Digital Commons Network^™

Full Issue, Socio-Legal Review

Socio-Legal Review

No abstract provided.

Reviews In Medical Ethics: Stumbling On Options: A Review Of Readings In Comparative Health Law & Ethics, Frances H. Miller

Faculty Scholarship

Thanks to a series of storms sweeping up the eastern seaboard for three days, I found myself with four fivehour flight delays and two completely unrelated books in my briefcase. One of the books was the second edition of Professor Tim Jost's Readings in Comparative Health Law & Ethics,' which I was reviewing for this publication. The second was Daniel Gilbert's Stumbling on Happiness,² which someone - no doubt thinking I could use a little wisdom on the subject - had given me for my birthday. I did not mind the delays, for they gave me time …

Bulletin 2008-2009, Seattle University School Of Law

Viewbooks

No abstract provided.

Washington's Way Ii: The Burden Of Enforcing Growth Management In The Crucible Of The Courts And Hearings Boards, Henry W. Mcgee, Jr., Brock Howell

Seattle University Law Review

This Article continues the analysis and discussion of the conflicts and problems that beset a dispersed and decentralized growth management control system, as discussed in Washington's Way: Dispersed Enforcement of Growth Management Controls and the Crucial Role of NGOs. That article explained how Washington politicians, in an effort to combat urban sprawl, created a dispersed, "bottom-up" approach to growth management by enacting the Washington Growth Management Act (GMA). The enforcement mechanism provided under the GMA, however, was not mandated to a single government entity; rather, it was left to citizens and non-governmental organizations (NGOs) acting at the local level. …

Beyond Unconscionability: The Case For Using "Knowing Assent" As The Basis For Analyzing Unbargained-For Terms In Standard Form Contracts, Edith R. Warkentine

Seattle University Law Review

Much scholarship questioning the enforcement of standard form contract terms offers interesting insights into possible approaches a court can take in analyzing the issue, but the literature largely fails to examine what courts actually do in these cases. This Article identifies the gap between what scholars are saying about standard form contracts and what courts are doing about them. It notes that courts have not accepted the scholarship that urges a nontraditional approach to analyzing assent. Rather-with but a few exceptions—what has emerged is a case-by-case unconscionability analysis in which courts focus narrowly on particular terms and conditions in standard …

Constitutional Limitations On The Ability Of States To Rehabilitate Their Failed Electric Utility Restructuring Plans, James M. Van Nostrand

Seattle University Law Review

This Article will review the constitutional limitations that come into play when a state seeks to rehabilitate its failed electric utility restructuring plan. Under the Constitution, utilities are entitled to earn a reasonable return on the assets devoted to public service. A situation in which retail rates are frozen may result in denial of a compensatory return if the electric utility is incurring higher costs to generate or procure its power supply. This is the traditional "takings" argument based on the Fifth Amendment to the Constitution, as applied to the states under the Fourteenth Amendment. Apart from this commonly asserted …

Oh, What A Tangled World Wide Web We Weave: An Analysis Of Washington's Computer Spyware Act In A National Context, Laura L. Edwards

Seattle University Law Review

Spyware affects businesses as well as individuals. Spyware can expose a company's confidential information, slow down computers and networks, and destroy data. Employees lose efficiency while waiting for IT staff to fix the various problems caused by spyware, which increases costs. Accordingly, spyware is not just a minor annoyance suffered by individual Internet users; rather, it harms American businesses and the economy as well.

An Unaccountable Familiarity: A Dual Solution To The Problem Of Theft In Theatrical Productions, Jeannette Gunderson

Seattle University Law Review

The production of a play as a whole is a derivative work of joint authorship; thus, copyright law should protect it. As a work of authorship, the sum of the design elements that form a production are protectable by copyright because the production is an original creation; while based on the text of the play, any given production is developed separately from the underlying work and merits its own protection.8 Because of the collaborative and interdependent nature of a production of a play, musical, or opera, the resulting combination of all aspects of design and direction should be protected as …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Recruiting Sexual Minorities And People With Disabilities To Be Dean, Joan W. Howarth

Seattle University Law Review

This Essay discusses diversity in deaning as it pertains to two identity categories: members of the lesbian, gay, bisexual, and transgender (LGBT) communities, and people with disabilities. Each identity is itself fluid and contested, containing such enormous variations as to render the category illusive and often obfuscating. People with visible disabilities face fundamentally different issues than people with hidden disabilities, for example. Pairing sexual orientation and disability risks false analogies, and worse.

Succeeding In The Candidate Pool: Resources Available For Persons Interested In Becoming A Law School Dean, David A. Brennan

Seattle University Law Review

This presentation covers three areas that fall under my supervision as Deputy Director of the Association of American Law Schools (AALS). First, I will discuss the two Deans Databanks that I administer, which relate directly to increasing diversity among the ranks of law school deans in America: the Women Deans Databank and the Minority Deans Databank. In particular, I will address how these two databanks reflect the core values of the AALS and how the databanks function in the deanship process. Second, I will discuss the Law Deanship Manual, an AALS publication that addresses nearly every aspect of what it …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Seattle University Law Review

The full extent of what the Court decided in Grutter and Parents Involved remains in some dispute. What is far more certain is that both cases continue to stir deeply held passions that help frame public and legal debates about the Court and its role in affirmative action and school desegregation disputes. Amid these increasingly raucous debates, this Article expressly side steps the many questions (and controversies) about what the Court decided in those cases and seeks to escape from the frequently politically charged and volatile context of governmental uses of race. This Article instead focuses on how the Court …

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathon L. Entin

Seattle University Law Review

This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan's celebrated dissenting opinion in Plessy v. Ferguson. The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various …

The Golden Cage: How Immigration Law Turns Foreign Women Into Involuntary Housewives, Magdalena Bragun

Seattle University Law Review

This Comment begins with a presentation of the general principles of immigration law, introducing the reader to concepts such as immigrant and nonimmigrant status, derivative status, and adjustment of status. Part III offers a more detailed presentation of the H status, emphasizing H-1B classification and describing specific regulations that are pertinent to the subsequent discussion of the spousal employment authorization problem. Part IV presents five arguments why spouses of foreign professionals should be allowed to work, considering issues such as spousal dependency, equal treatment, the competitiveness of the United States in the global search for talent, and tax benefits.

A Good Idea Stretched Too Far: Amending The General Aviation Revitalization Act To Mitigate Unintended Inequities, Kerry V. Kovarik

Seattle University Law Review

This Comment will examine the congressional intent that shaped GARA, evaluate the equitable implications of the statute's drafting language, discuss its significant judicial interpretations, and explore the author's recommendations aimed at minimizing GARA's inequities without negating its positive aspects. Part II begins with an analysis of GARA's legislative history, identifies stakeholders and their arguments, and examines issues given insufficient consideration by Congress. Part III assesses how GARA actually affected the aviation market when compared to the stakeholders' predictions. Part IV will survey a selection of important judicial decisions interpreting GARA. Finally, Part V evaluates the inequities created by the statute …

Deception In Undercover Investigations: Conduct-Based Vs. Status-Based Ethical Analysis, Barry R. Temkin

Seattle University Law Review

As part of the public school system, online schools “have a responsibility to provide equal access to [their] educational opportunities[,] and restricting access to these opportunities can be problematic, if not illegal.” Given the rapid growth of online education in Washington, legislators must examine whether online schools that receive public education funding are benefiting the entire public or are benefiting merely a select group of students. Part II of this Comment briefly discusses the history of online schools in Washington, including how they receive funding within Washington's unique statutory and regulatory framework. Part III then examines how online schools discriminate …

Misuse And Abuse Of Morse V. Frederick By Lower Courts: Sretching The High Court's Ruling Too Far To Censor Student Expression, Clay Calvert

Seattle University Law Review

This Article argues that the Fourth Amendment protects confidential attorney-client communications from unreasonable government intrusion, including unreasonable court orders compelling production of attorney-client communications. The Article begins by focusing on the elements of a claim under the Fourth Amendment. Part II identifies the elements and subsequent sections address each element in the context of attorney-client communications. Part III considers the legitimate expectation of privacy in confidential attorney-client communications. Part IV addresses the search and seizure requirement, explores authority distinguishing between "actual" and "constructive" searches, and concludes that, in addition to searches, court-ordered production of attorney-client communications (a "constructive" search and …

Empirical Health Law Scholarship: The State Of The Field, Michelle M. Mello, Kathryn Zeiler

Faculty Scholarship

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection - empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges: practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, …

Malpractice Payouts And Malpractice Insurance: Evidence From Texas Closed Claims, 1990-2003, Charles Silver, Kathryn Zeiler, Bernard Black, David Hyman, William Sage

Faculty Scholarship

Background. This study is the first to quantify physicians' malpractice insurance limits. It also examines the connection between policy size and payments on claims, including the frequency of settlement at the policy limits and the frequency of out-of-pocket payments.

Methods. Statistical analyses using data collected by the Texas Department of Insurance (TDI) covering all insured medical malpractice claims against physicians closed between 1990 and 2003 with payment of $25,000 or more (measured in 1988 dollars).

Results. Contrary to conventional wisdom, per-occurrence limits of $500,000 or less were as common as $1 million limits. Nominal policy size was stable over time, …

Unleashing Or Harnessing "Armies Of Compassion"?: Reflections On The Faith-Based Initiative, Linda C. Mcclain

Faculty Scholarship

A central tenet of President George W. Bush's faith-based initiative, launched in 2001, is that the federal government, by entering into more partnerships with religious and community organizations, should put the power of faith to work to solve pressing social problems. Proponents of the initiative have invoked the eighteenth-century French writer Alexis de Tocqueville's famous observations about the American propensity to join various voluntary associations as well as the Catholic principle of subsidiarity. Seven years into the faith-based initiative, challenging questions remain about what, exactly, it means to put faith to work. Such questions deserve attention, given the institutionalization of …

Red Versus Blue (And Purple) States In The Same-Sex Marriage Debate: From Values Polarization To Common Ground?, Linda C. Mcclain

Faculty Scholarship

What is the role of courts in circumstances of "values polarization"? The framing of this question brings to mind, but differs from, some familiar inquiries about the judicial role in circumstances of conscientious moral disagreement or value pluralism and debates about liberty, morality, and community. Using the conflict over whether civil marriage should extend to same-sex couples as an example, I contrast two recent analyses of values polarization and its implications for finding agreement, Ronald Dworkin’s book, Is Democracy Possible Here?, and June Carbone and Naomi Cahn's project, Red Families v. Blue Families. Dworkin's strategy is to identify shared principles …

Family Life, The Politics Of The Family, And Social Transformation, Linda C. Mcclain

Faculty Scholarship

Why do families matter? Is it simply because of their role in social reproduction, or does this ignore the personal goods, the benefits and burdens, of intimate life? Does an emphasis on the formative role of families risk treating them merely as serving the state and divert attention from the rights of persons to form families and the rights - and needs - of children to nurturing relationships? What kind of social and economic transformation would be necessary to implement a normative vision of family that supports families, is egalitarian, and respects diversity? What is the best way to rectify …

Open Code Governance, Danielle K. Citron

Faculty Scholarship

Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person's eligibility for public benefits. Computer systems store sensitive personal information. These systems' closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program's source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, …

Preemption And Products Liability: A Positive Theory, Keith N. Hylton

Faculty Scholarship

In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or preempts state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and …

Reincarnating The "Major Questions" Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail Moncrieff

Faculty Scholarship

In a pair of cases declaring a major questions exception to Chevron deference, the Supreme Court held that executive agencies may not implement major policy changes without explicit authorization from Congress. But in Massachusetts v. EPA, the Court unceremoniously killed its major questions rule, requiring the EPA to implement one such major policy change. Because the scholarly literature to date has failed to discern a worthy justification for the major questions rule, the academy might be tempted to celebrate the rule's death. This Article, how-ever, argues that the rule ought to be mourned and, indeed, reincarnated. It offers a non-interference …

Tracer Tests In Karst Hydrogeology And Speleology, Nico Goldscheider, Joe Meiman, Michiel Pronk, Christopher Smart

International Journal of Speleology

This article presents an introduction to the fundamentals of tracing techniques and their application in cave and karst environments, illustrated by case studies from the Mammoth Cave, USA, and a small experimental site in Switzerland. The properties and limitations of the most important artificial tracers are discussed, and the available methods of tracer injection, sampling, online monitoring and laboratory analysis are presented. Fully quantitative tracer experiments result in continuous or discrete concentration-time data series, i.e. breakthrough curves, and concomitant discharge data, which make it possible to obtain detailed information about groundwater flow and contaminant transport. Within the frame of speleological …

Carbon Dioxide Concentration In Air Within The Nerja Cave (Malaga, Andalusia, Spain), Cristina Liñán, Iñaki Vadillo, Francisco Carrasco

International Journal of Speleology

From 2001 to 2005 the CO₂ concentration of the air in the interior and exterior of the Nerja Cave was studied and its relation with the air temperature and visitor number. The average annual CO₂ concentration outside of the cave is 320 ppmv, whilst inside, the mean concentration increases to 525 ppmv during autumn and winter, and in the order of 750 ppmv during spring and summer. The temporal variation of CO₂ content in the air of the cave is strongly influenced by its degree of natural ventilation which is, in turn, determined by the difference between …

Late Pleistocene Cryogenic Calcite Spherolites From The Malachitdom Cave (Ne Rhenish Slate Mountains, Germany): Origin, Unusual Internal Structure And Stable C-O Isotope Composition, Detlev Konrad Richter, Dana Felicitas Christine Riechelmann

International Journal of Speleology

Cryogenic calcites yielded U-series ages in the range from 15.61±0.20 ka to 14.48±0.12 ka, which is the youngest age obtained so far for this type of cryogenic cave carbonates in Europe. Most of these particles of the Malachitdom Cave (NE Brilon, Sauerland, North Rhine-Westphalia) are complex spherolites usually smaller than 1 cm. They show δ¹³C-values between –1 and –5 ‰ VPDB and δ¹⁸O-values ranging from –7 to –16 ‰ VPDB, the δ¹³C-values increase and the δ¹⁸O-values decrease from centre to border. The complex spherolites are interpreted to be formed in slowly freezing …

Antitrust Law And Regulatory Gaming, Stacey Dogan

Faculty Scholarship

Antitrust law promotes competition in the service of economic efficiency. Government regulation may or may not promote either competition or efficiency, depending on both the goals of the agency and the effects of industry "capture." Antitrust courts have long included regulated industries within their purview, working to ensure that regulated industries could not use the limits that regulation imposes on the normal competitive process to achieve anticompetitive ends. Doing so makes sense; an antitrust law that ignored anticompetitive behavior in any regulated industry would be a law full of holes.

The role of antitrust in policing regulated industries appears to …

Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Faculty Scholarship

The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, the Roberts Court granted a petition for certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the …