Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

University of Washington School of Law

2003

Discipline
Keyword
Publication
Publication Type

Articles 1 - 30 of 85

Full-Text Articles in Law

Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny Nov 2003

Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny

Washington Law Review

In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include …


Unpacking New Policing: Confessions Of A Former Neighborhood District Attorney, Alafair S. Burke Nov 2003

Unpacking New Policing: Confessions Of A Former Neighborhood District Attorney, Alafair S. Burke

Washington Law Review

This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of "new discretion" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called "communities" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. …


Abrogation Or Regulation? How Anderson V. Evans Discards The Makah's Treaty Whaling Right In The Name Of Conservation Necessity, Zachary Tomlinson Nov 2003

Abrogation Or Regulation? How Anderson V. Evans Discards The Makah's Treaty Whaling Right In The Name Of Conservation Necessity, Zachary Tomlinson

Washington Law Review

From 1787 to 1871, the federal government and various Indian tribes entered into hundreds of treaties. Under well-established U.S. Supreme Court precedent, the U.S. Congress has plenary authority to abrogate or modify any of these treaties. The U.S. Supreme Court is reluctant to find congressional intent to do so, however, and requires that this intent be clear and plain. States have no such power to qualify treaties, but the Court has allowed states to regulate treaty rights when doing so is necessary for species conservation. While the U.S. Supreme Court has kept these two lines of cases distinct, the U.S. …


Applicant In Intervention - Appellant Samish Indian Tribe's Reply Brief Sep 2003

Applicant In Intervention - Appellant Samish Indian Tribe's Reply Brief

United States v. Washington, Docket No. 03-35145 (394 F.3d 1152 (9th Cir. 2005))

No abstract provided.


Profile, Summer 2003 Sep 2003

Profile, Summer 2003

Alumni Magazines

No abstract provided.


Answering Brief For The United States Aug 2003

Answering Brief For The United States

United States v. Washington, Docket No. 03-35145 (394 F.3d 1152 (9th Cir. 2005))

No abstract provided.


Tribal Appellees' Brief Aug 2003

Tribal Appellees' Brief

United States v. Washington, Docket No. 03-35145 (394 F.3d 1152 (9th Cir. 2005))

No abstract provided.


Fish As Pollutants: Limitations Of And Crosscurrents In Law, Science, Management, And Policy, Jeremy Firestone, Robert Barber Aug 2003

Fish As Pollutants: Limitations Of And Crosscurrents In Law, Science, Management, And Policy, Jeremy Firestone, Robert Barber

Washington Law Review

When we think of pollutants, we either consciously or unconsciously draw a bright line between pollutants and what might be called "natural." That which is natural cannot be a pollutant; that which is a pollutant cannot be natural. It seems odd to speak of live fish as pollutants, as odd as it would be to speak of dioxins as natural. Nevertheless, the traditional definition of fish as natural may be fading as our awareness of the adverse environmental effects of accidental or poorly planned fish introductions increases. Along these lines, a federal court recently found that non-native Atlantic salmon that …


Miranda'S Poisoned Fruit Tree: The Admissibility Of Physicial Evidence Derived From An Unwarned Statement, Kirsten Lela Ambach Aug 2003

Miranda'S Poisoned Fruit Tree: The Admissibility Of Physicial Evidence Derived From An Unwarned Statement, Kirsten Lela Ambach

Washington Law Review

Miranda v. Arizona created an exclusionary rule that prohibits using, as part of the prosecution's case in chief, evidence that is obtained as the result of unwarned custodial interrogation. In Michigan v. Tucker and Oregon v. Elstad, the United States Supreme Court narrowed the scope of this rule in relation to the "fruit of the poisonous tree" doctrine that excludes all evidence derived from constitutional violations. The Tucker Court held that the testimony of a witness identified from an unwarned statement should be admitted, and the Elstad Court held that a warned statement following an unwarned statement should also …


Dr. Jekyll's Waiver Of Mr. Hyde's Right To Refuse Medical Treatment: Washington's New Law Authorizing Mental Health Care Advance Directives Needs Additional Protections, Nick Anderson Aug 2003

Dr. Jekyll's Waiver Of Mr. Hyde's Right To Refuse Medical Treatment: Washington's New Law Authorizing Mental Health Care Advance Directives Needs Additional Protections, Nick Anderson

Washington Law Review

Mental health care advance directives are gaining popularity nationwide. Following a growing trend, the Washington State Legislature has recently passed a law allowing patients to draft mental health care advance directives that could be irrevocable. Patients who sign an irrevocable directive essentially waive their fundamental right to refuse treatment in the future. The United States Supreme Court has held that waivers of fundamental rights must be made knowingly, voluntarily, and intelligently. However, as passed, Washington's new law contains insufficient safeguards to guarantee such a waiver. This Comment proposes that the Washington State Legislature amend this law to require two additional …


The Bonds Of Joint Tax Liability Should Not Be Stronger Than Marriage: Congressional Intent Behind § 6015(C) Separation Of Liability Relief, Svetlana G. Attestatova Aug 2003

The Bonds Of Joint Tax Liability Should Not Be Stronger Than Marriage: Congressional Intent Behind § 6015(C) Separation Of Liability Relief, Svetlana G. Attestatova

Washington Law Review

Spouses who file joint tax returns are jointly and severally liable for any resulting tax deficiency. In the past, only innocent spouses—those with no knowledge of the tax understatement—could qualify for relief from such liability. In 1998, Congress expanded existing innocent spouse relief and added two new forms of relief—the separation of liability and discretionary relief provisions. Codified at 26 U.S.C. § 6015(c), separation of liability relief allocates items that give rise to a deficiency to each spouse as if they had filed separate returns, and is only available to spouses who are divorced, separated, or living apart. However, a …


When Animals Invade And Occupy: Physical Takings And The Endangered Species Act, Rebecca E. Harrison Aug 2003

When Animals Invade And Occupy: Physical Takings And The Endangered Species Act, Rebecca E. Harrison

Washington Law Review

Government actions implementing the Endangered Species Act (ESA) on private lands have sparked extensive debate and litigation over whether such actions result in Fifth Amendment takings. To date, courts have uniformly rejected regulatory takings claims under the ESA, leading several landowners to advance a different theory-physical takings claims. Successful physical takings claims require landowners to show that government actions resulted in either per se physical takings or compensable physical invasions of their land. In two recent decisions, Boise Cascade Corp. v. United States,/i> and Seiber v. United States, courts rejected per se physical takings claims under the ESA, finding …


Fair And Reasonable Compensation Means Just That: How § 253 Of The Telecommunications Act Preserves Local Government Authority Over Public Rights-Of-Way, Jennifer Amanda Krebs Aug 2003

Fair And Reasonable Compensation Means Just That: How § 253 Of The Telecommunications Act Preserves Local Government Authority Over Public Rights-Of-Way, Jennifer Amanda Krebs

Washington Law Review

Section 253(c) of the 1996 Telecommunications Act expressly preserves local government authority to require fair and reasonable compensation from telecommunications providers for use of public rights-of-way. Although local government authority to require compensation for franchises is based in state law, some courts have overlooked state law when evaluating the validity of franchise fees. In addition, courts have interpreted § 253(c) narrowly, allowing local governments to recover only direct costs. This narrow interpretation of § 253(c) contradicts its text and legislative history, as well as analogous United States Supreme Court precedent. Further, this interpretation could lead to unconstitutional results, by allowing …


Aboriginal Title Or The Paramountcy Doctrine? Johnson V. Mcintosh Flounders In Federal Waters Off Alsaka In Native Village Of Eyak V. Trawler Diane Marie, Inc., Andrew P. Richards Aug 2003

Aboriginal Title Or The Paramountcy Doctrine? Johnson V. Mcintosh Flounders In Federal Waters Off Alsaka In Native Village Of Eyak V. Trawler Diane Marie, Inc., Andrew P. Richards

Washington Law Review

In Johnson v. McIntosh and its progeny, the United States Supreme Court established the principle that aboriginal title allows Indian tribes to exclusively use and occupy their territories after they come under United States sovereignty. In Native Village of Eyak v. Trawler Diane Marie, Inc., five Alaska Native villages asserted aboriginal title to areas of the seabed and ocean off Alaska. The villages argued that federal fisheries regulations violate their aboriginal title by allowing non-Natives to fish within those areas, while excluding most of the villagers. The United States Court of Appeals for the Ninth Circuit rejected the villages' …


Applicant In Intervention - Appellant Samish Indian Tribe's Opening Brief Jun 2003

Applicant In Intervention - Appellant Samish Indian Tribe's Opening Brief

United States v. Washington, Docket No. 03-35145 (394 F.3d 1152 (9th Cir. 2005))

No abstract provided.


Rural Women's Land Rights In Java, Indonesia: Strengthened By Family Law, But Weakened By Land Registration, Jennifer Brown May 2003

Rural Women's Land Rights In Java, Indonesia: Strengthened By Family Law, But Weakened By Land Registration, Jennifer Brown

Washington International Law Journal

In Java, Indonesia, only about one-third of land title certificates reflect ownership by women. This lack of registered land ownership can potentially harm women by depriving them of influence within the household and leaving them vulnerable in cases of divorce or a spouse's death. This Article argues that effective land registration mechanisms and legal and social recognition of women's property rights all play a critical role in protecting women's ownership interests. Interviews with landowners and government officials in Java reveal that Indonesia's land registration processes do not effectively advance ownership rights granted under the nation's family law. Despite the government's …


Recent Intensification Of Investor Protection In The Korean Securities Market: The Mandatory And Fair Disclosure Systems, Kwang-Rok Kim May 2003

Recent Intensification Of Investor Protection In The Korean Securities Market: The Mandatory And Fair Disclosure Systems, Kwang-Rok Kim

Washington International Law Journal

This Article analyzes the Korean fair disclosure system and the Korean mandatory disclosure system under the Korean Securities and Exchange Act ("KSEA"). After the turbulence in the financial markets resulting from the economic crises of late 1997, the South Korean government realized that the Korean economy had failed to keep pace with the world economy. The Korean economy underwent many changes after being offered financial relief from the International Monetary Fund. As part of these changes, the government adopted a series of structural reform measures to improve the standard of corporate governance and enhance corporate management. The KSEA now provides …


The Good, Bad, And Unintended: American Lessons For Cambodia's Effort Against Domestic Violence, Sonja K. Hardenbrook May 2003

The Good, Bad, And Unintended: American Lessons For Cambodia's Effort Against Domestic Violence, Sonja K. Hardenbrook

Washington International Law Journal

Despite numerous laws that guarantee women equal rights and prohibit violence, the current Cambodian legal system has proven inadequate to combat spousal abuse. In response, the Royal Government of Cambodia has proposed a draft-law specifically aimed at domestic violence. However, if enforcement of current Cambodian law in domestic violence situations is any indication, the proposed law has little hope of implementation. Current cultural paradigms make the Cambodian police and the public at large view domestic violence as a private matter rather than a crime. Thus, Cambodia is in need of new strategies to reduce domestic violence. Cambodia is not alone …


Private Enforcement Of Securities Fraud Law In China: A Critique Of The Supreme People's Court 2003 Provisions Concerning Private Securities Litigation, Guiping Lu May 2003

Private Enforcement Of Securities Fraud Law In China: A Critique Of The Supreme People's Court 2003 Provisions Concerning Private Securities Litigation, Guiping Lu

Washington International Law Journal

On January 9, 2003, China's Supreme People's Court issued a new ruling with detailed provisions governing private securities litigation involving disclosure of false or misleading information. The new ruling is expected to play an important role in regulating and developing China's securities markets by providing a necessary judicial safeguard against infringement upon investors' interests. The new ruling, however, is unlikely to achieve its expected effect due to various procedural and substantive hurdles to investor access to judicial recourse. The built-in procedural hurdles either make it very difficult for securities investors to bring private actions, or, in some circumstances, deprive them …


Prosecuting International Terrorists: The Abu Sayyaf Attacks And The Bali Bombing, Sarah E. Tilstra May 2003

Prosecuting International Terrorists: The Abu Sayyaf Attacks And The Bali Bombing, Sarah E. Tilstra

Washington International Law Journal

In May 2001, three Americans were kidnapped and held hostage by members of Abu Sayyaf, a guerilla group attempting to establish an Islamic state in the southern Philippines. Two of those Americans were later killed. In October 2002, a nightclub on the Indonesian resort island of Bali was destroyed in an explosion, killing over 200 people, 88 of whom were Australians. Members of the Islamic group Jemaah Islamiyah are suspected of masterminding the attack. The Abu Sayyaf suspects have yet to be caught, but Indonesia is preparing to prosecute some of the Bali bombing suspects beginning in May 2003. Using …


Alternative Dispute Resolution As A Means Of Access To Justice In The Russian Federation, Elena Nosyreva, Douglas Carman, Dana Tumenova May 2003

Alternative Dispute Resolution As A Means Of Access To Justice In The Russian Federation, Elena Nosyreva, Douglas Carman, Dana Tumenova

Washington International Law Journal

This Article represents recent scholarship in Russian jurisprudence concerning the use of alternative dispute resolution procedures. It was written by a professor who is an active participant in law reform projects addressing the problems of elaborating legislation to articulate the rights and duties of parties involved in economic and other disputes. This Article covers three forms of dispute resolution—negotiations, claims-based dispute resolution, and mediation—and identifies characteristics of these procedures that are peculiar to the Russian context. By reviewing the forms of conflict resolution employed in Soviet-era command economy and exploring the contours of contemporary Russian "legal culture," the Article attempts …


China's New Foreign Law Firm Regulations: A Step In The Wrong Direction, Jane J. Heller May 2003

China's New Foreign Law Firm Regulations: A Step In The Wrong Direction, Jane J. Heller

Washington International Law Journal

Following China's accession to the World Trade Organization ("WTO"), the Chinese government issued new regulations governing foreign law firms in China. A number of commentators have analyzed these regulations to evaluate whether China is "'on track" to fulfilling the commitments it undertook to gain entry to the WTO. However, a more basic question that should be addressed is whether the new regulations meet China's goals in joining the WTO: to foster trade and economic development and to accelerate the growth of China's legal profession. Although China appeared willing to engage in significant liberalization of the legal services sector when it …


Preemptive Strikes And The Korean Nuclear Crisis: Legal And Political Limitations On The Use Of Force, Kelly J. Malone May 2003

Preemptive Strikes And The Korean Nuclear Crisis: Legal And Political Limitations On The Use Of Force, Kelly J. Malone

Washington International Law Journal

On January 29, 2002, President George W. Bush linked North Korea, Iran and Iraq as members of an "Axis of Evil," alleging that North Korea's attempts to acquire weapons of mass destruction constituted a threat to international peace and security. On September 20, 2002, the Bush Administration released its National Security Strategy ("Strategy"). The Strategy adopted a doctrine of preemptive action that, although recognized historically, has been significantly limited by the U.N. Charter. In doing so, the Bush Administration has challenged traditional limits on the use of force, attempting to adapt the concept of "imminent threat" to the danger posed …


The Pain Of Love: Spousal Immigration And Domestic Violence In Australia—A Regime In Chaos?, E. Odhiambo-Abuya May 2003

The Pain Of Love: Spousal Immigration And Domestic Violence In Australia—A Regime In Chaos?, E. Odhiambo-Abuya

Washington International Law Journal

A fundamental step that the 1994 Australian Migration Regulations developed into the immigration framework was to grant certain concessions to non-Australian spouses and interdependent partners who suffer domestic violence at the hands of their Australian counterparts. Victims of domestic violence are eligible to apply for permanent residence notwithstanding the otherwise applicable two-year waiting period. To understand the domestic violence exception, this Article explores the jurisprudence that has emerged from courts and other immigration tribunals. The Article proposes that further legislative and policy changes should be made in order to seal identified "gaps," and to provide clear guidance to interested parties, …


Who Owns "The Law"? The Effect On Copyrights When Privately-Authored Works Are Adopted Or Enacted By Reference Into Law, Katie M. Colendich May 2003

Who Owns "The Law"? The Effect On Copyrights When Privately-Authored Works Are Adopted Or Enacted By Reference Into Law, Katie M. Colendich

Washington Law Review

The law," including judicial opinions and statutes, is not copyrightable because neither individuals nor organizations own the law. This longstanding principle is supported by the public's due process right to access the law. The United States Supreme Court has never determined the status of a private organization's copyright on model codes or standards when a legislature adopts those materials into law. Federal courts have taken several different approaches to resolving this issue; however, their decisions are in direct conflict with each other. The Second and Ninth Circuits permit private authors to retain copyrights of materials subsequently enacted into law, while …


What Is The Rule Of Law? Perspectives From Central Europoe And The American Academy, Louis E. Wolcher May 2003

What Is The Rule Of Law? Perspectives From Central Europoe And The American Academy, Louis E. Wolcher

Washington Law Review

The title of my talk is "What is the Rule of Law?"—and its subtitle is "Perspectives from Central Europe and the American Academy." I represent the "American Academy" part, and as I will make clear in a little while, the other part comes from my sustained engagement, over the past ten years, with legal theorists and political philosophers in the Republic of Slovenia. Slovenia, by the way, is a nation that was created twelve years ago as the northernmost of those "breakaway" republics of the former Yugoslavia.


The Forseeability Of Transference: Extending Employer Liability Under Washington Law For Therapist Sexual Exploitation Of Patients, Timothy E. Allen May 2003

The Forseeability Of Transference: Extending Employer Liability Under Washington Law For Therapist Sexual Exploitation Of Patients, Timothy E. Allen

Washington Law Review

Transference, or the idealization of therapists, is a phenomenon that is foreseeable in every relationship between a therapist and a patient, and makes patients uniquely vulnerable to sexual exploitation by therapists. Transference has been recognized as a basis for finding therapists directly liable for harm resulting from sexual relations with patients. However, limitations on damages directly available from therapists lead patients to seek redress from therapists' employers under theories of employer liability. Washington courts generally deny victimized patients relief from the employers of sexually exploitative therapists. This Comment argues that Washington courts should impose employer liability when therapists sexually exploit …


A Is Not A: Washington's Unconstitutional Law Of Single-Count, Single-Defendant Inconsistent Verdicts In State V. Goins, Natasha Shekdar Black May 2003

A Is Not A: Washington's Unconstitutional Law Of Single-Count, Single-Defendant Inconsistent Verdicts In State V. Goins, Natasha Shekdar Black

Washington Law Review

In State v. Goins, Division I of the Washington State Court of Appeals upheld inconsistent general and special verdicts on the same charge, even though the special verdict finding negated an element of the crime. The Goins court reasoned that the United States Supreme Court and the Washington State Supreme Court had previously upheld inconsistent verdicts in various contexts because the verdicts could have been the result of jury lenity. Therefore, overruling existing precedent, the Goins court upheld the inconsistent verdicts on the ground that distinguishing the Goins context would be elevating form over substance. This Note argues that …


Classes, Persons, Equal Protection, And Village Of Willowbrook V. Olech, Robert C. Farrell May 2003

Classes, Persons, Equal Protection, And Village Of Willowbrook V. Olech, Robert C. Farrell

Washington Law Review

In most contexts, the Equal Protection Clause serves as a limitation on government classifications, but it has also been used as a protector of individual rights. These competing versions of equal protection are contradictory, but courts have for the most part ignored this problem. In Village of Willowbrook v. Olech, the United States Supreme Court determined that an individual homeowner had stated a valid equal protection claim when she alleged that she alone, without regard to her membership in any class, had been treated differently from other similarly situated homeowners. The Court's decision in Olech has created a powerful …


Traditional Equity And Contemporary Procedure, Thomas O. Main May 2003

Traditional Equity And Contemporary Procedure, Thomas O. Main

Washington Law Review

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …