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Articles 1 - 30 of 41
Full-Text Articles in Law
Mission Revival Jurisprudence: State Courts And Hispanic Water Law Since 1850, Peter L. Reich
Mission Revival Jurisprudence: State Courts And Hispanic Water Law Since 1850, Peter L. Reich
Washington Law Review
In this Article, the author argues that after the United States' annexation of the Southwest, state judges in California, New Mexico, and Texas knowingly distorted the communal nature of applicable Spanish and Mexican water law. While previous scholars have acknowledged that courts misinterpreted municipal and riparian water rights originating in the Southwest's Hispanic period, most historians have attributed the distortion to ignorance rather than design. Using archival sources, the author demonstrates that American judges created an historical fiction of "Spanish" absolute water control, and intentionally disregarded actual law and custom dictating water apportionment. The resulting doctrines of pueblo water rights …
In Re Marriage Of Mcdole: Modifying Child Custody By Ignoring Statutory Grounds, Virginia A. Petersen
In Re Marriage Of Mcdole: Modifying Child Custody By Ignoring Statutory Grounds, Virginia A. Petersen
Washington Law Review
In In re Marriage of McDole, the Washington Supreme Court upheld the modification of a parenting plan that changed the primary residential parent. By relying in part on the mother's interference with visitation, the court not only undermined the important policy underlying the modification statute of maximizing finality in custody determinations, but it also failed to read the modification statute as a whole. The court also inappropriately relied on the mother's move out of the state and continued conflict between the parents. The court further failed to explicitly explain the legal bases for its decision, providing little guidance for future …
Gilding The Iron Rice Bowl: The Illusion Of Shareholder Rights In China, Matthew D. Latimer
Gilding The Iron Rice Bowl: The Illusion Of Shareholder Rights In China, Matthew D. Latimer
Washington Law Review
In the late 1970s, the People's Republic of China (P.R.C.) embarked upon a program of economic reform that has resulted in the issuance of equity securities in previously state-owned enterprises. with the recent advent of national stockmarkets, national securities legislation is emerging to supplement and further define prior local-level regulation. Despite these new laws, however, private investors still lack many of the protections enjoyed by investors in Western financial markets. This Comment examines these disparities and suggests that non-state investors in China's nascent financial markets still lack an effective means of overseeing the policy decisions of State-owned corporations and face …
Causation And Injury In Corporate Control Transactions: Cede & Co. V. Technicolor, Inc., Jacqueline M. Veneziani
Causation And Injury In Corporate Control Transactions: Cede & Co. V. Technicolor, Inc., Jacqueline M. Veneziani
Washington Law Review
In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court held that shareholders are not required to prove injury from corporate directors' failure to exercise due care in approving a merger transaction. Tort principles, the court stated, have no role in a business judgment rule analysis. Therefore, once shareholders prove a violation of the directors' duty of care, the burden is shifted to the directors to prove the entire fairness of the transaction despite the absence of a breach of the duty of loyalty. This Note argues that the entire fairness review of a disinterested board transaction is unworkable. …
Corporate Versus Contractual Mutual Funds: An Evaluation Of Structure And Governance, Wallace Wen Yeu Wang
Corporate Versus Contractual Mutual Funds: An Evaluation Of Structure And Governance, Wallace Wen Yeu Wang
Washington Law Review
This Article develops an analytic framework to evaluate the comparative merits of the structure and governance of the two dominant types of mutual funds—the Corporate Fund (the U.S. model) and the Contractual Fund (the German, Japanese and British models). The former is characterized by centralized decision-making functions, while the latter employs a more decentralized structure. The semi-hierarchical structure of the Corporate Fund leads to significant transaction costs such as influence, intervention and collective decision-making costs. Specifically, the board of directors is not effective in negotiating performance-related terms (e.g., fees), and shareholder suits based on fiduciary duties do not adequately address …
The White Plague Returns: Law And The New Tuberculosis, Kollin K. Min
The White Plague Returns: Law And The New Tuberculosis, Kollin K. Min
Washington Law Review
Tuberculosis (TB) rates in the United States have increased dramatically over the past decade. The most disturbing aspect of the disease's resurgence is the rising prevalence of multidrug-resistant tuberculosis (MDR-TB), which is frequently fatal and is far more difficult to treat than conventional TB. To combat the spread of the disease, state legislatures throughout the country are rewriting outdated tuberculosis control laws. Many public health officials have suggested that in order to control MDR-TB effectively, modem TB statutes must grant the state the ability to detain even non-infectious patients who may develop MDR-TB in the future. This Comment examines the …
Reentering The Golden Door: Waiving Good-Bye To Exclusion Grounds For Permanent Resident Aliens, William Mckay Bennett
Reentering The Golden Door: Waiving Good-Bye To Exclusion Grounds For Permanent Resident Aliens, William Mckay Bennett
Washington Law Review
Under the exclusion provisions of the Immigration and Nationality Act (INA), an alien admitted to the United States for permanent residence can be prohibited from reentering the United States after a trip out of the country. Because exclusion grounds differ from deportation grounds, permanent resident aliens who are not deportable could leave the country and find themselves excluded at the border upon return. The INA provides relief in such cases by allowing permanent resident aliens who have lived in the United States for over seven years to apply for a discretionary waiver of exclusion grounds under INA § 212(c). In …
Simas V. Quaker Fabric Corp.: Erisa Preemption Of Statutory Tin Parachutes, Kristin D. Anger
Simas V. Quaker Fabric Corp.: Erisa Preemption Of Statutory Tin Parachutes, Kristin D. Anger
Washington Law Review
In Simas v. Quaker Fabric Corp., the First Circuit invalidated Massachusetts's innovative tin parachute statute, designed to assist workers displaced by corporate takeovers, by finding it preempted by ERISA. After examining the relationship between the tin parachute and ERISA and the analysis in Simas, this Note argues that preemption was mandated neither by ERISA itself nor by decisions interpreting its preemptive reach. In light of the state interest at stake, the Simas decision is unfortunate and suggests the need for a legislative solution.
For The Sake Of The Child: Moving Toward Uniformity In Adoption Law, Marja E. Selmann
For The Sake Of The Child: Moving Toward Uniformity In Adoption Law, Marja E. Selmann
Washington Law Review
Adoption is governed by state law, which varies dramatically among states, and thus encourages forum shopping and complicates interstate adoption. A new Uniform Adoption Act (UAA), likely to be completed and approved by the National Conference of Commissioners on Uniform State Laws in 1994, offers states the opportunity to move toward greater uniformity. The UAA balances all of the participants' interests while keeping the child's best interests foremost.
Keynote Address—The 21st Century Lawyer: Is There A Gap To Be Narrowed?, Robert Maccrate
Keynote Address—The 21st Century Lawyer: Is There A Gap To Be Narrowed?, Robert Maccrate
Washington Law Review
This law school symposium on the Twenty-First Century Lawyer reflects a fundamental shift in the focus of legal education within the academy—from law in the abstract toward the reality of law in the daily work of lawyers. While holding firm to their scholarly mission, law schools are giving increasing attention to the world of lawyer performance and the needs of their students to be prepared to participate effectively in the legal profession. The 1992 Report entitled Legal Education and Professional Development-An Educational Continuum, by a task force of the American Bar Association Section of Legal Education and Admissions to the …
The Washington State Parenting Act In The Courts: Reconciling Discretion And Justice In Parenting Plan Disputes, Jane W. Ellis
The Washington State Parenting Act In The Courts: Reconciling Discretion And Justice In Parenting Plan Disputes, Jane W. Ellis
Washington Law Review
On July 8, 1993, the Washington Supreme Court handed down a decision construing the residential provision section of the Washington State Parenting Act. The case is significant for the children of divorcing parents in the State of Washington, and its importance extends beyond Washington because the supreme court's opinion is the first to interpret a key section of a law that has attracted national and international attention The case, In re Marriage ofKovacs, is an example of the sort of egregious injustice that can occur when a trial court fails to exercise its discretion in an appropriate manner and an …
Fisons: Will It Tame The Beast Of Discovery Abuse?, Barbara J. Gorham
Fisons: Will It Tame The Beast Of Discovery Abuse?, Barbara J. Gorham
Washington Law Review
In WSPIEA v. Fisons, the Washington Supreme Court held that evasive and misleading discovery tactics violate Civil Rule 26(g). This Note examines the discovery tactics used in Fisons against the backdrop of the historic failure of courts to impose adequate sanctions for discovery abuse. It argues that courts must do more to deter discovery abuse by clearly articulating the requirements of the rules governing discovery, imposing severe sanctions for discovery abuse, and closely monitoring discovery in large, complex cases.
Introduction: The Maccrate Report—Heuristic Or Prescriptive?, Wallace Loh
Introduction: The Maccrate Report—Heuristic Or Prescriptive?, Wallace Loh
Washington Law Review
There is a freight train gathering speed on the tracks of legal education, and it is called SSV—Statement of Skills and Values. This SSV stands as the centerpiece of the Report of the ABA Task Force on Law Schools and the Profession: Narrowing the Gap, better known as the MacCrate Report, named after its chair, Robert MacCrate. The MacCrate Report has ignited a rational debate on curricular reform that is becoming increasingly intense. Viewed broadly, SSV may represent the greatest proposed paradigm shift in legal education since Langdell envisioned legal education as the pursuit of legal science through the case …
On Teaching Professional Judgment, Paul Brest, Linda Krieger
On Teaching Professional Judgment, Paul Brest, Linda Krieger
Washington Law Review
To answer the question posed by the conveners of this symposium, of course there is a gap between legal education and the legal profession. There has always been one, and quite possibly it has widened somewhat in recent years, if for no other reason than that the world in which lawyers practice has changed so much while legal education has changed relatively little. The external changes include the internationalization of legal transactions, the centrality of technology to many aspects of practice, increased specialization driven by the proliferation and complexity of statutory and regulatory schemes, and the overloading of traditional systems …
Another "Postscript" To "The Growing Disjunction Between Legal Education And The Legal Profession", Harry T. Edwards
Another "Postscript" To "The Growing Disjunction Between Legal Education And The Legal Profession", Harry T. Edwards
Washington Law Review
"The Gap Between Legal Education and the Needs of the Profession," the subject of this symposium, is a matter about which I have had much to say over the past two years. In the October 1992 edition of the Michigan Law Review, I expressed my deep concern about "the growing disjunction between legal education and the legal profession," in an article with the same title.
Education For A Public Calling In The 21st Century, Phoebe A. Haddon
Education For A Public Calling In The 21st Century, Phoebe A. Haddon
Washington Law Review
A decade ago, an issue of the Association of American Law Schools' Journal of Legal Education was devoted to ruminations on selecting lawyers for the twenty-first century. Although some of the papers in the Journal issue offered congratulatory messages to legal educators and the Law School Admissions Council for their work, others more critically assessed legal education and the admissions process, warning of an impending "mid-life crisis" caused in part by an unreflective period of maturation. Focusing on two decades of "applicant explosion," affording the conscious creation of "a more intellectually elite profession,"' a number of the authors who submitted …
From Sink Or Swim To The Apprenticeship: Choices For Lawyer Training, Lucy Isaki
From Sink Or Swim To The Apprenticeship: Choices For Lawyer Training, Lucy Isaki
Washington Law Review
Our symposium today asks the question: Is there a gap in lawyer training to be narrowed? My answer is: Probably. Is it any greater than the gap that existed twenty or thirty years ago? I think not. Law schools are graduating women and men well prepared to begin the practice of law. True, there is much that new law school graduates do not yet know. But in a short time—two to three years—most new law graduates gain the skills and substantive knowledge needed to be successful.
Economic Reality Facing 21st Century Lawyers, Thomas D. Morgan
Economic Reality Facing 21st Century Lawyers, Thomas D. Morgan
Washington Law Review
Our predictions of future developments may be wrong, but if we do not at least think seriously about what skills these students will need to participate in the rapidly changing legal profession, we as legal educators will be certain to disserve both our students and their future clients.
Narrowing The Gap By Narrowing The Field: What's Missing From The Maccrate Report—Of Skills, Legal Science And Being A Human Being, Carrie Menkel-Meadow
Narrowing The Gap By Narrowing The Field: What's Missing From The Maccrate Report—Of Skills, Legal Science And Being A Human Being, Carrie Menkel-Meadow
Washington Law Review
I come here today, not to bury the MacCrate Report, but to criticize it, not for what it includes, although that is part of my critique, but for what it leaves out. I also want to situate my critique in the contentious intellectual history of legal education and legal scholarship, that, in my view, has too long polarized both the intellectual value and rigor of "law" (conceived of either as doctrine or theory) and "skills" (those nasty things that real lawyers have to do to express "the law" and represent clients). Among the most recent entries to this debate is …
Back To The Crib?, William B. Stoebuck
Back To The Crib?, William B. Stoebuck
Washington Law Review
First, let me note that this Rembe Lecture honors Toni Rembe, Esq., a distinguished graduate of this law school, class of 1960. Toni and I knew each other as fellow students and members of the Washington Law Review, since I was class of 1959. After graduating here, she took a Master of Laws in taxation at New York University in 1961. Then she joined the premier San Francisco law firm of Pillsbury, Madison & Sutro, where she has long been the head of the tax law division. Toni, who is a Seattle native, has maintained her ties to this city. …
Somewhere Farther Down The Line: Maccrate On Multiculturalism And The Information Age, Burnele V. Powell
Somewhere Farther Down The Line: Maccrate On Multiculturalism And The Information Age, Burnele V. Powell
Washington Law Review
A couple of months ago, sometime after I was invited by Symposium Editor Ruth Kennedy to participate in today's discussion, I got a telephone call from her. She wanted to know the title of my remarks. I, of course, had no idea, what I would entitle these remarks because I was still freshly in the throes of trying to write these remarks. Only moments before the phone rang, I had been preoccupied with several CDs that I had recently purchased and was thinking about the task ahead of me. It did occur to me, however, that there was something I …
Are Oliver Stone And Tom Clancy Journalists? Determining Who Has Standing To Claim The Journalist's Privilege, Kraig L. Baker
Are Oliver Stone And Tom Clancy Journalists? Determining Who Has Standing To Claim The Journalist's Privilege, Kraig L. Baker
Washington Law Review
Most circuits recognize a qualified privilege that provides a partial First Amendment shield for journalists to protect the confidentiality of their sources and materials. Few courts, however, discuss the scope of the class protected by this privilege. This Comment examines who has traditionally been part of the protected class and explores the trends and concerns of courts in granting standing. This Comment also recommends a framework that courts can use to determine whether to extend the journalist's privilege to new formats of communication and applies this framework to two examples.
Lost And Foundry: Forging A New Approach To Patent Licensing Agreements, Lawrence D. Graham
Lost And Foundry: Forging A New Approach To Patent Licensing Agreements, Lawrence D. Graham
Washington Law Review
The Federal Circuit has been inconsistent in its treatment of patent licensing agreements held by foundries. Recently, the Federal Circuit held that a foundry contract is a sale of goods that severs the right of the patentee with respect to the buyer under the patent exhaustion doctrine. In addition, it held that the applicable license would be construed to allow foundry rights unless the patentee could prove otherwise. This Note analyzes a string of Federal Circuit cases involving foundries and patent licenses. It concludes that a foundry contract should be viewed as a sale of services rather than a sale …
"Sexual Motivation" After State V. Halstien: Still Hazy For His Teenage Peers, Robert E. Lipscomb
"Sexual Motivation" After State V. Halstien: Still Hazy For His Teenage Peers, Robert E. Lipscomb
Washington Law Review
In State v. Halstien, the Washington Supreme Court upheld the constitutionality of a juvenile statute that provides for a charge of sexual motivation in offenses other than sex offenses. Such motivation, if proven, becomes an aggravating factor that a judge may consider (along with any mitigating factors) in sentencing. In rejecting the argument that the statute was void for vagueness, the court should have clarified the statute by requiring a finding that the defendant manifested a sexual disorder, as well as a finding that sexual motivation was a substantial factor in the offense.
The Making Of The Model Employment Termination Act, Theodore J. St. Antoine
The Making Of The Model Employment Termination Act, Theodore J. St. Antoine
Washington Law Review
Courts in about 45 states have ameliorated the harshness of employment at will, but the common-law modifications still exhibit serious deficiencies. Legislation is needed. The Model Employment Termination Act proposes a balanced compromise. It would protect most employees against discharge without good cause and it would relieve employers of the risk of devastating financial losses When liability is imposed. Arbitration procedures under the Model Act would also be simpler, faster, and cheaper than existing court proceedings.
The Worker Participation Conundrum: Does Prohibiting Employer-Assisted Labor Organizations Prevent Labor-Management Cooperation?, Robert B. Moberly
The Worker Participation Conundrum: Does Prohibiting Employer-Assisted Labor Organizations Prevent Labor-Management Cooperation?, Robert B. Moberly
Washington Law Review
Worker participation and labor-management cooperation have been important concepts in labor relations for more than a decade. Recently, some proponents of labor management cooperation have argued that the statutory prohibition against employer assistance to labor organizations contained in section 8(a)(2) of the National Labor Relations Act has hampered the development of worker participation programs and ought to be repealed or modified. Others are opposed both to repealing the prohibition and to labor-management cooperation in general. This Article argues that worker participation and labor-management cooperation are beneficial and ought to be encouraged; nonetheless, the prohibition against employer-assisted labor organizations is important …
The Admissibility Of Dna Evidence In Washington After State V. Cauthron, Elizabeth A. Allen
The Admissibility Of Dna Evidence In Washington After State V. Cauthron, Elizabeth A. Allen
Washington Law Review
In State v. Cauthron, the Washington Supreme Court issued its first opinion concerning forensic DNA evidence. The court clearly held that the principles underlying DNA evidence and the restricted fragment length polymorphism (RFLP) method of DNA typing are generally accepted in the scientific community and are therefore admissible under the Frye test. The court refused to find that the trial court had properly admitted DNA evidence, however, because testimony that the suspect's DNA "matched" the perpetrator's was not supported by probability statistics. This Note demonstrates that the court was unclear in its discussion of when probability statistics meet the Frye …
Software Copyright Infringement Claims After Mai Systems V. Peak Computer, Trinnie Arriola
Software Copyright Infringement Claims After Mai Systems V. Peak Computer, Trinnie Arriola
Washington Law Review
In MAI Systems Corp. v. Peak Computer, Inc. the Ninth Circuit Court of Appeals held that Peak committed copyright infringement by running MAI operating system software incidental to Peak's repair of the computer system. The court rejected Peak's section 117 defense under the Copyright Act because it refused to recognize a licensee of computer software as an "owner" of a copy of software. This Note argues that the decision contravenes both the substance and principles of federal copyright law, and unnecessarily harms computer owners. It suggests a two-tiered analysis that courts should follow when evaluating copyright infringement claims involving software …
Out Of The Twilight Zone: The Implications Of Daubert V. Merrill Dow Pharmaceuticals, Inc., Diana K. Sheiness
Out Of The Twilight Zone: The Implications Of Daubert V. Merrill Dow Pharmaceuticals, Inc., Diana K. Sheiness
Washington Law Review
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence had not implicitly incorporated the general acceptance, or Frye, test for scientific evidence. Instead, the Court interpreted Rule 702 to mean that judges should admit challenged scientific testimony only after determining that its underlying method or theory is scientifically valid. This Note argues that the essence of the Daubert decision is that judges must ascertain whether or not the studies underlying proffered testimony have been performed in accordance with sound scientific principles. The Note analyzes several cases to illustrate appropriate and …
The Ties Of Natural Justice: Restoring Quantum Meruit For Contractors In Washington, Adam B. Brotman
The Ties Of Natural Justice: Restoring Quantum Meruit For Contractors In Washington, Adam B. Brotman
Washington Law Review
Under Washington case law, quantum meruit is an appropriate means of recovery for contractors when substantial changes occur that are not covered by the contract and were not contemplated by the parties. The Nelse Mortensen and Hensel Phelps decisions severely limited quantum meruit by precluding contractors from recovering under this doctrine as a matter of law. This Comment examines how these two cases are at odds with the historical and philosophical underpinnings of quantum meruit, and with the Washington Supreme Court's decision in Berg v. Hudesman. Rather than apply Hensel Phelps's plain meaning analysis, future quantum meruit decisions should follow …