Law Commons^™

Fifty More Constitutions, Mary Whisner

Librarians' Articles

The U.S. Constitution may get all the attention, but as Ms. Whisner points out, state constitutional law is also important to legal researchers. Unfortunately, the sources for researching state constitutions are more limited and difficult to find. She describes a web site created by the Gallagher Law Library at the University of Washington School of Law that makes available sources of Washington State constitutional history.

"That Most Congenial Lawyer/Bibliographer", Mary Whisner

Librarians' Articles

Ms. Whisner delves into Morris L. Cohen's Bibliography of Early American Law, demonstrating how much information it contains that will be interesting and useful for law librarians.

Why Study Islamic Legal Professionals?, Clark B. Lombardi, R. Michael Feener

Washington International Law Journal

In many countries today, including the Southeast Asian nations of Indonesia, Malaysia, and Singapore, governments regulate some aspects of Muslim life according to Islamic law. The administration of Islamic law in these states is carried out by modern courts that are structured differently and staffed by different types of figures than were earlier institutions for the implementation of Islamic law. Prior to the modern era, courts tasked with the job of resolving cases according to Shari‛a were staffed by judges with a particular type of training, and litigants appearing before these judges were generally not represented by a specialized class …

China’S ‘Attitude’ Toward Human Rights: Reading Hungdah Chiu In The Era Of The Iraq War, Dongsheng Zang

Articles

China observers in the United States generally share two observations on China today: that China has made impressive progress in economic development in the past three decades, and that China has maintained a poor human rights record since the 1989 Tiananmen Massacre. On the economic front, China overtook Japan and became the second largest economy in 2010. In a joint study with China's Development Research Center of the State Council, the World Bank recently predicted that even if the Chinese economy grows a third as slowly in the future, it will outstrip the United States in terms of overall GDP …

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

This article sets out to analyze both intellectual property laws and tax systems as applied to computer software. It analyzes software within intellectual property's established doctrinal framework, a difficult task due to the fact that software can encompass some combination of the traits of copyrights, trade dress, patents, and trade secrets. It then examines both the federal and state tax systems governing software. It shows that fitting software within current tax schemes presents unique challenges, as software contains both tangible and intangible elements, is subject to varying intellectual property protections, and can be delivered through various media. The article argues …

Legal Ethics And Federal Taxes, 1945-1965: Patriotism, Duties, And Advice, Michael Hatfield

Articles

This article is devoted to exploring the legal ethics writings by tax lawyers in a pivotal period of income tax history: 1945-1965, the first two decades of the federal income tax as we now know it. Although the income tax began in 1913, it was World War II that created the modem mass income tax: in 1939 there were 3.9 million individual income tax taxpayers but by 1945 there were 42.6 million. This period was also one of significant progress in the administration of the income tax: the Internal Revenue Code was re-organized in 1954 and, following widespread corruption scandals, …

Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson

Articles

This Article canvasses the jurisdictional rules applicable in American Indian tribal territories-"Indian country." The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal …

The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts

Articles

The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts—not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, the U.S. Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking.

Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with …

Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz

Articles

Perhaps the law review literature does not need another article on the Federal Circuit’s case [320 F.3d 1317 (Fed. Cir. 2003, cert denied, 123 S.Ct. 2588 (2003)]. That case has received more than its share of attention from commentators, all criticizing Judge Rader’s majority opinion and most extolling the virtues of Judge Dyk’s dissent. Despite the storm of scholarly criticism, however, courts have followed Judge Rader’s opinion.

This Article tells the untold story of why courts have been wise to do so. The Article explains how commentators have argued that federal intellectual property law should have preempted Bowers’ claims …

Proving Corporate Criminal Liability For Negligence In Vessel Management And Operations: An Allision-Oil Spill Case Study, Craig H. Allen

Articles

Maritime policy analysts often invoke the "vessel safety net" metaphor to explain the independent, but overlapping, risk management roles and responsibilities of the vessel master and crew, owner and charterer, operating company, classification society, flag state and port states. Oil spills from the 2002 M/T Prestige break up off the coast of Galicia, Spain, the 2007 M/V Cosco Busan bridge allision in San Francisco Bay and the 2010 Deepwater Horizon debacle in the Gulf of Mexico, among others, demonstrate that any or all of the components of that safety net may come under scrutiny following a marine casualty, possibly leading …

Giving Voice To Rachel Carson: Putting Science Into Environmental Law, William H. Rodgers, Jr.

Articles

Certainly, the most pressing issue of modern times is to develop a body of environmental law (that includes climate change) that is highly responsive to science. Without demeaning the many distinctions between the exercise of science and the practice of law, let me cut to the chase and declare that science is mostly about the “pursuit of truth” and law is mostly about “who wins.” Anybody who doubts this proposition should examine the radical differences between the “Supreme Court of Science” in the United States and the Supreme Court of Law.

The Supreme Court of Science, the National Research Council, …

Serious Flaw Of Employee Invention Ownership Under The Bayh-Dole Act In Stanford V. Roche: Finding The Missing Piece Of The Puzzle In The German Employee Invention Act, Toshiko Takenaka

Articles

This article argues that the current Bayh-Dole Act is incomplete because the Act fails to provide a mechanism for contractors to secure the ownership of federally funded inventions from their employees. Part I of this Article discusses this flaw in the current Bayh-Dole Act, highlighted by Stanford v. Roche, and argues that a historical accident resulted in this flaw due to Congress's failure to pass a series of bills based on the German EIA. Passages in the Bayh-Dole Act suggest that the Act assumes a transfer by operation of law to secure the ownership of federally funded inventions through …

Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans

Articles

This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …

The Training, Appointment, And Supervision Of Islamic Judges In Indonesia, Euis Nurlawlawati, Abdurrahman Rahim

Washington International Law Journal

This essay discusses the creation and training of Islamic court judges in Indonesia. This includes an examination of the qualifications for appointment as a judge, the recruitment of new judges, the pre-appointment and in-service training provided for Islamic judges, and the substantive and administrative supervision of the Islamic judiciary. The paper shows that significant changes have occurred in the system of recruitment and training of Islamic court judges with the establishment of new educational qualifications and the implementation of broader and more systematic training programs. As a result of these changes, the quality, professionalism, and standing of the Islamic judiciary …

The Islamic Legal System In Malaysia, Farid S. Shuaib

Washington International Law Journal

This article describes the historical evolution and the current structure of the Islamic legal system in Malaysia. The structure of the modern Malaysian state has its roots in the region’s colonial history. By the end of the nineteenth century the territory that comprises contemporary Malaysia had been subjected to British colonial authority. The British did not, however, rule the region as a single colonial unit. In the directly ruled colonies most matters were governed by English common law, and while Islamic doctrine governed family law, it was applied by colonial courts that were staffed by British or British-trained judges. In …

Reply Brief For Petitioner. Kloeckner V. Solis, 568 U.S. 41 (2012) (No. 11-184), 2011 U.S. S. Ct. Briefs Lexis 2894, Eric Schnapper, Larry J. Stein, Antony J. Franze, R. Reeves Anderson, R. Stanton Jones

Court Briefs

No abstract provided.

A "Narrow Exception" Run Amok: How Courts Have Misconstrued Employee-Rights Laws' Exclusion Of "Policymaking" Appointees, And A Proposed Framework For Getting Back On Track, Angela Galloway

Washington Law Review

The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee” for its purposes to exclude politicians and certain categories of politicians’ appointees—including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment …

Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, Diane E. Thompson

Washington Law Review

Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications. One reason foreclosures outpace modifications is that the mortgage-modification decision maker’s incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer’s main function is to collect and process payments from …

Rebuttal In Defense Of The Klamath Hydroelectric Settlement Agreement, Michael A. Swiger, Sharon L. White

Washington Journal of Environmental Law & Policy

This article rebuts certain assertions made by Mr. Thomas Schlosser in a recent article entitled Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements. The Klamath hydroelectric dams are not causing degrading fish disease conditions in the Klamath Basin. Dewatering Trust Responsibility overlooks the effects of water diversions for agriculture, pollution from pesticides and industrial operations and habitat degradation from timbering, ranching and other human activities on current Basin conditions. Under the Klamath Hydroelectric Settlement Agreement and the Federal Energy Regulatory Commission license, PacifiCorp is taking extensive measures to protect aquatic resources in the Basin prior to …

Beyond The Blaze: Strategies For Improving Forest Service Fire Suppression Policies, Aurora R. Janke

Washington Journal of Environmental Law & Policy

Current Forest Service fire management policies restrict NEPA’s application to fire suppression actions and contribute to a lack of detailed information about the effectiveness and environmental impact of suppression efforts. Decisions by the U.S. District Court for the District of Montana in the Forest Service for Environmental Ethics v. U.S. Forest Service litigation suggest that NEPA review applies to commonly used fire suppression tactics and that the Forest Service should conduct this review before fires occur. Other recent federal district court decisions and congressional concern with current fire suppression efforts support the need for NEPA review in the fire suppression …

Creating An Environmental No-Man's Land: The Tenth Circuit's Departure From Environmental And Indian Law Protecting A Tribal Community's Health And Environment, Claire R. Newman

Washington Journal of Environmental Law & Policy

When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain “livable environments.” When resource conflicts arise in “checkerboard” areas outside Indian reservations—where land ownership alternates between a tribe, state, the federal government and private, non-Indian landowners—disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies’ trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers Jr., Jason Derosa, Sarah Reyneveld

Washington Journal of Environmental Law & Policy

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

False Valor: Amending The Stolen Valor Act To Conform With The First Amendment's Fraudulent Speech Exception, Jeffery C. Barnum

Washington Law Review

The Stolen Valor Act (SVA or “the Act”) was enacted to protect against “fraudulent claims” of receipt of military honors or decorations. It does so by criminalizing false verbal or written claims regarding such awards. However, the Act failed to include all of the elements of an anti-fraud measure required by the First Amendment. Most critically, the SVA fails to require actual reliance on the part of the defrauded. Although fraud is generally not protected by the First Amendment, courts cannot construe the SVA as an anti-fraud measure if the statute does not require actual reliance. Therefore, the SVA as …

Aedpa's Ratchet: Invoking The Miranda Right To Counsel After The Antiterrorism And Effective Death Penalty Act, David Rubenstein

Washington Law Review

In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an “objectively …

Blindsight: How We See Disabilities In Tort Litigation, Anne Bloom, Paul Steven Miller

Washington Law Review

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely …

Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction To Hear Tribal Banishment Actions, Mary Swift

Washington Law Review

The Indian Civil Rights Act (ICRA or “the Act”) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast …

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

Articles

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …

Petition For A Writ Of Certiorari. Dellinger V. Science Applications International Corp. (No. 11-598), 2011 U.S. S. Ct. Briefs Lexis 2153, Eric Schnapper, Zachary A. Kitts, John J. Rigby

Court Briefs

QUESTIONS PRESENTED (1) Does the anti-retaliation provision in section 15(a)(3) of the Fair Labor Standards Act apply to retaliation by an employer against a job applicant? (2) Is the private cause action provided by section 16(b) of the FLSA available to a job applicant who is retaliated against by an employer?

Uwlaw, Fall 2011, Vol. 64

Alumni Magazines

No abstract provided.

Petition For A Writ Of Certiorari. Opp V. Office Of The State's Attorney Of Cook County, 565 U.S. 815 (2011) (No. 10-1163), 2011 U.S. Lexis 6893, Eric Schnapper, Brian R. Holman, Dennis H. Stefanowicz, Tara Beth Davis, Susan Bogart

Court Briefs

QUESTION PRESENTED Five major federal employment statutes, including in this case the Age Discrimination in Employment Act, exclude certain government workers "at the policymaking level" from the definition of employees protected by those laws. The question presented is: who is a worker "on the policymaking level"?