Law Commons^™

The Administrative State's Jury Problem, Richard Lorren Jolly

Washington Law Review

This Article argues that the administrative state’s most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to “Suits at common law” refers to all federal legal rights regardless of forum. Agencies’ use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural …

Fugitive Pull: Applying The Fugitive Disentitlement Doctrine To Foreign Defendants, Zachary Z. Schroeder

Washington Law Review

Defendants force courts to decide whether to use judicial time and resources to hear a case when they either flee or refuse to submit to jurisdiction. Judges in the United States possess an exceptional discretionary power to deny access to the courts in these circumstances through the fugitive disentitlement doctrine. The fugitive disentitlement doctrine developed as federal common law and permits courts to exercise discretion in declining to hear appeals or motions from defendants classified as fugitives from justice.

Historically, the fugitive disentitlement doctrine was intended to prevent courts from wasting resources adjudicating cases when a defendant has fled and …

Obstacles To Proving 24-Hour Lighting Is Cruel And Unusual Under Eighth Amendment Jurisprudence, Lauren Jaech

Washington Law Review

Twenty-four-hour lighting causes sleep deprivation, depression, and other serious disorders for incarcerated individuals, yet courts often do not consider it to be cruel and unusual. To decide if prison conditions violate the Eighth Amendment’s prohibition against cruel and unusual punishment, courts follow a two-part inquiry that requires examining the intent of prison officials (known as the subjective prong) as well as the degree of seriousness of the alleged cruel or unusual condition (the objective prong). Incarcerated individuals often file complaints challenging 24-hour lighting conditions. Whether they succeed on these claims may depend on the circuit in which they reside. Judges …

Why Our Stories Matter: A Perspective On The Restatement From The State Bench, Raquel Montoya-Lewis

Washington Law Review

No abstract provided.

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan

Washington Law Review

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted …

Talking Back In Court, M. Eve Hanan

Washington Law Review

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important …

Judicial Lobbying, J. Jonas Anderson

Washington Law Review

Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done—not to mention little that could be done—to restrict judges from lobbying. Judicial lobbying occurs, in large part, when Congress …

Judicial Lobbying, J. Jonas Anderson

Washington Law Review

Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done—not to mention little that could be done—to restrict judges from lobbying. Judicial lobbying occurs, in large part, when Congress …

Forceful Minimization, Hein V. Freedom From Religion Foundation, Inc., And The Prudence Of "Not Doing", Brendan R. Mcnamara

Washington Law Review

Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds …

Advocacy And Contempt: Constitutional Limitations On The Judicial Contempt Power. Part One: The Conflict Between Advocacy And Contempt, Louis S. Raveson

Washington Law Review

The courts' inherent power to punish misconduct that interferes with the judicial process as criminal contempt often conflicts with attorneys' first amendment and due process rights, and their clients' sixth amendment rights to vigorous legal representation. In balancing these competing interests, the Supreme Court has employed seemingly diverse standards to demarcate the constitutional limitations on the substantive scope of the contempt power. Professor Raveson argues that the Constitution should limit the contempt power so that it may only be used to punish actual obstructions of the administration of justice. He maintains that because the goals of our system of justice …

Remarks On Writing Separately, Ruth Bader Ginsburg

Washington Law Review

Judge Ginsburg compares the styles of appellate opinion writing in United States courts and in those of Great Britain and the civil law countries. She describes as a "middle way" the United States practice of opinions for the court, sometimes accompanied by separate concurrences and dissents. This practice, she observes, contrasts with the British tradition of seriatim opinions by each member of the bench, and with the single, anonymous judgment characteristic of civil law systems. While noting that the Anglo-United States practice of writing separately has gained adherents in the civil law world, she concludes that judges in the United …

Towards Greater Openness In Judicial Conduct Commission Proceedings: Temporary Confidentiality As An Alternative To Inviolate Confidentiality—Garner V. Cherberg, 111 Wash. 2d 811, 765 P.2d 1284 (1988), Tom Montgomery

Washington Law Review

In Garner v. Cherberg, the Washington Supreme Court upheld certain rules of inviolate confidentiality adopted by the Washington Commission on Judicial Conduct. This Note examines the justifications for such confidentiality rules, and proposes temporary, rather than inviolate, confidentiality to better balance interests of fairness and the public's right to know.

Judicial Ethics: The Less-Often Asked Questions, Andrew L. Kaufman

Washington Law Review

Judicial ethics is a topic of increasing interest to the public, the bar, and the judiciary; only recently has the body of substantive law regarding judicial behavior begun to take shape. This essay explores the less developed issues of ex parte communication by judges, activities of judges' spouses, the obligation of judges to report attorney disciplinary violations, and extrajudicial comments by judges about legal matters. The Author analyzes the positions on these issues of the ABA Code of Judicial Conduct, the Judicial Conference of the United States' Code of Conduct for United States Judges, and the Discussion Draft of Draft …

Judicial Discipline And Due Process In Washington State—In Re Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), Stephen Hobbs

Washington Law Review

This Note evaluates recent developments in Washington State concerning due process rights in judicial disciplinary proceedings. The focus is on In re Deming, a recent disciplinary case decided by the Washington Supreme Court. The analysis by the court in Deming highlights the conflict between the desire to discipline wayward judges and the need to protect the autonomy of the judiciary. The historical and procedural background of the Deming case is discussed first, and then three important procedural issues raised in the opinion are analyzed. The Note concludes that, although the court's broad due process holdings lack foundation, its specific …

Judicial Discipline And Due Process In Washington State—In Re Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), Stephen Hobbs

Washington Law Review

This Note evaluates recent developments in Washington State concerning due process rights in judicial disciplinary proceedings. The focus is on In re Deming, a recent disciplinary case decided by the Washington Supreme Court. The analysis by the court in Deming highlights the conflict between the desire to discipline wayward judges and the need to protect the autonomy of the judiciary. The historical and procedural background of the Deming case is discussed first, and then three important procedural issues raised in the opinion are analyzed. The Note concludes that, although the court's broad due process holdings lack foundation, its specific procedural …

Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney

Washington Law Review

By 1880 Congress had passed nearly 3000 statutes granting or regulating parts of the public domain. Administrative and judicial case loads increased correspondingly, as many thousands of claims had to be verified and recorded and growing numbers of disputes adjudicated. This article recalls an early far-west chapter of the story, a remarkable series of decisions by Oregon federal district Judge Matthew P. Deady interpreting the cornerstone of Pacific Northwest public land law, the 1850 Oregon Donation Act. Although Deady decided other public land law questions as well, it is his Donation Act decisions helping to determine ownership of the Portland …

Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney

Washington Law Review

By 1880 Congress had passed nearly 3000 statutes granting or regulating parts of the public domain. Administrative and judicial case loads increased correspondingly, as many thousands of claims had to be verified and recorded and growing numbers of disputes adjudicated. This article recalls an early far-west chapter of the story, a remarkable series of decisions by Oregon federal district Judge Matthew P. Deady interpreting the cornerstone of Pacific Northwest public land law, the 1850 Oregon Donation Act. Although Deady decided other public land law questions as well, it is his Donation Act decisions helping to determine ownership of the Portland …

Protecting The Appearance Of Judicial Impartiality In The Face Of Law Clerk Employment Negotiations, Kevin D. Swan

Washington Law Review

This Comment examines the relationship among judges, law clerks, and the requirements placed on both to maintain the appearance of impartiality. It also addresses current standards applied to this problem and evaluates those standards based on the policies behind the cases and rules governing conflicts of interest. It analyzes what circumstances mandate removal of clerks from cases, as well as what circumstances mandate the removal of the clerks' respective judges. Finally, this Comment proposes a rule of professional responsibility for judges and clerks to follow when the clerks are involved in employment negotiations, and suggests the implementation of training and …

The Appearance Of Fairness Doctrine: A Conflict In Values, Carolyn M. Van Noy

Washington Law Review

This Comment compares the appearance of fairness doctrine with the Washington State Code of Judicial Conduct and shows that abandoning the doctrine and substituting the Code and due process would not resolve the conflict between independence and accountability, but would further exacerbate it. Rather, the appearance of fairness doctrine, modified by the 1982 appearance of fairness statute, is a standard that accommodates the conflict inherent in any bias standard applied to elected and appointed officials. The legislative modifications, however, fall short of the need for a clearly defined doctrine that provides guidance and certainty for the decisionmakers and the courts. …

The Jury's Historic Domain In Complex Cases, Roger W. Kirst

Washington Law Review

Part I of this article will review the major developments in the complexity debate. Part II will discuss the development and modem employment of the judge-jury historical test. Part III will examine how the judge-jury historical test accommodates both judicial control of the jury and a political role for the jury. Part IV will discuss how application of the judge-jury historical test will permit judges to use new or expanded powers, such as direct judicial factfinding on some issues in complex cases. Part V will compare the judge-jury historical test with other approaches to the complexity problem.

Ethical Conduct In A Judicial Campaign: Is Campaigning An Ethical Activity?, J. Scott Gary

Washington Law Review

The purpose of this comment is twofold. First, through a comprehensive survey of the codes that comprise the sources of legal ethics, the comment elucidates a body of ethical law governing the conduct of candidates in a judicial campaign. Second, after identifying the basic principle found to underlie these ethical codes, this comment argues that the scope of permissible judicial campaigning should be strictly confined.

The Court Years 1939-1975: The Autobiography Of William O. Douglas (1980), Ralph S. Tyler

Washington Law Review

Few Americans would claim objectivity on the subject of William O. Douglas. He inspired powerful reactions. I start by stating my deeply held admiration for Justice Douglas, a respect nurtured at a distance and from his writings. His writings brought Douglas the man and Douglas the Justice close to many who never met him. His words show him to be a man who cared profoundly about the world, its people, his country, and the law. Decades of American law students, particularly those like me who studied law in the 1960's and 1970's, listened to Justice Douglas, whether he was in …

The Ways Of A Judge: Reflections From The Federal Appellate Bench, By Frank M. Coffin (1980), Eugene A. Wright

Washington Law Review

Here is a book for which we judges have been waiting, but it is one that should be required reading for others, both within and without the profession. It comes at a time when much public attention and criticism have been directed toward the courts, the news media have given wide coverage to pending and decided cases, and an extraordinary number of federal judges have resigned their offices for more lucrative endeavors.

The Ways Of A Judge: Reflections From The Federal Appellate Bench, By Frank M. Coffin (1980), Eugene A. Wright

Washington Law Review

Here is a book for which we judges have been waiting, but it is one that should be required reading for others, both within and without the profession. It comes at a time when much public attention and criticism have been directed toward the courts, the news media have given wide coverage to pending and decided cases, and an extraordinary number of federal judges have resigned their offices for more lucrative endeavors.

Dedication To William O. Douglas, William J. Brennan, Jr.

Washington Law Review

Short remarks on the passing of Justice William O. Douglas.

Mr. Justice Douglas, L. A. Powe, Jr.

Washington Law Review

"The average American," according to William O. Douglas, "is an independent, rough and ready kind of fellow who wants to take a swing on his own." That statement goes a long way toward describing Douglas himself. Given his drive and intelligence, however, it would be inappropriate to equate Douglas with the "average American." He was, as his more than forty years of public service demonstrated, one of the extraordinary Americans in our history.

Toward A Judicial Role For The Twenty-First Century, Charles L. Black, Jr.

Washington Law Review

Tonight, I am shifting to a new perspective in time. I would ask you to think of us as standing at a midpoint, just about equally distant from the decision in Brown v. Board of Education and the beginning of a new century, some twenty-three years back and forward. I remember the day the Brown case was decided; I learned of it, on a May afternoon still fragrant, from a group of Columbia law students in the drugstore-luncheonette on the corner of 116th Street and Broadway in New York. If you remember that day, or some other day in that …