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Full-Text Articles in Law

Sentencing Study, Dan Kilpatric, Jack Brummel Nov 1976

Sentencing Study, Dan Kilpatric, Jack Brummel

Washington Law Review

Sentencing constitutes the critical connection between the criminal law and the penal system. Therefore, any analysis of sentencing involves fundamental and perplexing questions about the purposes and problems of the criminal justice system. This comment will focus on one of those problems: the exercise of judicial discretion in sentencing.


Administrative Law—Freedom Of Information Act—Agency Secrecy Continues—Nlrb V. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Board V. Grunman Aircraft Engineering Corp., 421 U.S. 168 (1975), Greg Adams Nov 1976

Administrative Law—Freedom Of Information Act—Agency Secrecy Continues—Nlrb V. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Board V. Grunman Aircraft Engineering Corp., 421 U.S. 168 (1975), Greg Adams

Washington Law Review

Sears, Roebuck and Company brought an action under the Freedom of Information Act (FOIA) to compel disclosure of Advice and Appeals Memoranda issued by the General Counsel of the National Labor Relations Board. In ordering disclosure of both sets of documents, the district court held that Advice Memoranda qualified under the Act as "'instructions' [to staff] which affect a member of the public," but that Appeals Memoranda were "final opinions" which did not fall within the Act's exemption for "intra-agency memoranda." The Court of Appeals for the District of Columbia affirmed without opinion. In another case requiring interpretation of ...


Criminal Law—Multiple Punishment Under The Organized Crime Control Act—A Need For Reexamination Of Wharton's Rule And Double Jeopardy—Iannelli V. United States, 420 U.S. 770 (1975), Christopher L. Koch Nov 1976

Criminal Law—Multiple Punishment Under The Organized Crime Control Act—A Need For Reexamination Of Wharton's Rule And Double Jeopardy—Iannelli V. United States, 420 U.S. 770 (1975), Christopher L. Koch

Washington Law Review

Robert lannelli and seven other petitioners were charged with conspiring to violate and violating 18 U.S.C. § 1955, a federal gambling statute which makes it a crime for five or more persons to conduct, finance, manage, supervise, direct, or own a gambling business prohibited by state law. Each petitioner was convicted of both offenses, and each was sentenced under both counts. On appeal the petitioners argued that conviction of both conspiracy and the substantive offense was precluded by Wharton's Rule, a common law exception to the principle that a substantive offense and a conspiracy to commit the offense ...


Community And Separate Property Interests In Life Insurance Proceeds: The Risk Payment Doctrine In State Courts And Its Federal Estate Tax Consequences, James M. Higbee Nov 1976

Community And Separate Property Interests In Life Insurance Proceeds: The Risk Payment Doctrine In State Courts And Its Federal Estate Tax Consequences, James M. Higbee

Washington Law Review

This comment will first examine the decisions of the Louisiana, Texas, Arizona, Idaho, and New Mexico courts in which the risk payment doctrine has been approved for use with term insurance in order to determine how well established the doctrine is in each state. The status of the risk payment doctrine in state courts is important because "state property rules control the estate taxation of community property life insurance." The estate tax consequences of the risk payment doctrine will then be considered.


Child Support Enforcement And Establishment Of Paternity As Tools Of Welfare Reform—Social Services Amendments Of 1974, Pt. B, 42 U.S.C. §§ 651-60 (Supp. V, 1975), Judith B. Stouder Nov 1976

Child Support Enforcement And Establishment Of Paternity As Tools Of Welfare Reform—Social Services Amendments Of 1974, Pt. B, 42 U.S.C. §§ 651-60 (Supp. V, 1975), Judith B. Stouder

Washington Law Review

This note will discuss the purposes of' the amendrnents, describe how the provisions are intended to, work, and indicate what is required by HEW and the state welfare agencies for compliance. Constitutional and administrative problems that can be anticipated as the provisions are implemented will also be explored. Finally, the existing Washington State system of child support enforcement will be explained and offered as an example of a successful approach to this difficult problem.


Sources Of Prior Art In Patent Law, Donald S. Chisum Nov 1976

Sources Of Prior Art In Patent Law, Donald S. Chisum

Washington Law Review

The question of what is prior art involves at least four different dimensions. The first is the dimension of time. When does art become "prior"? When, if ever, is it too old and forgotten to be considered prior art? The second is the dimension of place. The patent statutes make both United States and foreign patents and publications prior art, but limit knowledge, use, and invention to "in this country." When is something "in this country," and why is this distinction made? The third is the dimension of scope. What is the pertinent art to which the invention pertains? How ...


Formalism And Nonformalism In Choice Of Law Methodology, William C. Powers, Jr. Nov 1976

Formalism And Nonformalism In Choice Of Law Methodology, William C. Powers, Jr.

Washington Law Review

This article presents an analysis of choice of law methodologies in terms of their formal and nonformal characteristics. In Part I, formal and nonformal decisionmaking processes are defined, and their benefits and detriments are examined. In Part II, two concrete choice of law problems—the New York experience with host-guest statutes and the policy of validation in contractual and testamentary transactions—are studied to highlight the pitfalls of both formal and nonformal choice of law approaches. In Part III, the shift from formalism to nonformalism in choice of law methodology is analyzed from the perspective of a general theory of ...


Federal Securities Law—Fraud—Supreme Court Affirmation Of The Birnbaum Rule—Blue Chip Stamps V. Manor Drug Stores, 421 U.S. 723 (1975), Douglass A. North Oct 1976

Federal Securities Law—Fraud—Supreme Court Affirmation Of The Birnbaum Rule—Blue Chip Stamps V. Manor Drug Stores, 421 U.S. 723 (1975), Douglass A. North

Washington Law Review

This note will examine the historical background and development of the Birnbaum rule and will consider the Supreme Court's reasoning in its first examination of that rule. Taking the position that the Birnbaum rule is generally a useful one, this note nevertheless suggests that the rule should be applied more flexibly in the future in order to achieve its twin objectives of admitting valid claims and excluding nuisance suits. Particularly questioned will be the Court's failure to delineate and consider separately the validity of the substantive portion of the Birnbaum rule; the Court's wholehearted acceptance of the ...


Reductions In Force Rationale: Teachers "Riffed" In Levy Losses, Patricia J. O'Hanley Oct 1976

Reductions In Force Rationale: Teachers "Riffed" In Levy Losses, Patricia J. O'Hanley

Washington Law Review

This comment will review the development of due process requirements for teacher reduction in force in Washington, and will consider the specificity of notice required and the use of seniority as a standard for nonrenewals. It will examine the adverse impact of the Pierce decision in implicitly upholding the delegation of staff reduction responsibility by schools' boards of directors to individual building personnel, concluding that seniority no longer holds the preferred position of the earlier interpretation in Thayer v. Anacortes School District, but is modified by individual district policies and guidelines.


Medical Malpractice—Unconscious Patient—Liability For Defective Instruments—Hospitals And Enterprise Liability—Anderson V. Somberg, 67 N.J. 291, 338 A.2d 1 (1973), John Ludlow Oct 1976

Medical Malpractice—Unconscious Patient—Liability For Defective Instruments—Hospitals And Enterprise Liability—Anderson V. Somberg, 67 N.J. 291, 338 A.2d 1 (1973), John Ludlow

Washington Law Review

In November 1967, defendant Dr. Somberg performed spinal surgery, using general anesthetic, on the plaintiff. During the procedure a jaw of the pituitary rongeur he was using broke off and lodged in the plaintiff's spine. The doctor terminated the operation after numerous unsuccessful attempts to recover the fragment. Four months later he retrieved the jaw in a second operation. The plaintiff suffered permanent injuries for which he sought recovery from the following: (1) Dr. Somberg for negligently causing the rongeur to break; (2) the hospital in which the surgery was performed for negligently furnishing a defective instrument; (3) the ...


Criminal Law—Affirmative Defenses In The Washington Criminal Code—The Impact Of Mullaney V. Wilbur, 421 U.S. 684 (1975), Pamela Cowan Oct 1976

Criminal Law—Affirmative Defenses In The Washington Criminal Code—The Impact Of Mullaney V. Wilbur, 421 U.S. 684 (1975), Pamela Cowan

Washington Law Review

A Maine jury found Stillman E. Wilbur, Jr., guilty of murder after the prosecution's proof of two elements: (1) that the homicide was unlawful, and (2) that it was intentional. Wilbur offered no evidence on his behalf to negate or otherwise refute the state's case other than his statement that he attacked the deceased in a frenzy provoked by a homosexual advance. The trial judge instructed the jury that if the prosecution established the above two elements, malice aforethought was to be conclusively inferred, unless the defendant proved by a fair preponderance of the evidence that he had ...


The New Dimensions Of Constitutional Adjudication, Archibald Cox Oct 1976

The New Dimensions Of Constitutional Adjudication, Archibald Cox

Washington Law Review

The new dimensions to which my title refers are of a different order; they are not substantive but institutional. That the Supreme Court has always played a partly political role—that it has always made a certain amount of public policy in some areas under the guise of interpreting the Constitution—is all too obvious. That it has usually felt partly bound by "law" is equally obvious to anyone who understands the self-discipline of the legal method. The question of emphasis always remains. How large or small is—or should be—the political element in judicial decisions? There also remains ...


Constitutional Law—Freedom Of The Press—Newsman's Privilege To Refuse Disclosure Of Confidential Sources In Criminal Trial—Farr V. Pitchess, 522 F.2d 464 (9th Cir. 1975), Cert. Denied, 98 S. Ct. 3200 (1976), Brian A. Morrison Oct 1976

Constitutional Law—Freedom Of The Press—Newsman's Privilege To Refuse Disclosure Of Confidential Sources In Criminal Trial—Farr V. Pitchess, 522 F.2d 464 (9th Cir. 1975), Cert. Denied, 98 S. Ct. 3200 (1976), Brian A. Morrison

Washington Law Review

Although interpreting prior case law to create a limited constitutional newsman's privilege, the Farr court did not adequately weigh the appropriate competing interests in denying the reporter's privilege to protect the confidentiality of his sources. This note will suggest that the court's overreliance upon the fair trial interest and its failure to analyze the newsman's testimonial privilege precluded the court from effectively utilizing the balancing test it stated to be applicable. As will be demonstrated, evaluation of the first amendment interest, when weighed against the opposing need for disclosure, should have led to a contrary decision ...


Restructuring The Legislature: A Proposal For Unicameralism In Washington, Randall A. Peterman, Philip Talmadge Oct 1976

Restructuring The Legislature: A Proposal For Unicameralism In Washington, Randall A. Peterman, Philip Talmadge

Washington Law Review

The tenability of such a unicameral legislature in Washington will be analyzed by examining: 1) the background and history of unicameralism; 2) the effect of the reapportionment cases on the need for a bicameral legislature; 3) the "efficiency" of a unicameral as opposed to a bicameral legislature; and 4) means of implementing a change from bicameralism to unicameralism. In addition, results of the authors' poll of state legislators and a sample constitutional amendment are presented.


Attorneys' Fees—Public Interest Law—Beyond Alyeska: Creating A Workable Private Attorney General Exception—Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975), Stephen M. Todd Oct 1976

Attorneys' Fees—Public Interest Law—Beyond Alyeska: Creating A Workable Private Attorney General Exception—Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975), Stephen M. Todd

Washington Law Review

Following a successful appeal in litigation undertaken in the public interest, plaintiffs Wilderness Society and others requested an award of attorneys' fees. The Court of Appeals for the District of Columbia Circuit adopted the "private attorney general" exception to the American rule which bars fee shifting and authorized an award against codefendant Alyeska Pipeline Service Company of one-half of the reasonable value of the legal services utilized by plaintiffs. On certiorari, the Supreme Court reversed. Held: Absent congressional authorization, federal courts lack the equity power to award attorneys' fees to a private litigant for the vindication of a statutory right ...


A Rebuttal To The Attack On The Indeterminate Sentence, Sue Titus Reid Jul 1976

A Rebuttal To The Attack On The Indeterminate Sentence, Sue Titus Reid

Washington Law Review

As the preceding sentence indicates, the indeterminate sentence has recently come under attack. Although criticisms that should be considered seriously can be directed at the indeterminate sentence, the time for its abolition has not yet arrived. This article will discuss the history and treatment philosophy underlying the indeterminate sentence, but will not consider all the objections to the indeterminate sentence. Rather, the focus will be on the philosophical and practical problems of implementing the treatment philosophy. It will conclude that the system itself should not be viewed as solely responsible for its shortcomings because abuses of the system, as well ...


Symposium: Law And The Correctional Process In Washington. Editor's Note, Philip Talmadge Jul 1976

Symposium: Law And The Correctional Process In Washington. Editor's Note, Philip Talmadge

Washington Law Review

In recent months the Washington correctional system has come under aittack for failing to limit criminal activity by effectively deterring future offenders or successfully treating those offenders presently within the system. Responding to this public interest, this Symposium issue examines the adult correctional system, the jails, juvenile proceedings, and commitment procedures in Washington. The reader is provided with a step-by-step explanation of these proceedings, and personal observations from those intimately involved with corrections are also included to acquaint the reader with the thought processes of individuals implementing the correctional system. The Washington Law Review hopes that these materials will not ...


Mental Commitment And The Principle Of Equivalence, Stephen E. Oliver Jul 1976

Mental Commitment And The Principle Of Equivalence, Stephen E. Oliver

Washington Law Review

This comment advances the argument—herein referred to as the principle of equivalence—that because these trial and commitment proceedings are analytically more similar than different, the same standards of due process should be applied to each.


Juvenile Court: The Legal Process As A Rehabilitative Tool, Bobbe Jean Ellis Jul 1976

Juvenile Court: The Legal Process As A Rehabilitative Tool, Bobbe Jean Ellis

Washington Law Review

The author's study, reported in this comment, had two objectives. First, it attempted to determine whether a juvenile's experience with the traditional sociological model or with the legal due process model is more likely to motivate him to feel positively toward the legal system. Second, this study attempted to measure the attitudes of the professionals in the juvenile system (judges, attorneys, and caseworkers) toward the two models. The results of the study, although not all were statistically significant, indicated that although the professionals favored the traditional sociological model, the use of the legal-due process model was more likely ...


Constitutional Law—Due Process—Civil Commitment—Absent Treatment, A Nondangerous Mentally Ill Person Able To Survive Safely In Society Has A Constitutional Right To Release—O'Connor V. Donaldson, 422 U.S. 563 (1975), Sheila M. Burnstein Jul 1976

Constitutional Law—Due Process—Civil Commitment—Absent Treatment, A Nondangerous Mentally Ill Person Able To Survive Safely In Society Has A Constitutional Right To Release—O'Connor V. Donaldson, 422 U.S. 563 (1975), Sheila M. Burnstein

Washington Law Review

Plaintiff Kenneth Donaldson, a former state mental patient, brought an action for damages under 42 U.S.C. § 19831 in federal district court against five state hospital officials alleged to have intentionally and maliciously deprived him of his constitutional right to liberty. Despite repeated efforts to secure his release, the plaintiff was confined in a Florida state mental hospital for nearly fifteen years following his civil commitment in 1957 for care, maintenance, and treatment. Although the plaintiff was provided with routine custodial care during his hospital stay, he received no psychiatric treatment for his presumed mental illness. Contending that the ...


Good Intentions Gone Awry—A Proposal For Fundamental Change In Criminal Sentencing, Christopher T. Bayley Jul 1976

Good Intentions Gone Awry—A Proposal For Fundamental Change In Criminal Sentencing, Christopher T. Bayley

Washington Law Review

This article will discuss the individual treatment model and analyze the fallacies of current sentencing practices and philosophies. Concluding that the treatment model is inappropriate because it fails to consider fundamental principles of justice and the purposes of the criminal law, it will offer an alternative proposal for sentencing that is not dependent on the theory of rehabilitation.


Washington Jails: A Legislative Failure, Bob Free Jul 1976

Washington Jails: A Legislative Failure, Bob Free

Washington Law Review

This article will examine the present condition of Washington's jails and the existing statutes governing them. It concludes that the passage of comprehensive jail standards legislation is needed to protect the rights of the confined.


Prisoners' Right Of Access To Courts: Planning For Legal Aid, Geoffrey P. Alpert Jul 1976

Prisoners' Right Of Access To Courts: Planning For Legal Aid, Geoffrey P. Alpert

Washington Law Review

The civil rights movement has reached into prisons and jails, directing public attention to the fact that prisoners are also beneficiaries of the rights and privileges that the Constitution extends to all citizens. After a discussion of the development of prisoners' rights, this article will survey the major cases establishing prisoners' rights of access to courts and legal assistance. It will summarize previous research dealing with prisoners and their legal problems on a national scale, and extend that research by presenting the findings of a recent research project conducted in the Washington State prison system evaluating the legal needs of ...


A Perspective On Adult Corrections In Washington, Richard C.J. Kitto, Jr. Jul 1976

A Perspective On Adult Corrections In Washington, Richard C.J. Kitto, Jr.

Washington Law Review

Any proposals for reform of Washington's correctional process must be evaluated in the context of factual information concerning the present system. This comment will familiarize those interested in correctional issues with the legal and institutional framework of the Washington system. The first section of the comment describes the course of events experienced by an adult offender immediately after conviction of a felony, whether upon a guilty plea or by a verdict of guilty following a trial. It examines the probation decision, the sentencing process, the institutions, and the parole considerations for those offenders subject to the correctional system. The ...


Improving The Criminal Justice System: The Need For A Commitment, Donald J. Horowitz Jul 1976

Improving The Criminal Justice System: The Need For A Commitment, Donald J. Horowitz

Washington Law Review

Society asks a great deal of the criminal justice system. It asks for protection, punishment, rehabilitation, and humanity; it simultaneously asks that the system operate accurately, efficiently and fairly. Recently, societal concern has been sharply focused on the criminal justice system and most particularly on its correctional and sentencing aspects. The rising crime rate is blamed on the failure of the system to deal properly with offenders. This assumes too great a potency in the criminal justice system however; many other factors in society have a far greater impact on the incidence of crime and violence. The criminal justice system ...


A Judge's Personal Perspective On Criminal Sentencing, Solie M. Ringold Jul 1976

A Judge's Personal Perspective On Criminal Sentencing, Solie M. Ringold

Washington Law Review

The imposition of sanctions on convicted offenders is a principal vehicle for accomplishing the goals of the criminal law. An appropriate sentencing disposition is as important to the integrity of our system of justice as is the just determination of guilt. Yet the problems, questions, frustrations and self-analysis involved in the sentencing process are complex and heavy burdens. Each judge required to impose a criminal sentence is faced with the difficult tasks of determining the future life of the individual before him or her, balancing the impact on the individual with the needs of society, and drawing the line between ...


The Board Of Prison Terms And Paroles: Criteria In Decision Making, George W. Johnson Jul 1976

The Board Of Prison Terms And Paroles: Criteria In Decision Making, George W. Johnson

Washington Law Review

The following is a summary of the mechanics of the Board's operation in the sentencing process, after which the policies underlying its decision-making process will be examined. The State of Washington has a modified indeterminate sentence structure. The maximum term for each felony is limited by statute and, if the arrestee is convicted, the court must impose a maximum term within the statutory guidelines. The minimum term is generally fixed by the Board. Neither the court-imposed maximum nor the Board-determined minimum actually indicates the length of time necessarily spent in prison, however, because Washington has a good time law ...


The Board Of Prison Terms And Paroles And Indeterminate Sentencing: A Critique, Jack Meyerson Jul 1976

The Board Of Prison Terms And Paroles And Indeterminate Sentencing: A Critique, Jack Meyerson

Washington Law Review

The Board of Prison Terms and Paroles is given the authority to release most felons from prison when it has determined that the prisoner has been rehabilitated, regardless of the length of time the prisoner has served. Rehabilitation usually consists of satisfactory participation in a formal prison program designed to change the person's criminal behavior into behavior which is more acceptable. The Board has, however, become a target of manipulation by prisoners who indicate outward compliance with rehabilitation procedures in order to be deemed "rehabilitated" and therefore released from prison prior to the expiration of their maximum sentences. In ...


Tax Consequences Of Post-Dissolution Support Payment Arrangements, Roland L. Hjorth Mar 1976

Tax Consequences Of Post-Dissolution Support Payment Arrangements, Roland L. Hjorth

Washington Law Review

The economic settlement accompanying a marriage dissolution may consist of one or both of the following: (1) the initial "property settlement," sometimes referred to as a "division" of property when only community property is involved; and (2) provisions for maintenance payments categorized as alimony, child support, or some combination thereof. The tax problems of property settlements have been analyzed previously by the author. They are considered here only to the extent necessary to distinguish property settlements paid in installments from periodic maintenance payments made for the support of a former spouse, or for children of the marriage, or both. The ...


Professional Responsibility: Education And Enforcement, Robert H. Aronson Mar 1976

Professional Responsibility: Education And Enforcement, Robert H. Aronson

Washington Law Review

The failure of the Bar to regulate effectively the ethical conduct of its members is not solely the failure of law school teaching methodology. A much more serious deficiency-and one far more difficult to resolve—concerns the way lawyers perceive and attempt to enforce professional responsibility. Instead of providing an analytical framework which the individual lawyer can employ in considering problems arising in practice, the legal profession has chosen a series of ambiguous and only tangentially related rules which are often contradictory or misleading. Because these situation-oriented rules do not clearly encompass even a majority of the myriad factors potentially ...