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Articles 1 - 30 of 35
Full-Text Articles in Law
Indian Tribes And The Legal System, Ralph W. Johnson
Indian Tribes And The Legal System, Ralph W. Johnson
Washington Law Review
This article surveys the past and present role of lawyers in the field of Indian law, from the absence of attorneys in early treaty negotiations through the formative role lawyers played in developing the federal trust relationship, to their modem role as "legal warriors" for the increasingly independent, autonomous tribes of today. To understand all the changes now occurring in Indian law, a review of the background is helpful. What follows is a synopsis of the significant events in Indian history, focusing on how the U.S. government initially treated Indians and the role the legal profession played in this treatment.
Wolf Warriors And Turtle Kings: Native American Law Before The Blue Coats, Rennard Strickland
Wolf Warriors And Turtle Kings: Native American Law Before The Blue Coats, Rennard Strickland
Washington Law Review
One of the great myths of the white invention of the Indian was that there was no law among Native Americans before the white man except for a single Indian "primitive" legal system of blood revenge, uniform across the North American continent. This is not so. Law existed among Native Peoples long before white contact. Quite simply, the Indians had law. Before white contact, Native America nourished a rich and diverse system of law-a system of law that varied dramatically from people to people.
Sierra Club V. Commissioner And The Royalty Exemption To The Unrelated Business Income Tax: How Much Activity Is Too Much?, Katherine A. Vanye
Sierra Club V. Commissioner And The Royalty Exemption To The Unrelated Business Income Tax: How Much Activity Is Too Much?, Katherine A. Vanye
Washington Law Review
In Sierra Club v. Commissioner, the Ninth Circuit decided that royalties are payments for the right to use intangible property and are by definition "passive." The court applied this definition and held that Sierra Club's income from renting its mailing list was a royalty payment and thus exempt from taxation. This Note argues that while the court reached the correct conclusion, it did not propose a clear standard to guide future cases. Two alternative approaches could be adopted: (1) ancillary versus significant services; or (2) comparative value of property and services. These alternatives will provide clearer guidelines and enable …
The Role Of Bilateralism In Fulfilling The Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, Charles Wilkinson
The Role Of Bilateralism In Fulfilling The Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, Charles Wilkinson
Washington Law Review
On June 5, 1997, Secretary of the Interior Bruce Babbitt and Secretary of Commerce William Daley signed a jointly-released Secretarial Order entitled "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act"' The Order culminated a year-and-a-half of work by tribes and federal officials to craft an administrative system for resolving difficult questions involving tribal rights and the Endangered Species Act (ESA). The Order is important for the ESA's implementation. It also carries broader significance, for it serves as one major example of how the government-to-government relationship between the United States and Indian tribes can be successfully implemented.
Taming The Bankruptcy Code's Toothless Tiger, 11 U.S.C. § 521(2), Julio M. Zapata
Taming The Bankruptcy Code's Toothless Tiger, 11 U.S.C. § 521(2), Julio M. Zapata
Washington Law Review
Federal appellate courts are divided on whether a debtor who files a Chapter 7 bankruptcy petition and is current on the underlying contractual obligation secured by collateral is able to retain the collateral without redeeming it or reaffirming the debt under section 521(2) of the Bankruptcy Code. The Fourth and Tenth Circuits hold that the Code's options are not exclusive. Thus, the debtor may retain the collateral and continue under the terms of the contract as long as the payments are current In contrast, the Seventh and Eleventh Circuits hold that a debtor's only options are those listed in section …
When Is Enough Enough? Reduction To Practice And Summary Judgment During Patent Priority Disputes, R. Douglas Bradley
When Is Enough Enough? Reduction To Practice And Summary Judgment During Patent Priority Disputes, R. Douglas Bradley
Washington Law Review
This Note examines the current U.S. Patent and Trademark Office standards for determining patent priority in an interference proceeding. In particular, this Note reviews and criticizes the procedural rules governing the implementation of summary judgment in an interference. In Schendel v. Curtis, the U.S. Court of Appeals for the Federal Circuit had the opportunity to articulate a clear analytical framework to guide Administrative Patent Judges in the determination of what experimental evidence, and how much of it, a party must present to establish a prima facie showing of reduction to practice. This Note argues that, in an interference proceeding, …
Overextended Borrowing: Tribal Peacemaking Applied In Non-Indian Disputes, Carole E. Goldberg
Overextended Borrowing: Tribal Peacemaking Applied In Non-Indian Disputes, Carole E. Goldberg
Washington Law Review
Respected figures within the U.S. legal system are saying that the system could be improved by borrowing elements from Native American dispute resolution. To longtime students of Indian Law, this is a striking shift of rhetoric. Historically, non-Indian America has either ignored or dismissed tribal law, often characterizing tribes as lawless. But has the rhetoric merely shifted from condescension to impractical romanticizing? This article examines and analyzes the position taken by non-Indian advocates of borrowing from tribal justice systems and considers whether such borrowing can really work.
Landowners Or Lifeguards? Degel V. Majestic Mobile Manor, Inc. And Liability For Visitors' Injuries From Natural Bodies Of Water, Joseph Z. Lell
Landowners Or Lifeguards? Degel V. Majestic Mobile Manor, Inc. And Liability For Visitors' Injuries From Natural Bodies Of Water, Joseph Z. Lell
Washington Law Review
Under an exception to the attractive nuisance doctrine, landowners typically owe no duty to warn and protect trespassing children from the dangers inherent in ponds, streams, and other natural bodies of water located on the owners' property. In Degel v. Majestic Mobile Manor, Inc., however, the Washington Supreme Court declined to extend this premises liability exception to situations where the injured visitor is an invitee of the landowner. This Note examines the natural bodies of water exception and argues that Degel's refusal to apply it in the invitee context ultimately conflicts with the court's earlier policy statement favoring …
The Author Effect After The "Death Of The Author": Copyright In A Postmodern Age, Elton Fukumoto
The Author Effect After The "Death Of The Author": Copyright In A Postmodern Age, Elton Fukumoto
Washington Law Review
Copyright law employs terms and concepts, such as "originality" and "authorship," which the Romantic movement developed. Post-structuralism and Postmodernism, influential intellectual and artistic trends, have attacked the "author" concept by undermining its philosophical foundations. But when Postmodem artists act in accordance with their anti-author beliefs, they expose themselves to liability for copyright infringement. Recent copyright cases illustrate the courts' not entirely satisfactory response to the artistic appropriation of previous works. This Comment suggests that the courts read a pastiche exception, broader than the current exception for parody, into the fair use defense for copyright infringement.
Consistent Inconsistency: Cercla Private Cost Recovery Actions And The Community Relations "Requirement", Shelley J. Pellegrino
Consistent Inconsistency: Cercla Private Cost Recovery Actions And The Community Relations "Requirement", Shelley J. Pellegrino
Washington Law Review
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides private parties with the right to recover their cleanup costs from third parties responsible for contaminating sites with hazardous waste. To do so, plaintiffs must show that their response costs are consistent with the National Contingency Plan (NCP), which establishes procedures and standards for hazardous waste cleanup. Courts presently diverge regarding the NCP community relations requirement. Some courts find that private parties satisfy these public participation provisions by working with a government agency. Other courts bold that private parties cannot recover their cleanup costs without providing the public with an …
Disability And The Public Schools: The Case Against "Inclusion", Anne Proffitt Dupre
Disability And The Public Schools: The Case Against "Inclusion", Anne Proffitt Dupre
Washington Law Review
The Individuals with Disabilities Education Act (IDEA) requires states that wish to qualify for federal assistance to demonstrate that they have a policy ensuring all children with disabilities the right to a "free appropriate public education." IDEA also requires that disabled children be educated with nondisabled children "to the maximum extent appropriate." This Article focuses on the tension between IDEA's mandates for appropriate education and integration to the maximum extent appropriate. Advocates of full inclusion claim that, under IDEA, all disabled children-regardless of characteristics-must be placed in the general education classroom for the entire day. Many courts have tacitly accepted …
Surrogate End Of Life Decisionmaking: The Importance Of Providing Procedural Due Process, A Case Review, Kathryn L. Tucker
Surrogate End Of Life Decisionmaking: The Importance Of Providing Procedural Due Process, A Case Review, Kathryn L. Tucker
Washington Law Review
In a hospital in the State of Washington, at the direction of family-member surrogates, the feeding tube was withdrawn from a resident patient. The patient had no advance directive or living will, nor had he expressed the desire (previously or contemporaneously) for withdrawal of life support. He had not been diagnosed as terminally ill or permanently unconscious. In fact, there was evidence that the patient had some cognitive function, desired to continue living, and desired continued life support. This evidence was presented to his caregivers immediately after the patient was advised of the withdrawal, yet life support was not resumed …
Giving Credit Where Credit Is Due: Revisiting The Doctrine Of Reverse Passing Off In Trademark Law, John T. Cross
Giving Credit Where Credit Is Due: Revisiting The Doctrine Of Reverse Passing Off In Trademark Law, John T. Cross
Washington Law Review
During the past twenty years, courts have increasingly come to accept a cause of action for "reverse passing off." Unlike the more typical case of passing off, reverse passing off occurs when a defendant sells a product manufactured by a plaintiff under the defendant's own mark. Despite this difference, courts regularly invoke federal and state trademark laws, including the Lanham Act, to give the plaintiff a right to recover. This Article challenges that conclusion. It argues that the Lanham Act does not actually support a cause of action against a defendant who engages in reverse passing off. In addition, most …
Preemption Of State Product Liability Claims Involving Medical Devices: Premarket Approval As A Shield Against Liability, Robin Helmick Turner
Preemption Of State Product Liability Claims Involving Medical Devices: Premarket Approval As A Shield Against Liability, Robin Helmick Turner
Washington Law Review
Under the Medical Device Amendments of 1976 (MDA), Congress established a complex scheme for regulating medical devices. Congress also included an express preemption provision in the Amendments that prohibits states from imposing different or additional requirements on devices. Much controversy has focused on whether the preemption provision operates to preempt plaintiffs' state product liability claims against medical device manufacturers. Although in Medtronic, Inc. v. Lohr the U.S. Supreme Court recently attempted to resolve the controversy, its ruling left open the question of whether manufacturers of devices subject to the most rigorous form of Food and Drug Administration scrutiny, known as …
Kochanksky V. Commissioner: The Assignment Of Income Doctrine, Community Property Law, And I.R.C. § 1041, Sarah Dods
Kochanksky V. Commissioner: The Assignment Of Income Doctrine, Community Property Law, And I.R.C. § 1041, Sarah Dods
Washington Law Review
In Kochansky v. Commissioner, the Ninth Circuit held that an attorney was fully taxable on a contingent fee he agreed to split with his spouse at divorce, reasoning that the assignment of income doctrine requires that income be taxed to the person who earns it. This Note observes that in applying the assignment doctrine, the Kochansky court erred by failing to determine the extent of the spouse's community property interest in the contingent fee; community property income must be taxed one-half to each spouse, regardless of which spouse earns it, which spouse collects it, and when it is collected. …
Double Indemnity For Operators Of Nuclear Facilities? In Re Hanford Nuclear Reservation Litigation, The Price-Anderson Act, And The Government Contractor Defense, Chris Addicott
Washington Law Review
Thousands of people who lived downwind of the Hanford Nuclear Reservation have brought suit against the contractors who operated the facility, claiming that radiation releases caused property damage, illness, and death. For the defendants, there is little at stake. Because they fall under the Price-Anderson Act, the U.S. Government will indemnify them for their legal expenses and any judgments against them. Nevertheless, the defendants have invoked the "government contractor defense," claiming that they should be immune from suit because anything they may have done wrong was done at the direction of the government. This Comment argues that the government contractor …
Pavčnik's Theory Of Legal Decisionmaking: An Introduction, Louis E. Wolcher
Pavčnik's Theory Of Legal Decisionmaking: An Introduction, Louis E. Wolcher
Washington Law Review
Professor Pavčnik is one of the most prolific and interesting of those academics from the formerly communist states of Central and Eastern Europe who are currently writing on topics germane to legal philosophy. I had the privilege of co-teaching two classes with him at the University of Ljubljana in the fall of 1996-one on legal theory and the other on the philosophy of law-and in the course of our collaboration I acquired a great deal of respect for both the man and his work. The editors of the Washington Law Review, having had the excellent judgment to want to publish …
Legal Decisionmaking As A Responsible Intellectual Activity: A Continental Point Of View, Marijan Pavčnik
Legal Decisionmaking As A Responsible Intellectual Activity: A Continental Point Of View, Marijan Pavčnik
Washington Law Review
The legal decision in a concrete case is never completely given in advance in the statute. A theory of legal decisionmaking that sees the decider as someone who merely "applies the law" is inadequate to explain what goes on in the process of legal decisionmaking. The legal decision is a value synthesis assessing the normative starting point with regard to the factual starting point, and vice versa. This means that a legal decision can only be made when the normative state of constituent facts of the case has been formed on the basis of the statute, when from the life …
Cries And Whispers: Environmental Hazards, Model Rule 1.6, And The Attorney's Conflicting Duties To Clients And Others, Irma S. Russell
Cries And Whispers: Environmental Hazards, Model Rule 1.6, And The Attorney's Conflicting Duties To Clients And Others, Irma S. Russell
Washington Law Review
This Article explores the attorney's duty of confidentiality in the context of environmental dangers, examining the history and purpose of the duty and the model ethical rule that controls issues of confidentiality, Rule 1.6 of the Model Rules of Professional Conduct ("Model Rules"). Important scholarship has criticized Model Rule 1.6, but that scholarship has not explored the effects of the Rule in the area where the stakes are highest: environmental catastrophes. The Article analyzes the Rule's text, commentary, and legislative history and discusses the two predominant views of the attorney in our society, the attorney as champion and as officer …
What A Long Strange Trip It's Been: Court-Created Limitations On Rights Of Action For Negligently Furnishing Alcohol, Sheldon H. Jaffe
What A Long Strange Trip It's Been: Court-Created Limitations On Rights Of Action For Negligently Furnishing Alcohol, Sheldon H. Jaffe
Washington Law Review
Under the traditional view of the common law, drinking alcohol rather than providing alcohol acted as the proximate cause of any resulting harm, and therefore furmishers of alcohol had no duty to the people served or those injured by the persons served. The Washington Supreme Court has held that negligently furnishing alcohol can be a proximate cause in tort but has severely limited rights of action: vendors who serve minors or obviously intoxicated adults may be sued by subsequently injured innocent third parties, and all people who serve alcohol to minors may face suit if the minor is subsequently injured …
Sheldon V. Fettig: Interpreting The Substitute Service Of Process Statute In Washington, Dana Richardson
Sheldon V. Fettig: Interpreting The Substitute Service Of Process Statute In Washington, Dana Richardson
Washington Law Review
In Sheldon v. Fettig, the Washington Supreme Court announced a new rule for interpreting Washington's substitute service of process statute. This new rule calls for a liberal reading of the substitute service of process statute to better effect its legislative purpose, thus overruling the line of cases calling for strict construction of the substitute service of process statute. This Note analyzes the basis of the former rule, the Sheldon rule, and the Sheldon dissent's proposed rule. It concludes that the former rule of interpretation should be retained because it preserves canons of strict construction and better protects defendants' due …
Judicial Deference To Administrative Construction Of Washington's Law Against Discrimination: Griffin V Eller And Marquis V. City Of Spokane, Michael Spiro
Washington Law Review
Washington's Law Against Discrimination is a broad remedial statute, granting both a general civil right to be free from discrimination and prohibiting certain specific "unfair practices." Although no person may be prevented from bringing a cause of action to enforce his or her civil rights, the remedies available for unfair practices are more limited. The Washington State Human Rights Commission ("Commission") recognized this statutory distinction, interpreting the Law Against Discrimination ("Act") to grant independent contractors the right to bring a cause of action for violations of their civil rights and to confine the statute's small employer exemption to its own …
Is Sky Reefer In Jeopardy? The Mla's Proposed Changes To Maritime Foreign Arbitration Clauses, Soo Sandra Jin Lee
Is Sky Reefer In Jeopardy? The Mla's Proposed Changes To Maritime Foreign Arbitration Clauses, Soo Sandra Jin Lee
Washington Law Review
After almost sixty years of change in the international commercial arena, the United States needs to revise its maritime law to reflect international practice. Recently, the U.S. Supreme Court, in Vimar Seguros y Reaseguros, S.A. v. MIV Sky Reefer, held that foreign arbitration clauses in maritime bills of lading will be enforced. In an attempt to reverse this decision, the Maritime Law Association included in its proposal to revise the Carriage of the Goods by Sea Act a clause that specifically denies the enforcement of foreign arbitration clauses. This Comment argues that Congress should not adopt the proposed revision …
Charter Schools, Common Schools, And The Washington State Constitution, L.K. Beale
Charter Schools, Common Schools, And The Washington State Constitution, L.K. Beale
Washington Law Review
Early American political thinkers deemed universal education essential to the proper functioning of a republican form of government. Accordingly, each state developed a public school system supported by general taxation. The Washington Constitution requires the system to be both "general" and "uniform." Common schools, for which certain school funds are constitutionally reserved, are the most important and only mandatory component of the system. Recent charter school proposals raise questions as to whether such institutions fit within a general and uniform system and whether they are "common schools" entitled to common school funds. In order to provide a framework for such …
Emergency Care And Managed Care—A Dangerous Combination, Diane E. Hoffman
Emergency Care And Managed Care—A Dangerous Combination, Diane E. Hoffman
Washington Law Review
Managed care plan subscribers in need of emergency medical treatment often face unduly restrictive plan practices. These practices may result in life-threatening injury or significant financial obligations on the part of plan subscribers. They are the result of a managed health care system that is inadequately regulated and overly concerned with cost control. Economic incentives lead plans to deny approval for emergency medical treatment or to deny retroactively coverage for such treatment. Emergency medical providers also are harmed by these practices, often forced to treat patients under federal law but denied payment for their services. This Article describes this problem …
A Matter Of Life And Death: Revising The Harmless Error Standard For Habeas Corpus Proceedings, David M. Bowman
A Matter Of Life And Death: Revising The Harmless Error Standard For Habeas Corpus Proceedings, David M. Bowman
Washington Law Review
Since 1967, federal courts have conducted harmless error analysis to determine whether to uphold a prisoner's conviction notwithstanding a constitutional error committed at the prisoner's trial. A review of the development of the harmless error doctrine reveals how the U.S. Supreme Court and federal courts have solidified a rational impact test to determine harmlessness. More recently, the U.S. Supreme Court has moved away from a clearly defined test with respect to errors alleged by habeas corpus petitioners. This Comment analyzes the obstacles faced by habeas petitioners in establishing a magnitude of error sufficient for reversal under the newer doctrine. It …
One Size Does Not Fit All: The Failure Of Washington's Licensing Standards For Alcohol And Drug Treatment Programs And Facilities To Meet The Needs Of Indians, Kelly S. Croman
Washington Law Review
It is well recognized that culturally and spiritually relevant alcohol and chemical dependency treatment programs are most successful. Washington's licensing standards for such programs and facilities, however, fail to address the cultural and spiritual needs of Indians who they serve. The State's current one-size-fits-all approach offers no hope for improved treatment outcomes for Indians. This Comment demonstrates the inadequacy of Washington's current treatment facility and program licensing standards and examines the high costs of maintaining these standards. The Comment concludes with a proposal for specific legislation for the State of Washington.
Lifesaving Legislation: But Will The Washington Stalking Law Survive Constitutional Scrutiny?, Jennifer A. Hueter
Lifesaving Legislation: But Will The Washington Stalking Law Survive Constitutional Scrutiny?, Jennifer A. Hueter
Washington Law Review
In 1992, the Washington Legislature responded to public demand for a law that would allow criminal prosecution of stalkers by enacting Washington Revised Code section 9AA6.1 10. This stalking legislation makes it a crime to harass or repeatedly follow another person. This law may infringe an individual's right to speak and move freely and, because the law may unconstitutionally limit protected conduct, a defendant may successfully challenge this statute's constitutionality in the future. This Comment examines the potential constitutional challenges to the stalking law and suggests revisions to the current language in the statute.
Yamaha Motor Corp. V. Calhoun: An Examination Of Jurisidiction, Choice-Of-Laws, And Federal Interests In Maritme Law, B.J. Haeck
Washington Law Review
In Yamaha Motor Corp. v. Calhoun, the U.S. Supreme Court determined that state remedies were still available for non-seamen killed inside of a state's three-mile territorial sea, despite the existence of a general maritime remedy at federal law. This Note argues that the Court failed to consider its traditional tests when confronted with this choice between state and federal maritime law. In so doing, it erred in finding that state law was applicable. The Court's decision also created a conflict between the traditional standard of significant federal interest required in order to confer federal admiralty jurisdiction to tort plaintiffs …
In Re Mahurkar: The Federal Circuit's Misapplied Focus On Commercialization In "On Sale" Bar Analysis, Hugh H. Matsubayashi
In Re Mahurkar: The Federal Circuit's Misapplied Focus On Commercialization In "On Sale" Bar Analysis, Hugh H. Matsubayashi
Washington Law Review
In In re Mahurkar Double Lumen Hemodialysis Catheter Patent Litigation, the Federal Circuit held that a "sham" sale of an invention did not implicate the statutory "on sale" bar, which makes unpatentable any invention placed on sale more than one year prior to the filing of a patent application. This Note analyzes the Mahurkar decision's focus on the lack of commercialization of the invention in finding that a valid U.C.C. sale of an invention already reduced to practice does not implicate the "on sale" bar. It argues that under traditional "on sale" bar standards, a commercialization analysis is only …