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Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss

Seattle University Law Review

Whatever the merits of minimalism in constitutional adjudication, this Essay argues that in another aspect of federal adjudication--what this Essay terms “reluctant judicial factfinding”--we already have too much minimalism. In certain areas of law, courts are quite reluctant to engage in close scrutiny of critically important facts, instead falling back on policies that avoid such factfinding. Parts II, III, and IV discuss each of these three areas of reluctant judicial factfinding. Then, Part V offers some thoughts as to possible causes of this reluctance to undertake factual inquiries that statutes, rules, and Supreme Court precedent instruct district and appellate courts …

Butchering Statutes: The Postville Raid And The Misinterpretation Of Federal Criminal Law, Peter R. Moyers

Seattle University Law Review

This article argues that a federal district court misinterpreted several statutes after an immigration raid in Postville, Iowa. In Part II, I begin with an account of Agriprocessors' prior legal troubles, which explains how it became such a politically attractive target. Next, I describe how the investigation of Agriprocessors led to a raid seeking to execute nearly 700 criminal arrest warrants. In Part III, I describe the causes of the accelerated criminal process that resulted in nearly 300 guilty pleas and sentencings in the span of twelve days. In Part IV, I argue that the accelerated process was premised upon …

Skirting The Line: Restricting Online Pedophilic Guides Within The Confines Of The First Amendment, Danielle M. Cross

Seattle University Law Review

This Comment argues that parents should not be left to self-help remedies to combat pedophiles in public locations. Part II of this Comment explores the psychological make-up of a pedophile by introducing the diagnostic criteria of pedophilia and by examining lengths to which pedophiles will go to find children. This Part also describes the danger created by websites with seemingly innocuous images and writings, explaining how these websites enable and validate pedophilia. Then, Parts III and IV tackle the issue on two fronts, through state action and federal congressional action, respectively. Part III describes and discusses the SSA, a recent …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

State Regulation Of Franchising: The Washington Experience Revisited, Douglas C. Berry, David M. Byers, Daniel J. Oates

Seattle University Law Review

Thirty-six years ago, and one year after Washington became the second state in the nation to enact a statute regulating franchise relationships, Professor Donald S. Chisum wrote the seminal article on franchising in Washington, State Regulation of Franchising: The Washington Experience. Professor Chisum's article has been one of the few reference sources for Washington franchise law, and it has been the primary source relied on by courts addressing claims under Washington's Franchise Investment Protection Act (FIPA). Since Professor Chisum originally published his article, the Federal Trade Commission (FTC) has promulgated and amended regulations governing the sale of franchises nationally, …

Remedies For Wrongfully-Issued Preliminary Injunctions: The Case For Disgorgement Of Profits, Ofer Grosskopf, Barak Medina

Seattle University Law Review

This Article demonstrates that the underlying aim of remedies for wrongfully issued preliminary injuntion leads to two central conclusions. First, it is desirable to award the remedy of restitution, which requires the moving party to disgorge all the benefits obtained at the expense of the defendant as a result of the wrongfully-issued preliminary injunction. Second, it may be unjustified to compel the plaintiff to compensate the defendant for all harms inflicted by the wrongfully-issued preliminary injunction. Part I of this Article summarizes the law of remedies for wrongfully-issued preliminary injunctions. Part I.A surveys the doctrinal reasons for imposing on the …

Volume Index, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Bank Bailout: A License For Sovereign Securities Fraud, Wendy Gerwick Couture

Seattle University Law Review

Unaddressed by Congress or the Treasury is the potential for the Treasury to rely on material, nonpublic information when disposing of securities purchased in the Bank Bailout of 2008. Insider trading by the Treasury should be constrained. Allowing the Treasury to trade on inside information would undercut the bailout’s goals of promoting overall faith in the markets and buttressing bank stock prices. The potential for increased profits for the taxpayers does not outweigh the cost of decreased public confidence in the markets.

Multiple potential solutions are available, including nationalizing the banks, prohibiting the Treasury from using inside information when making …

Reasonable Factors Other Than Age: The Emerging Specter Of Ageist Stereotypes, Judith J. Johnson

Seattle University Law Review

In spite of two recent Supreme Court cases that ostensibly rein- stated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. In Smith v. City of Jackson, the Supreme Court held that the ADEA was designed to attack practices that have a disparate impact on older employees, unless such practices are justified by a "reasonable factor other than age." This Article will examine the possible meanings of “reasonable factors other than age” and suggest a solution. Part …

Overruled By Implication, Bradley Scott Shannon

Seattle University Law Review

What if an apparently relevant precedent has been eroded by one or more later decisions? One might expect that, in the event of irreconcilable conflict, the more recent precedent would control. Yet, in Rodriguez de Quijas v. Shearson/American Express, Inc., the Court stated: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” This statement is troublesome in that it has caused …

King Makers?: Talk Radio, The Media Exemption, And Its Impact On The Washington Political Landscape, Joshua M. Duffy

Seattle University Law Review

Political talk radio is a lucrative and influential business. Rush Limbaugh, the most powerful voice in talk radio, signed an eight-year contract extension in 2008 for a total value of about $400 million. Limbaugh’s weekly listeners number somewhere between 14 and 20 million. Limbaugh was so influential in the Republican congressional elections of 1994, in which the Republicans took control of the House of Representatives for the first time in 54 years, that the congressional Republicans made him an honorary member of the freshman class.

Some have argued that because of its influence upon the electorate and upon particular campaigns, …

Electrified Law: A Brief Introduction To The Workshop On The Future Of The Legal Course Book, David M. Skover

Seattle University Law Review

This unique venture brought scholars at the forefront of pedagogical reform together with key representatives of the print and electronic law book industry and the National Conference of Bar Examiners to explore the options available for transforming the existing prototypes of legal education and course materials. The Workshop participants engaged deeply in thoughtful dialogues about promising and pragmatic paths for the future of electrified law. Over the course of four sessions, they discussed, at different levels of abstraction, the proposition that real reform in legal education is best served by the marriage of innovative ideas with innovative media.

When Counsel Screws Up: The Imposition And Calculation Of Attorney Fees As Sanctions, Philip Talmadge, Emmelyn Hart-Biberfeld, Peter Lohnes

Seattle University Law Review

While a body of law has emerged in Washington that permits the courts to impose fees against a party or the party’s counsel as a sanction, that body of law has not been coherently examined in the academic setting nor carefully and consistently analyzed in the case law. This Article explores and clarifies the principles underlying the imposition of attorney fees as a sanction, providing an overview of the various ways in which attorneys can be sanctioned when they screw up. The Article discusses Washington law as it applies to sanctions and briefly analyzes how Washington courts look to comparable …

Making Live And Letting Die: The Biopolitical Effect Of Navajo Nation V. U.S. Forest Service, Jessica M. Erickson

Seattle University Law Review

The philosophies of Michel Foucault have long been applied to various cultures and social movements in hopes of gaining insight into how power operates within a societal framework. One philosophy, Foucault’s conception of “biopolitics,” refers to the state’s regulatory control over the population as a whole, or its ability to control the life and death of the citizenry. Instead of exercising power at the level of each individual, “biopower” is exercised on the level of the population; it is the power to make live and let die.

Indian nations have been battling for sovereignty—freedom from external control in determining the …

New York’S Amazon Tax Not Out Of The Forest Yet: The Battle Over Affiliate Nexus, Sam Zaprzalka

Seattle University Law Review

In 2008, New York passed a state sales tax on out-of-state e-tailers by creating a rebuttable presumption that the vendor has a taxable physical presence in New York. Amazon.com and Overstock.com challenged the statute as unconstitutional. The New York Supreme Court disagreed and granted summary judgment to the State of New York. This Comment argues that the NY Court’s dismissal was only partially correct. The court was correct in noting that applying the Statute to the plaintiffs is consistent with the Due Process Clause under current U.S. Supreme Court precedent because the plaintiffs purposefully directed their activities toward New York. …

It Depends, Gary S. Lawson

Faculty Scholarship

Peter Strauss stated at the outset of this Symposium that the participants were chosen in part for the likelihood that they would generate “intelligent disagreement.” By that standard, I may have been a poor choice--and if that is the case, I will leave it to the reader to determine whether it is a function of the first or second term in the quoted phrase. At first glance, it looks as though I sharply disagree with Rick Pildes and Harold Bruff about whether the PCAOB's members are principal officers who must be appointed by the President with the advice and consent …

The Place Of History And Philosophy In The Moral Reading Of The American Constitution, James E. Fleming

Faculty Scholarship

Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin …

Internationalized Pro-Bono And A New Global Role For Lawyers In The 21st Century: Lessons From Nation-Building In Southern Sudan, Maya Steinitz

Faculty Scholarship

From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM”), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan and the Constitutions of two “transitional” states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal …

Investment Claims And Arbitrator Comportment, William W. Park

Faculty Scholarship

Thomas Wälde had such a curious mind that any speculation about his favorite object of inquiry might best be left to the other side of eternity. Without doubt, however, arbitration of investment claims held a special place among the subjects that engaged his intellect. Such arbitration supplied what he called ‘external adjudicatory discipline‘ to investor-state relations, enhancing the rule of law, human rights and cross-border economic cooperation. The proposition that arbitration disciplines investment begs an inquiry into the forces that discipline the arbitrators themselves. Quis custodiet ipsos custodies? What standards constrain the comportment and mindsets of those who make the …

Answering The Millennium Call For The Right To Maternal Health: The Need To Eliminate User Fees, Margaux J. Hall, Aziza Ahmed, Stephanie E. Swanson

Faculty Scholarship

Complications during childbirth and pregnancy are a main source of death and disability among women of reproductive age. Approximately 536,000 women die from pregnancy-related complications each year. Developing countries suffer most profoundly, accounting for 99% of deaths. The world's nations, by endorsing U.N. Millennium Development Goals, recognized that most deaths are preventable; they have pledged to reduce maternal mortality by 75% by 2015. This Article assesses the barriers presented by user fees - formal charges for health services still charged by many countries - to the attainment of MDGs. It shows that user fees hamper healthcare access, particularly in emergency …

Supporting The Virtual Community: Social Bookmarking As A User- Based Classification Scheme In A Knowledge Library, Nicole Lytle, Tony Coulsom

Journal of International Technology and Information Management

Knowledge libraries hold the promise of widespread access to information available anywhere, anytime, freeing patrons from the geographical and temporal boundaries that currently exist. The classification of materials and subsequent searching of knowledge library content is an overall problem with many complex parts. Relevant classification is important for optimal information retrieval. This is especially important for the virtual communities that exist with extended organizations. Rooted in the virtual community and digital library literature, this paper develops a theory for improving the information classification and retrieval process of knowledge libraries that support virtual communities by applying social bookmarking techniques.

Performance Impacts Of Extent Of Information Technology Usage, Adam S. Maiga, Fred A. Jacobs

Journal of International Technology and Information Management

The link between IT investment and firm performance is indirect due to the effect of moderating variables. Employing a sample of 589 manufacturing firms based in the U.S., building on resource- and knowledge-based theories and the marketing literature, we use structural equation modeling to investigate the relationship between firm extent of IT usage, knowledge acquisition from customers and suppliers, competitive advantage and firm financial performance. Our results indicate that firm extent of IT usage positively impacts both knowledge from both customers and suppliers, which positively affect firm competitive advantage that, in turn, positively impacts firm financial performance. Further, our results …

Strategies For Manufacturing In Southern China, Hilda M.S Lai, Domenic Sculli

Journal of International Technology and Information Management

This paper investigates the structure of industrial and business network strategies in the global manufacturing environment based on empirical data from 87 manufacturing firms in the Pearl River Delta of Southern China. Relevant data was collected using a questionnaire approach and analyzed using appropriate statistical techniques. Hierarchical cluster analysis was employed to devise taxonomy for industrial network strategies. Three distinct clusters were identified: Network Integrators, Network Learners and Network Conformists. Results indicate that the former two clusters, though differing in the extent of scale, adopt a holistic approach in developing both intra- and inter-firm strategies and that the third cluster …

Investigating The Factors Influencing Customers’ Adoption Of Online Banking In The United Arab Emirates, Samar Mouakket

Journal of International Technology and Information Management

The goal of this paper is to increase the awareness of the exogenous factors that influence customers’ attitude in the United Arab Emirates (UAE) towards online banking in the light of the Technology Acceptance Model (TAM). The study investigates the effect of three exogenous factors namely computer self-efficacy, security issues, and website features on the TAM. The proposed modified TAM model has been tested with a survey sample of 461 which has been distributed among different customers in the UAE. The data has been analyzed using Structural Equation Modeling (SEM) to evaluate the strength of the hypothesized relationships. The results …

Aicpa Professional Standards: Code Of Professional Conduct And Bylaws As Of June 1, 2009, American Institute Of Certified Public Accountants (Aicpa)

AICPA Professional Standards

No abstract provided.

White Paper: Navigating Through The Revised Aicpa Standards For Performing And Reporting On Peer Reviews And Related Interpretations, Effective For Peer Reivew Commencing On Or After January 1, 2009, June 16, 2008, American Institute Of Certified Public Accountants (Aicpa)

AICPA Professional Standards

No abstract provided.