limit the application of the mail and wire fraud statutes in the private sector to cases involving a breach of …
From Freeman To Brown And Back Again: Principle, Pragmatism, And Proximate Cause In The School Desegregation Decisions, David Crump
Washington Law Review
A court deciding a constitutional case should announce a clear principle, one that the people can easily understand and follow. At the same time, such a decision should be pragmatic, in that it should effectively accomplish its goals while treating all affected persons fairly. The simultaneous fulfillment of these two criteria, however, can sometimes be extraordinarily difficult. In this article, Professor Crump considers how well the school desegregation remedies ordered by the Supreme Court fit the tests of principle and pragmatism. He concludes that the early decisions, as well as many of the later ones, do not achieve both goals, …
Corporate Redemption In The Context Of Martial Dissolutions: I.R.C. § 1041 And Arnes V. United States, Thomas Monaghan
Corporate Redemption In The Context Of Martial Dissolutions: I.R.C. § 1041 And Arnes V. United States, Thomas Monaghan
Washington Law Review
In Ames v. United States the Ninth Circuit held that Temporary Treasury Regulation § 1.1041-IT, A-9 extended nonrecognition treatment to an ex-wife whose 50 percent interest in a corporation was redeemed pursuant to a divorce settlement, thereby leaving her ex-husband as the sole owner of the corporation. In doing so, the court not only contradicted the precedential treatment of bootstrap stock acquisitions but also misapplied its own interpretation of this regulation. This Note argues that a transaction such as that in Ames falls outside of the scope of the regulation and, therefore, the precedent surrounding bootstrap acquisitions should have controlled.
Fifra Preemption Of State Common Law Claims After Cipollone V. Liggett Group, Inc., R. David Allnutt
Fifra Preemption Of State Common Law Claims After Cipollone V. Liggett Group, Inc., R. David Allnutt
Washington Law Review
In Cipollone v. Liggett Group, Inc., the Supreme Court reaffirmed a narrow application of the federal preemption doctrine where preemption would prevent a state from exercising its police powers through the common law. Cipollone marks the latest in a line of Supreme Court decisions requiring courts to employ a presumption against preemption if congressional intent to preempt is not clear. Nevertheless, recent circuit court decisions have held that FIFRA preempts state common law claims against pesticide manufacturers. This Comment concludes that courts continuing to hold FIFRA preemptive of state common law both misinterpret congressional intent and misapply Cipollone.
Due Process In Civil Forfeiture Cases In Washington After Tellevik V. Real Property, Zhihong Pan
Due Process In Civil Forfeiture Cases In Washington After Tellevik V. Real Property, Zhihong Pan
Washington Law Review
In Tellevik v. Real Property, the Washington Supreme Court held that the government's seizure of real property through an ex parte proceeding complied with the due process requirements of the federal Constitution. This Note examines the Tellevik decision in light of United States Supreme Court case law on procedural due process and lower federal court rulings in real property forfeiture cases. It argues that the Tellevik court, in reaching its decision, misapplied federal case law and concludes that due process requires an opportunity for a full hearing before the government can deprive an owner of real property.
Complete Justice: Upholding The Principles Of Title Vii Through Appropriate Treatment Of After-Acquired Evidence, Jennifer Miyoko Follette
Complete Justice: Upholding The Principles Of Title Vii Through Appropriate Treatment Of After-Acquired Evidence, Jennifer Miyoko Follette
Washington Law Review
Congress enacted Title VII of the 1964 Civil Rights Act to combat employment discrimination and to provide relief to discrimination victims. The 1972 and 1991 amendments strengthened the statute and delineated a clear congressional commitment to the statute's purposes. In most cases the courts have utilized the statutes remedial provisions to deter further discriminatory conduct and to provide relief to victims. However, the majority of federal circuit courts which have addressed the issue deny a remedy to plaintiffs in cases where an employer discovers evidence of an employee's misrepresentations on a resume or evidence of misconduct on the job after …
Proportionality And Punishment: Double Counting Under The Federal Sentencing Guidelines, Gary Swearingen
Proportionality And Punishment: Double Counting Under The Federal Sentencing Guidelines, Gary Swearingen
Washington Law Review
The Federal Sentencing Guidelines enhance sentences when the commission of a crime includes certain kinds of egregious conduct. The guidelines define such egregious conduct in a way that allows the sentencing judge to enhance the defendant's sentence twice for the same conduct—once as a "characteristic" of the specific offense for which the defendant is convicted and again under a general "adjustments" section. The federal circuit courts are divided concerning whether the guidelines permit double counting. This Comment examines the courts' differing interpretations of the governing statutes and concludes that the guidelines do not permit double counting unless explicitly stated in …
Avoidability Of Foreclosure Sales Under Section 548(A)(2) Of The Bankruptcy Code: Revisiting The Transfer Issue And Standardizing Reasonable Equivalency, Vic Sung Lam
Washington Law Review
Federal courts consider the 1984 amendments to the Bankruptcy Code to have conclusively defined "transfer" to include foreclosure sales under section 548(a)(2). This Comment questions this widely accepted interpretation. Moreover, federal courts have strongly disagreed on the meaning of "reasonably equivalent value" under section 548(a)(2) of the Bankruptcy Code for the purpose of avoiding a foreclosure sale as a constructive fraudulent transfer. This Comment examines the three dominant but divergent approaches to determining reasonable equivalency. It concludes that both the Durrett 70-percent rule and the Madrid state-procedural approach are inappropriate standards because they fail to comport with the statutory language …
Death Wish: What Washington Court Should Do When A Capital Defendant Wants To Die, Laura A. Rosenwald
Death Wish: What Washington Court Should Do When A Capital Defendant Wants To Die, Laura A. Rosenwald
Washington Law Review
The Washington Supreme Court held in State v. Dodd that a capital defendant may waive general review of conviction and sentence, and failed to determine whether a defendant may also withhold all mitigating evidence from the sentencing proceeding. The holding limits appellate oversight of death sentences to a degree that fails to ensure Washington's interest in reliable capital punishment. The court should have required general review of both conviction and sentencing in all capital cases. It also should have established a procedure for third-party presentation of mitigating evidence on behalf of capital defendants who insist on withholding such evidence.
Statistical Proof Of Discrimination: Beyond "Damned Lies", Kingsley R. Browne
Statistical Proof Of Discrimination: Beyond "Damned Lies", Kingsley R. Browne
Washington Law Review
Evidence that an employer's work force contains fewer minorities or women than would be expected if selection were random with respect to race and sex has been taken as powerful—and often sufficient—evidence of systematic intentional discrimination. In relying on this kind of statistical evidence, courts have made two fundamental errors. The first error is assuming that statistical analysis can reveal the probability that observed work-force disparities were produced by chance. This error leads courts to exclude chance as a cause when such a conclusion is unwarranted. The second error is assuming that, except for random deviations, the work force of …
The Right To Development As A Mechanism For Group Autonomy: Protection Of Tibetan Cultural Rights, Michele L. Radin
The Right To Development As A Mechanism For Group Autonomy: Protection Of Tibetan Cultural Rights, Michele L. Radin
Washington Law Review
Traditional legal mechanisms have failed to protect minority cultural integrity rights for the Tibetan people. Modem human rights law, however, offers a mechanism to protect cultural integrity through group autonomy. This Comment argues that the right to development can protect Tibetan cultural rights through such a claim for group autonomy over development.
The Many Meanings Of "Wherefore" In Legal History, Louis E. Wolcher
The Many Meanings Of "Wherefore" In Legal History, Louis E. Wolcher
Washington Law Review
This essay describes the strategies that sometimes allow me to make sense of the answers that people give to the question Why? when it comes up in scholarly accounts of legal outcomes from the past. The essay is constructive, not deconstructive; programmatic, not polemical. I mean to sketch and recommend a way of thinking about legal history that I call methodological self-consciousness. "Methodological individualism" would be both inaccurate and accurate as a label for the essay's approach to questions of causality. The label is inaccurate, because it fails to express the heavy emphasis that I place on the dialectical relationship …
Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii
Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii
Washington Law Review
The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmoder theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the nlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmoder critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy …
Tipper Credibility, Noninformational Tippee Trading, And Abstention From Trading: An Analysis Of Gaps In The Insider Trading Laws, Steven R. Salbu
Tipper Credibility, Noninformational Tippee Trading, And Abstention From Trading: An Analysis Of Gaps In The Insider Trading Laws, Steven R. Salbu
Washington Law Review
The regulation of insider trading in the United States prohibits only a fraction of the kind of behaviors which the Securities and Exchange Commission sought to curb in the 1930s. This Article explains the problems created by trading on tipper credibility and noninformation, as well as the difficulties associated with insider abstention from trading. These practices are conceptually akin to trading on inside information, yet they fall beyond the purview of existing prohibitions. The Article examines potential vehicles for rendering the regulations more consistent, including authorization of all insider trading, policing of information, the creation of inferences of fraud from …
The Inadmissibility Of Professional Ethical Standards In Legal Malpractice Actions After Hizey V. Carpenter, Marc R. Greenough
The Inadmissibility Of Professional Ethical Standards In Legal Malpractice Actions After Hizey V. Carpenter, Marc R. Greenough
Washington Law Review
In Hizey v. Carpenter, the Washington Supreme Court became the only court of last resort to prohibit introduction of the Code of Professional Responsibility and the Rules of Professional Conduct as evidence of an attorney's common law duty of care in an action for legal malpractice. This Note examines the Hizey decision and argues that the court should not create a preferential standard for attorneys. Instead, the court should admit professional ethical standards as evidence in legal malpractice actions on the same basis that the court admits statutes, ordinances, and administrative rules in other actions for negligence.
From Quantification To Qualification: A State Court's Distortion Of The Law In In Re General Adjudication Of All Rights To Use Water In The Big Horn River System, Berrie Martinis
Washington Law Review
The Wyoming Supreme Court applied state law to Indian reserved water rights in its recent decision in In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III). Prior to Big Horn III, courts never applied state law to such rights. This Note argues that the Wyoming decision contradicts federal reserved water rights law and federal Indian law, and concludes that Congress should enact legislation overturning the Big Horn III decision.
Scott V. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases Of A Minor's Future Claim, Angeline Purdy
Scott V. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases Of A Minor's Future Claim, Angeline Purdy
Washington Law Review
In Scott v. Pacific West Mountain Resort, the Washington Supreme Court held that parents do not have legal authority to waive their children's future claims for personal injuries caused by a third party's negligence. This Note argues that the court departed from Washington precedent and ignored the implications of existing Washington law. Moreover, the court erroneously analogized children's future claims to children's existing claims by failing to adequately analyze the differences between the two situations. This Note thus concludes that because parents can already waive their children's causes of action in many situations, they should be allowed to do so …
The Effect Of Lucas V. South Carolina Coastal Council On The Law Of Regulatory Takings, Ann T. Kadlecek
The Effect Of Lucas V. South Carolina Coastal Council On The Law Of Regulatory Takings, Ann T. Kadlecek
Washington Law Review
In Lucas v. South Carolina Coastal Council, the United States Supreme Court established a two-part takings analysis. The first step is an "economically viable use" threshold question, subject to a nuisance exception. The second step is a balancing test in which courts weigh the public and private interests involved. Although this two-part analysis differs in structure from most lower court takings analyses, most courts already apply a functionally equivalent test. Therefore, unless the Court alters the unit of land to which it applies, this new analysis will have little effect on the outcome of takings challenges to land use regulations.
A Square Peg In A Round Hole: The Proper Substantial Similarity Test For Nonliteral Aspects Of Computer Programs, David A. Loew
A Square Peg In A Round Hole: The Proper Substantial Similarity Test For Nonliteral Aspects Of Computer Programs, David A. Loew
Washington Law Review
Since the Third Circuit's decision in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc. expanded copyright protection to include the nonliteral aspects of computer programs, courts have struggled to find a way to properly determine substantial similarity between programs, a necessary element of copyright infringement. In the Third Circuit, courts dissect competing programs and compare them in a one-step procedure. The Ninth Circuit uses a two-part process to objectively, and then subjectively, compare program elements. In Computer Associates International, Inc. v. Altai, Inc. the Second Circuit recommended a three-part substantial similarity test to filter out unprotectable elements and compare the …
Recognizing Sovereignty In Alaska Native Villages After The Passage Of Ancsa, Patricia Thompson
Recognizing Sovereignty In Alaska Native Villages After The Passage Of Ancsa, Patricia Thompson
Washington Law Review
The federal law principles of tribal sovereignty and Indian country define the parameters of tribal self-governance. In Alaska, however, federal and state courts remain divided on the issues of Alaska Native Village sovereignty and Indian country. This Comment examines the state and federal court treatment of these issues, and concludes that Native Villages are sovereign tribes and the lands set aside under the Alaska Native Claims Settlement Act should define the boundaries of Indian country in Alaska.
Reshaping The Federal Entrapment Defense: Jacobson V. United States, Elena Luisa Garella
Reshaping The Federal Entrapment Defense: Jacobson V. United States, Elena Luisa Garella
Washington Law Review
In Jacobson v. United States, the Supreme Court narrowed the types of evidence that the prosecution may rely on to show that a defendant was predisposed to commit a crime in cases where the defendant raises the entrapment defense. This Note examines the development of the entrapment doctrine and the doctrine's focus on the jury's role as the arbiter of the defendant's guilt or innocence. The Note argues that the Supreme Court strayed from its previous analysis of the defense by broadening the scenarios in which judges may find entrapment as a matter of law. Judicial activism in the context …
Admissibility Of Prior Theft Convictions To Impeach Criminal Defendants In Washington State, Hossein Nowbar
Admissibility Of Prior Theft Convictions To Impeach Criminal Defendants In Washington State, Hossein Nowbar
Washington Law Review
The majority of the federal circuit courts hold that prior theft convictions are not automatically admissible under Evidence Rule 609(a)(2) as crimes of dishonesty or false statement. The Washington Supreme Court departs from this conclusion and holds all theft crimes automatically admissible under ER 609(a)(2) as crimes of dishonesty or false statement. This Comment discusses the inherent problems in Washington's interpretation of the terms "dishonesty or false statement" in ER 609(a)(2) and suggests three possible solutions that may alleviate those problems.
Corporate Governane—The Role Of Special Litigation Committees, Charles W. Murdock
Corporate Governane—The Role Of Special Litigation Committees, Charles W. Murdock
Washington Law Review
In reviewing decisions of a special litigation committee, courts have generally applied the business judgment rule to the "second-tier" decision by the committee when it moves to dismiss litigation challenging alleged "first-tier" wrongdoing. While all courts inquire into the independence and good faith of the committee, and the adequacy of its procedures, a judicial split exists as to whether the court can inquire into the substantive reasons why the committee believes the litigation should be dismissed. This Article analyzes the nature of structural bias and contrasts the procedural rights which a plaintiff possesses in a judicial proceeding with the lack …
Indeterminancy, Complexity, And Fairness: Justifying Rule Simplication In The Law Of Taxation, John A. Miller
Indeterminancy, Complexity, And Fairness: Justifying Rule Simplication In The Law Of Taxation, John A. Miller
Washington Law Review
This Article addresses the appropriateness of elaborate tax rules, that is, rules that are long, detailed, specific, and interconnected, by reference to the debate among jurisprudential scholars concerning the determinacy of law. It gives special attention to the works of Professors Anthony D'Amato, Kent Greenawalt, Ken Kress, and Frederick Schauer by placing their ideas concerning legal indeterminacy into the context of tax law. Professor D'Amato asserts that law is entirely indeterminate. Professor Greenawalt believes that "many legal questions have determinate answers." Professor Kress believes that "the indeterminacy of the law is no more than moderate." Professor Schauer argues that highly …
A Minor Hazard: Social Hosts Liability In Washington After Hansen V. Friend, Laura Hoexter
A Minor Hazard: Social Hosts Liability In Washington After Hansen V. Friend, Laura Hoexter
Washington Law Review
In Hansen v. Friend, the Washington Supreme Court held that a host who furnishes alcohol to a minor in a social setting is liable for all resulting injuries to the minor. In reaching this result, the court limited the cause of action to minors, denying all third parties injured by intoxicated minors a claim against social hosts. Additionally, the court allowed intoxicated minors to bring an action for injuries resulting from any type of hazard they encountered while intoxicated. This Note examines the Hansen decision and proposes that, given the court's decision to impose civil liability upon hosts, the court …
The Case Against Copyright Protection For Programmable Logic Devices, Stephen C. Bishop
The Case Against Copyright Protection For Programmable Logic Devices, Stephen C. Bishop
Washington Law Review
Several commentators have argued that copyright protection should extend to protect logic equations incorporated in a type of semiconductor chip called a programmable logic device (PLD). They reach this result by analogizing to the storage of computer software in memory chips, an embodiment that is currently protected under the copyright laws. This Comment analyzes logic equations incorporated in a PLD with respect to the copyright statute, utilitarian device doctrine, and the legislative history of the Semiconductor Chip Protection Act. It concludes that copyright protection should not extend to protect the logic equations incorporated in a PLD.
Judicial Deference To Administrative Agencies' Legal Interpretations After Lechmere, Inc. V. Nlrb, Susan K. Goplen
Judicial Deference To Administrative Agencies' Legal Interpretations After Lechmere, Inc. V. Nlrb, Susan K. Goplen
Washington Law Review
In Lechmere, Inc. v. NLRB, the Supreme Court held that when interpreting administrative statutes, the Court will defer to its own previous interpretations rather than defer to administrative agencies' interpretations of statutes. Thus, the Court determined that stare decisis is dominant over judicial deference to administrative agencies. The Court decided Lechmere, Inc. v. NLRB wrongly. The rationales for deference to agencies exist whether or not the courts have addressed the statute in question. Therefore, courts should apply the doctrine of judicial deference even when courts have previously interpreted a statute.