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Articles 1 - 30 of 31
Full-Text Articles in Law
The Rise, Decline, And Fall (?) Of Miranda, Yale Kamisar
The Rise, Decline, And Fall (?) Of Miranda, Yale Kamisar
Washington Law Review
No abstract provided.
Monitored Disclosure: A Way To Avoid Legislative Supremacy In Redistricting Litigation, Mark Tyson
Monitored Disclosure: A Way To Avoid Legislative Supremacy In Redistricting Litigation, Mark Tyson
Washington Law Review
The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about “legislative acts” or having “legislative acts” used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a “legislative act” have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in …
Fleeing East From Indian Country: State V. Eriksen And Tribal Inherent Sovereign Authority To Continue Cross-Jurisdictional Fresh Pursuit, Kevin Naud Jr.
Fleeing East From Indian Country: State V. Eriksen And Tribal Inherent Sovereign Authority To Continue Cross-Jurisdictional Fresh Pursuit, Kevin Naud Jr.
Washington Law Review
In State v. Eriksen, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court’s reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute …
An Open Courts Checklist: Clarifying Washington's Public Trial And Public Access Jurisprudence, Jeanine Blackett Lutzenhiser
An Open Courts Checklist: Clarifying Washington's Public Trial And Public Access Jurisprudence, Jeanine Blackett Lutzenhiser
Washington Law Review
Fundamental to the American system of justice is the right to a public trial and a general presumption of openness in judicial proceedings. These values are reflected in the First and Sixth Amendments of the United States Constitution and in many state constitutions. Washington is one of a number of states whose constitution (unlike the U.S. Constitution) also explicitly guarantees the open administration of justice. Constitutional dilemmas arise when a party requests the closure of a courtroom or the sealing of documents. These requests force courts to harmonize values of open justice with other compelling interests. U.S. Supreme Court decisions …
Indigenous Peoples And Epistemic Injustice: Science, Ethics, And Human Rights, Rebecca Tsosie
Indigenous Peoples And Epistemic Injustice: Science, Ethics, And Human Rights, Rebecca Tsosie
Washington Law Review
This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly …
Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson
Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson
Washington Law Review
This Article canvasses the jurisdictional rules applicable in American Indian tribal territories—“Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal …
Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff
Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff
Washington Law Review
Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …
State Default And Synthetic Bankruptcy, Richard M. Hynes
State Default And Synthetic Bankruptcy, Richard M. Hynes
Washington Law Review
An insolvent state does not need bankruptcy if sovereign immunity would protect it from lawsuits and other collection efforts. To the extent that a state is not judgment-proof and needs bankruptcy, we may not need to modify the Federal Bankruptcy Code to allow it to file. First, a substantial share of state spending flows through their municipalities, and these municipalities have substantial obligations of their own. Unlike states, municipalities can file for bankruptcy under current law, and a state could substantially reduce the cost of accomplishing its own fiscal goals by forcing its municipalities to file. Second, states may be …
Selling Advice And Creating Expectations: Why Brokers Should Be Fiduciaries, Arthur B. Laby
Selling Advice And Creating Expectations: Why Brokers Should Be Fiduciaries, Arthur B. Laby
Washington Law Review
Investors face a dizzying array of choices regarding where to invest their funds and increasingly rely on experts for advice. Most advice about securities is provided by investment advisers or broker-dealers, legal categories with little meaning to most people but fraught with consequences. Although advisers and brokers often perform the same function, advisers are subject to a strict fiduciary standard to act in their clients’ best interest while brokers are subject to a less rigorous standard of suitability to ensure that their recommendations are suitable for customers. In 2010, the Dodd-Frank Act authorized the U.S. Securities and Exchange Commission (SEC) …
Executive Privilege Under Washington's Separation Of Powers Doctrine, Lee Marchisio
Executive Privilege Under Washington's Separation Of Powers Doctrine, Lee Marchisio
Washington Law Review
Since United States v. Nixon, the U.S. Supreme Court has recognized a qualified executive privilege grounded in federal separation of powers. The privilege allows the President to withhold executive branch communications when disclosure would undermine presidential decisionmaking while executing core constitutional duties. Several states have followed the Supreme Court’s lead and adopted an analogous gubernatorial privilege under state constitutional separation of powers. Focusing on Washington State’s well-developed separation of powers doctrine and strong populist history, this Comment argues that the Washington State Supreme Court should recognize a qualified gubernatorial privilege that also respects the state’s long history of citizen …
Pressing Washington's Wine Industry Into The Twenty-First Century: Rethinking What It Means To Be A Winery, Rebecca Thompson
Pressing Washington's Wine Industry Into The Twenty-First Century: Rethinking What It Means To Be A Winery, Rebecca Thompson
Washington Law Review
Washington’s wine industry is growing, and the ways in which Washington winemakers craft and sell their product are changing. Traditional “brick and mortar” wineries coexist with so-called “virtual wineries,” which typically purchase grapes from growers and contract with other wineries or custom crush facilities to access winemaking equipment. The virtual winery is an incubator model and contributes to the rich diversity of Washington’s wine industry. Washington’s current winery licensing statute, RCW 66.24.170, does not clearly apply to virtual wineries because it links the concept of a winery with a particular physical location and fails to delineate exactly what types of …
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Washington Law Review
Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that …
Protecting Child Victims' Rights As Vigorously As Criminal Defendants' When Prosecuting Possession Or Distribution Of Child Pornography, Kiel Willmore
Protecting Child Victims' Rights As Vigorously As Criminal Defendants' When Prosecuting Possession Or Distribution Of Child Pornography, Kiel Willmore
Washington Law Review
Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state’s evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims’ privacy and renewal of their abuse. The Washington State Legislature recently enacted Substitute House Bill 2177 (“H.B. 2177”), which amends the legislative findings …
The First Amendment's Epistemological Problem, Paul Horwitz
The First Amendment's Epistemological Problem, Paul Horwitz
Washington Law Review
In this Article, I treat the recent interest in these epistemological issues as an opportunity to explore an important aspect of Post’s project: the uneasy role of truth within First Amendment doctrine, and the relationship between courts and those institutions that we view generally as epistemically reliable sources of knowledge. My examination suggests that the First Amendment faces what I call an epistemological problem: specifically, the problem of figuring out just how knowledge fits within the First Amendment. The growing attention to the epistemology problem among leading First Amendment scholars is significant enough to warrant examination. Although I offer some …
A View From The First Amendment Trenches: Washington State's New Protections For Public Discourse And Democracy, Bruce E.H. Johnson, Sarah K. Duran
A View From The First Amendment Trenches: Washington State's New Protections For Public Discourse And Democracy, Bruce E.H. Johnson, Sarah K. Duran
Washington Law Review
In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Dean Robert Post promotes the concept of “democratic legitimation” as the cornerstone of democratic decision making. Dean Post defines “democratic legitimation” as “all efforts” to influence “public opinion.” As Post explains, “[d]emocracy requires that government action be tethered to public opinion” because “public opinion can direct government action in an endless variety of directions.” As a result, First Amendment coverage should extend to all communications that form public opinion, he contends. Those who object to speech aimed at influencing public opinion have …
Understanding The First Amendment, Robert Post
Understanding The First Amendment, Robert Post
Washington Law Review
It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible.
Democratic Competence, Constitutional Disorder, And The Freedom Of The Press, Stephen I. Vladeck
Democratic Competence, Constitutional Disorder, And The Freedom Of The Press, Stephen I. Vladeck
Washington Law Review
In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post’s book by focusing on the potential interaction between Post’s theory of “democratic competence” and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a “democratic competence” approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer …
Defining "Breach Of The Peace" In Self-Help Repossessions, Ryan Mcrobert
Defining "Breach Of The Peace" In Self-Help Repossessions, Ryan Mcrobert
Washington Law Review
Since Roman times, creditors have invoked the limited extrajudicial remedy of self-help repossession. Pre-colonial English laws also allowed for a limited repossession remedy outside of the courts, provided the creditor accomplished the repossession without a “breach of the peace.” The Uniform Commercial Code (UCC) has allowed for the self-help remedy since the 1950s, making it available for any secured party in the event of contractual default so long as there was no breach of the peace. The drafters of the UCC, however, failed to define what constituted a “breach of the peace,” choosing to allow the courts to flesh out …
The Guardians Of Knowledge In The Modern State: Post's Republic And The First Amendment, Ronald K.L. Collins, David M. Skover
The Guardians Of Knowledge In The Modern State: Post's Republic And The First Amendment, Ronald K.L. Collins, David M. Skover
Washington Law Review
No abstract provided.
The First Amendment, The Courts, And "Picking Winners", Thomas L. Ambro, Paul J. Safier
The First Amendment, The Courts, And "Picking Winners", Thomas L. Ambro, Paul J. Safier
Washington Law Review
Dean Robert Post’s book—Democracy, Expertise, and Academic Freedom—reflects and requires serious thought about our First Amendment. This Essay addresses just two of the many interesting assertions Dean Post makes. The first is his claim that the advancement of knowledge in a democracy springs primarily from the knowledge that experts gather in discerning good from bad ideas, and that recognizing this value requires courts to develop criteria for determining which viewpoints are better in ongoing debates among experts. The second is Dean Post’s contention that the U.S. Constitution protects an individual right to academic freedom, which requires enforcing this …
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Washington Law Review
This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public …
Selected Bibliography Of First Amendment Scholarship, Robert C. Post
Selected Bibliography Of First Amendment Scholarship, Robert C. Post
Washington Law Review
Consists of articles, books, and book chapers.
Addressing The Costs And Comity Concerns Of International E-Discovery, John T. Yip
Addressing The Costs And Comity Concerns Of International E-Discovery, John T. Yip
Washington Law Review
The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (ediscovery) of many different forms of ESI. In 1978, the U.S. Supreme Court held that the party responding to an e-discovery request presumptively pays all e-discovery costs, including the costs of preserving, producing, and reviewing the requested ESI. Therefore, the rapidly increasing volume of ESI has substantially increased the costs of e-discovery for producing parties. In the 2003 case, Zubulake v. UBS Warburg LLC, the U.S. District Court for the Southern District of New York established a …
Graham On The Ground, Cara H. Drinan
Graham On The Ground, Cara H. Drinan
Washington Law Review
In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What …
Driving Dangerously: Vehicle Flight And The Armed Career Criminal Act After Sykes V. United States, Isham M. Reavis
Driving Dangerously: Vehicle Flight And The Armed Career Criminal Act After Sykes V. United States, Isham M. Reavis
Washington Law Review
The Armed Career Criminal Act (ACCA), a federal “three-strikes” recidivist statute, applies a mandatory enhancement to sentences of criminal defendants previously convicted of three qualifying predicate crimes. In Sykes v. United States the U.S. Supreme Court held that a conviction for fleeing police by car counted as a predicate under ACCA’s residual provision for crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.” ACCA’s residual provision has produced a confusing series of U.S. Supreme Court decisions, each applying a different method for determining its scope. Though Sykes borrows methods from each of these …
Panopticism For Police: Structural Reform Bargaining And Police Regulation By Data-Driven Surveillance, Mary D. Fan
Panopticism For Police: Structural Reform Bargaining And Police Regulation By Data-Driven Surveillance, Mary D. Fan
Washington Law Review
Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police—and the groups threatening to sue the police—are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This …
Recalibrating Constitutional Innocence Protection, Robert J. Smith
Recalibrating Constitutional Innocence Protection, Robert J. Smith
Washington Law Review
This Article examines the constitutional nature of the right of a prisoner to receive post-conviction relief based solely on the claim that he is innocent. Part I explores innocence protection as an animating value of constitutional criminal procedure (Part I.A) and describes how developments in the way that crimes are investigated, proved, and reexamined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Part I.B). Part II explores how realigning the importance of innocence protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also …
Independence For Washington State's Privileges And Immunities Clause, P. Andrew Rorholm Zellers
Independence For Washington State's Privileges And Immunities Clause, P. Andrew Rorholm Zellers
Washington Law Review
Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied …
High-Tech Harassment: Employer Liability Under Title Vii For Employee Social Media Misconduct, Jeremy Gelms
High-Tech Harassment: Employer Liability Under Title Vii For Employee Social Media Misconduct, Jeremy Gelms
Washington Law Review
Workplace harassment has traditionally occurred within the “four walls” of the workplace. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee’s work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title …
Discernable Differences: A Survey Of Civil Jury Demands, M. Michelle Dunning
Discernable Differences: A Survey Of Civil Jury Demands, M. Michelle Dunning
Washington Law Review
Under Washington State’s historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a “less number.” The Washington Legislature reversed this presumption in 1972. Washington’s civil jury now consists of six persons, unless one of the parties files a specific demand for twelve. It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey’s results and explores what they might mean, positing seven considerations that …