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Articles 1 - 20 of 20
Full-Text Articles in Law
Unequal Rights: The Fourteenth Amendment And De Facto Parentage, Adam K. Ake
Unequal Rights: The Fourteenth Amendment And De Facto Parentage, Adam K. Ake
Washington Law Review
Faced with an unprecedented number of children born into non-traditional family arrangements, courts across the country are struggling to preserve relationships between same-sex partners and their partners' biological children after those non-marital relationships end. This Comment argues that the Fourteenth Amendment limits the extent to which courts can intrude on the parental rights of a natural or adoptive parent in an attempt to provide remedies for non-parent partners, who are usually legal strangers to the children under applicable statutory schemes. U.S. Supreme Court jurisprudence implicitly recognizes hierarchical tiers of parental rights. Under this framework natural and adoptive parents have superior …
Enjoys Long Walks On The Beach: Washington's Public Trust Doctrine And The Right Of Pedestrian Passage Over Private Tidelands, Ewa M. Davison
Enjoys Long Walks On The Beach: Washington's Public Trust Doctrine And The Right Of Pedestrian Passage Over Private Tidelands, Ewa M. Davison
Washington Law Review
Under Washington's public trust doctrine, the state retains a jus publicum interest in tidelands, regardless of ownership. This interest obligates the state to protect the public rights encompassed within the jus publicum: navigation, fishing, boating, swimming, water skiing, and corollary recreational activities. The state satisfies this duty so long as its actions do not circumscribe public access to those resources, including tidelands, traditionally protected by the public trust doctrine. The title to any tidelands property sold into private ownership is similarly burdened; a private tidelands owner may not utilize property in a way that would compromise the state's jus …
(Whatever Happended To) The Ada's "Record Of" Prong(?), Alex B. Long
(Whatever Happended To) The Ada's "Record Of" Prong(?), Alex B. Long
Washington Law Review
Of the three prongs in the Americans with Disabilities Act's (ADA) definition of disability, the "record of" prong is far less likely to be used by ADA plaintiffs in claiming protection under the Act than are the actual disability and "regarded as" prongs. Between the years 2000 and 2005, ADA and Rehabilitation Act plaintiffs who alleged employment discrimination in federal court relied upon the "record of" prong less than one-third as often as either the actual and "regarded as" prongs in claiming disability status. When they did rely on the "record of" prong, ADA plaintiffs did not enjoy any greater …
Appellate Review Of Discovery Orders In Federal Court: A Suggested Approach For Handling Privilege Claims, Cassandra Burke Robertson
Appellate Review Of Discovery Orders In Federal Court: A Suggested Approach For Handling Privilege Claims, Cassandra Burke Robertson
Washington Law Review
The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts …
Recordings, Transcripts, And Translations As Evidence, Clifford S. Fishman
Recordings, Transcripts, And Translations As Evidence, Clifford S. Fishman
Washington Law Review
Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said—even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid …
Congressional Power To Regulate Noncommercial Activity Overseas: Interstate Commerce Clause Precedent Indicates Constitutional Limitations On Foreign Commerce Clause Authority, Jeff Christensen
Washington Law Review
Although the U.S. Supreme Court has not yet ruled any statutes criminalizing the conduct of Americans overseas unconstitutional under the Foreign Commerce Clause, three U.S. Courts of Appeals decisions use the concept of enumerated powers—important in U.S. Supreme Court decisions that invalidate statutes grounded in the Interstate Commerce Clause—to suggest limitations on Congress's Foreign Commerce Clause power. In two decisions, the U.S. Courts of Appeals for the Fifth and Ninth Circuits employed the U.S. Supreme Court's Interstate Commerce Clause framework when analyzing statutes under the Foreign Commerce Clause. In so doing, these courts suggest that Foreign Commerce Clause power is …
Washington's Title Match: The Single-Subject And Subject-In-Title Rules Of Article Ii, Section 19 Of The Washington State Constitution, Dustin Buehler
Washington's Title Match: The Single-Subject And Subject-In-Title Rules Of Article Ii, Section 19 Of The Washington State Constitution, Dustin Buehler
Washington Law Review
Article II, section 19 of the Washington State Constitution provides that "[n]o bill shall embrace more than one subject, and that shall be expressed in the title." This provision contains two rules. First, an act violates the single-subject rule if it has a general title and its provisions lack rational unity, or if it has a restrictive title and contains provisions not fairly within the scope of that title. Second, an act violates the subject-in-title rule if the plain language of its title does not indicate the scope and purpose of the bill to an inquiring mind, or if it …
Strengthening Auditor Independence: Reestablishing Audits As Control And Premium Signaling Mechanisms, Sean M. O'Connor
Strengthening Auditor Independence: Reestablishing Audits As Control And Premium Signaling Mechanisms, Sean M. O'Connor
Washington Law Review
As recent scandals have demonstrated, ensuring the independence of auditors from the publicly traded clients whose books they inspect is one of the most vexing problems in the financial world today. Arguably, the imposition of a mandatory audit system through the 1930s federal securities laws created the modem problem of auditor independence. The core issue is that the statutory audit is simply a commodified cost of doing business for issuers that imposes an impossible obligation to serve an unspecified "investing public" on the auditors. Yet, this investing public neither hires, fires, nor controls the auditors. Instead, the audit relationship is …
A Failure Of Expression: How The Provisions Of The U.S. Bankruptcy Code Fail To Abrogate Tribal Sovereign Immunity, Greggory W. Dalton
A Failure Of Expression: How The Provisions Of The U.S. Bankruptcy Code Fail To Abrogate Tribal Sovereign Immunity, Greggory W. Dalton
Washington Law Review
Sections 106(a) and 101(27) of the U.S. Bankruptcy Code use the general phrase "other foreign or domestic government" to abrogate sovereign immunity without specifically referencing Indian tribes. The U.S. Supreme Court has not yet decided whether these sections of the Code abrogate tribal sovereign immunity, and lower court decisions have come to varying conclusions. As a general rule, Indian tribes are immune from suit due to their inherent sovereignty. Congress, however, may abrogate the sovereign immunity of tribes by unequivocally stating its intent to do so in a statute. When interpreting abrogation provisions in a statute, courts have only found …
The Power Of The Well-Known Trademark: Courts Should Consider Article 6bis Of The Paris Convention An Integrated Part Of Section 44 Of The Lanham Act, Brandon Barker
Washington Law Review
The Paris Convention for the Protection of Industrial Property outlines important international trademark principles for its signatory nations, including the United States. Specifically, article 6bis of the Paris Convention creates the well-known marks doctrine, a provision that allows foreign owners of well-known trademarks to bring infringement actions against citizens of other member nations using the same or similar trade names. Such foreign trademark holders can assert these rights regardless of whether their mark is directly used or registered in the native country of the alleged infringer. Although the Paris Convention provides a list of trademark rights within its articles, the …
Beyond Rational Relations: The Constitutional Infirmities Of Anti-Gay Partnership Laws Under The Equal Protection Clause, David W. Howenstine
Beyond Rational Relations: The Constitutional Infirmities Of Anti-Gay Partnership Laws Under The Equal Protection Clause, David W. Howenstine
Washington Law Review
Anti-gay partnership laws prevent state and local governments from granting rights, benefits, and obligations associated with marriage to same-sex couples. Fifteen states have anti-gay partnership laws that prohibit the creation of civil unions, domestic partnerships, or specific partnership rights for gay couples. Although enacted under legitimate state authority, these laws come into conflict with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they isolate gay citizens for special disadvantages and burdens within the traditional political processes. Under equal protection analysis, a law that neither burdens a fundamental fight nor targets a protected class will …
The Perils Of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study Of The Substantive Due Process State-Created Danger Doctrine In One Circuit, Sarah E. Ricks
Washington Law Review
About 80% of federal appellate decisions are non-precedential. This Article examines the practical consequences for district courts and litigants confronting inconsistent appellate opinions issued by the same federal circuit. Specifically, this is a case study comparing the divergent binding and non-precedential opinions applying one frequently invoked constitutional theory within the U.S. Court of Appeals for the Third Circuit, the "state-created danger" theory of substantive due process. The comparison demonstrates that the risks of non-precedential opinions are real. During the six-year interval between binding state-created danger decisions, the Third Circuit created inconsistent non-precedential opinions on the identical legal theory. Doctrinal divergence …
Sausage-Making, Pigs' Ears, And Congressional Expansion Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman
Sausage-Making, Pigs' Ears, And Congressional Expansion Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman
Washington Law Review
The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapantah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this …
Separating Dick And Jane: Single-Sex Public Education Under The Washington State Equal Rights Amendment, Inessa Baram-Blackwell
Separating Dick And Jane: Single-Sex Public Education Under The Washington State Equal Rights Amendment, Inessa Baram-Blackwell
Washington Law Review
Single-sex education in public school systems has become increasingly popular in recent years. The Equal Rights Amendment to the Washington State Constitution (ERA) requires that males and females be treated equally where state action, such as public education, is involved. As demonstrated by the ERA's legislative history and Washington case law, the ERA prohibits differentiation on the basis of sex alone, which occurs where an individual would be treated differently in a given situation if that person were of the opposite sex. Legislative history and case law recognize two narrow exceptions to the ERA. Under the first exception, classification based …
Zero Privacy: Schools Are Violating Students' Fourteenth Amendment Right Of Privacy Under The Guise Of Enforcing Zero Tolerance Policies, Elisabeth Frost
Zero Privacy: Schools Are Violating Students' Fourteenth Amendment Right Of Privacy Under The Guise Of Enforcing Zero Tolerance Policies, Elisabeth Frost
Washington Law Review
The Fourteenth Amendment to the United States Constitution provides a right of privacy that protects against unwarranted governmental interference with an individual's contraceptive choices. This privacy right protects minors as well as adults. School officials serve as government actors for the purpose of Fourteenth Amendment analysis. Zero tolerance drug policies are school disciplinary policies that mandate predetermined and frequently severe consequences for specific offenses, often including the possession of legally prescribed or legally obtained over-the-counter medication. Zero tolerance drug policies have resulted in the often very public discipline of students for possessing a wide array of otherwise legal medication, including …
The Exercise Of Personal Jurisdiction Over Some Foreign State Instrumentalities Must Be Consistent With Due Process, Gosia Spangenberg
The Exercise Of Personal Jurisdiction Over Some Foreign State Instrumentalities Must Be Consistent With Due Process, Gosia Spangenberg
Washington Law Review
The Fifth Amendment's Due Process Clause places limitations on courts' judicial power. Due process concerns arise when a forum exercises personal jurisdiction over a nonresident defendant for actions carried on outside the forum's territory. Those concerns are alleviated when the defendant has adequate "minimum contacts" with the forum. Although foreign states are presumed to be immune from the jurisdiction of U.S. courts, the Foreign Sovereign Immunities Act (FSIA) grants U.S. courts jurisdiction over foreign states under certain circumstances. Several FSIA exceptions to foreign state immunity extend to conduct that occurs outside of the U.S. Moreover, the jurisdictional nexus requirements associated …
The Myth Of The Student-Athlete: The College Athlete As Employee, Robert A. Mccormick, Amy Christian Mccormick
The Myth Of The Student-Athlete: The College Athlete As Employee, Robert A. Mccormick, Amy Christian Mccormick
Washington Law Review
Grant-in-aid athletes in revenue-generating sports at Division I National Collegiate Athletic Association (NCAA) institutions are not "student-athletes" as the NCAA asserts, but are, instead, "employees" under the National Labor Relations Act (NLRA). To be an employee under that Act, these athletes must meet both the common law test and a statutory test applicable to university students. In applying the common law test to athletes, we describe their daily lives through interviews with current and former Division I grant-in-aid athletes. These interviews demonstrate that their daily burdens and obligations not only meet the legal standard of employee, but far exceed the …
Stealing The Public Purse: Why Washington's Collective Bargaining Law For State Employees Violates The State Constitution, Christopher D. Abbott
Stealing The Public Purse: Why Washington's Collective Bargaining Law For State Employees Violates The State Constitution, Christopher D. Abbott
Washington Law Review
In 2002, the Washington legislature passed the Personnel System Reform Act (PSRA), which gives state employees the right to collectively bargain over wages and other economic terms of their employment. Section 302(3) of the PSRA further provides that once the Governor and collective bargaining units reach a proposed collective bargaining agreement, the legislature may not amend the agreement. Instead, the legislature may only express disapproval with any portion of the agreement by rejecting funding of the agreement as a whole. This Comment argues that section 302(3) of the PSRA, now codified at RCW 41.80.010(3), violates the separation of powers doctrine …
International Delegations And The New World Court Order, Julian G. Ku
International Delegations And The New World Court Order, Julian G. Ku
Washington Law Review
In Medellin v. Dretke, the U.S. Supreme Court squarely considered the domestic judicial enforceability of a judgment by the International Court of Justice for the first time. Although the Court ultimately dismissed the case due to President George W. Bush's intervention, the issue that won the Court's attention—the domestic legal status of international tribunal judgments—will almost certainly return to the Court in the near future. When it does, the Court will be faced with calls from leading scholars to enforce the judgments of international courts and tribunals as part of a "new world court order," characterized by cooperation between …
Zoned Secular: Seattle's Prohibition Of New Religious Facilities In Industrial Zones Violates The Religious Land Use And Institutionalized Persons Act's "Equal Terms" Rule, Daniel Kirkpatrick
Zoned Secular: Seattle's Prohibition Of New Religious Facilities In Industrial Zones Violates The Religious Land Use And Institutionalized Persons Act's "Equal Terms" Rule, Daniel Kirkpatrick
Washington Law Review
The "equal terms" rule of the Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits federal, state, and local governments from enacting land use regulations that place religious assemblies or institutions on less than equal terms with nonreligious assemblies or institutions. The plain language of RLUIPA makes it clear that the equal terms rule prohibits unequal treatment of religious assemblies and institutions as compared to non-religious assemblies and institutions. RLUIPA's legislative history further reveals that Congress enacted the equal terms rule to counter zoning laws that favor secular assemblies and institutions over religious assemblies and institutions. Accordingly, federal courts have …