Law Commons^™

Too Little Land, Too Many Heirs—The Indian Heirship Land Problem, Ethel J. Williams

Washington Law Review

The poverty of the American Indian has been intensified by a number of long-established federal land policies which have resulted in the progressive fractionation of land ownership so that much Indian land cannot be used effectively. This comment describes the origins and present dimensions of the Indian land heirship problem and the existing laws concerning the devolution of Indian land, and concludes with an analysis of the various statutory solutions which have been proposed to alleviate the problem.

The Shutoff Of Utility Services For Nonpayment: A Plight Of The Poor, David M. Shelton

Washington Law Review

The shutoff of essential utility services for nonpayment causes immeasurable hardship to many poor individuals. This comment examines the existing situation and suggests possible reforms aimed at immediate alleviation of the hardships. The role of the courts and regulatory agencies is examined but the primary focus is on the minimum alteration of existing policies necessary to provide immediate and substantial relief. An insight into the existing shutoff policies of utilities is provided by an appendix summarizing a survey of utility policies through the United States.

Trusts—Rule Against Perpetuities—Cy Pres: Dominant General Testamentary Intent As A Prerequisite To Application—In Re Estate Of Chun Quan Yee Hop, 469 P.2d 183 (Hawaii 1970), Anon

Washington Law Review

Testator provided that a trust "cease and determine upon the death of my wife... or thirty years from the date of my death, whichever shall last occur... ." After finding the provision violative of the Rule Against Perpetuities, the Supreme Court of Hawaii judicially adopted the cy pres (equitable approximation) doctrine to uphold the trust by shortening the period from 30 to 21 years. The court held specifically that "any interest which would violate the Rule Against Perpetuities shall be reformed within the limits of that rule to approximate most closely the intention of the creator of the interest." In …

Taxation—Property—Assessment Of Leasehold Interest In Publicly-Owned Lands For Purposes Of The Ad Valorem Property Tax—Value Not To Be Reduced By The Extent Of Indebtedness.—Pier 67, Inc. V. King County, 78 Wash. Dec. 2d 48, 469 P.2d 902 (1970), Anon

Washington Law Review

Plaintiff, a lessee of state-owned, tax-exempt harbor land, brought an action to recover personal property taxes paid under protest to defendant county Plaintiff contended that defendant county was obliged to follow the long-standing rule that the value of: a leasehold of tax-exempt real property for ad valorem property tax purposes equals its benefits less its burdens, including mortgage indebtedness and rent reserved. The trial.court found for the plaintiff and ordered the leasehold reassessed. The Washington Supreme Court affirmed. The standards used by the defendant county in reassessing the leasehold were then challenged by the plaintiff on substantially the same grounds. …

Labor Relations—Federal Court Injunctions Against Concerted Strike Activity: Norris-Laguardia And Taft-Hartley Accommodated—Boys Markets, Inc. V. Retail Clerk;S Union, Local 770, 398 U.S. 235 (1970), Anon

Washington Law Review

Employer and Union were parties to a collective bargaining agreement in which Union had promised not to strike and each had promised to submit to binding arbitration at the request of the other. A dispute arose, and Union, in spite of the agreement, called a strike and began picketing Employer's building. After attempting unsuccessfully to invoke the grievance and arbitration procedures specified in the agreement, Employer obtained a temporary restraining order forbidding continuation of the strike Union then removed the case to the federal district court and moved to quash the state court's restraining order. Employer, in opposition, moved for …

Constitutional Law—Petty Offender's Right To Demand Trial By Jury: Petty Offenders Have Peers In Alaska—Baker V. City Of Fairbanks, 471 P.2d 386 (Alas. 1970), Anon

Washington Law Review

Procter J. Baker was charged with violation of a Fairbanks ordinance for the offense of assault and demanded a trial by jury in the district court. Baker contended that the holding of the United States Supreme Court in Duncan v. Louisiana was dispositive of his case and that he was entitled to a jury trial as a matter of constitutional right, even though the maximum possible punishment was limited to $600 fine or 60 days imprisonment or both. Upon the trial court's denial of his asserted right, Baker petitioned for direct review by the Alaska Supreme Court. The Alaska court …

Warning: Environmental Law May Be Hazardous To The Environment, Charles B. Roe

Washington Law Review

A book review essay considering Cases and Materials on Environmental Law, by Oscar S. Gray (1970).

Auditors' Third Party Liability: An Ill-Considered Extension Of The Law, Joseph P. Dawson

Washington Law Review

Numerous legal commentators have recently advocated an extension of auditors' professional liability to third-party users of financial statements, with the dual purposes of inducing improved disclosure in financial statements and obtaining restitution for investors injured by misleading statements, and some judicial decisions have adopted such an expanded liability. This comment evaluates the probable effectiveness and effects of such expanded liability, concluding that the expansion is unlikely to obtain either of its stated objectives and that such an expansion is likely to create pressures upon the cost and availability of audits which will be injurious to both investors and users of …

Remedies For Racial Discrimination In Employment: A Comparative Evaluation Of Forums, Cornelius J. Peck

Washington Law Review

Enactment of Title VII of the Civil Rights Act of 1964, with a provision for the awarding of attorneys' fees, opened new opportunities for attorneys in private practice to represent victims of employment discrimination. Within recent years the Act has been predominate in litigation involving racial discriminaton in employment, but imaginative attorneys appealing to innovative courts have used other statutory and common law sources for fashioning relief. The 1866 Civil Rights Act, by analogy to its recent application to discriminatory housing practices, offers an important remedy against racial discrimination to employees. It also promises a protection, not found in Title …

Section 7 Of The Clayton Act As A Tool To Curtail Conglomerate Acquisitions Of Insurance Companies, Roland W. Johnson

Washington Law Review

Mergers of insurance companies with corporations which do not write insurance pose a substantial threat both to competition and to the resource allocating capability of the economy. This comment indicates that an attack on these mergers under the federal anti-trust laws will not be prevented by the McCarran-Ferguson Act. The comment also analyzes the possible application of Section 7 of the Clayton Act to conglomerate insurance mergers and evaluates possible attacks based on the principles covering vertical mergers, transfer of market power, and reciprocity.

Indians—Criminal Procedure: Habeas Corpus As An Enforcement Procedure Under The Indian Civil Rights Act Of 1968, 25 U.S.C. §§ 1302-1303, Anon

Washington Law Review

The Indian Civil Rights Act, Title II of the Civil Rights Act of 1968, extended portions of the Bill of Rights to individual Indians as against their tribal governments and provided federal habeas corpus relief to review alleged violations of these rights. The Indian Bill of Rights marked the culmination of a complete reversal in federal recognition of Indian constitutional rights. Until 1965 federal courts had recognized Indian tribes as quasi-sovereign entities. Individual Indians were guaranteed their constitutional rights in relations with federal and state governments, but not with their tribal governments. The only rights Indian governments recognized when dealing …

Criminal Law—Narcotics—Constructive Possession: Conviction Reversed Where No Positive Showing Of Dominion And Control Over Drugs Or Premises.—State V. Callahan,77 Wash. Dec. 2d 26, 459 P.2d 400 (1969), Anon

Washington Law Review

Defendant Hutchinson was arrested after Seattle police discovered narcotics during a search of a houseboat on which he had been a visitor during the previous two days. The only personal effects of the defendant which were found on the houseboat were two books on drugs, a set of broken scales, and two guns. There was no evidence offered to substantiate a claim that the defendant resided on the houseboat, or that he contributed significantly to its maintenance. No narcotics were found on the defendant's person, although various narcotics were discovered within the defendant's reach on and underneath a desk which …

Constitutional Law—Abortions: Abortion As A Ninth Amendment Right.—Babbitz V. Mccann, 310 F.Supp. 293 (E.D.Wis. 1970), Appeal Dismissed Per Curiam, 91 S. Ct. 12 (1970), Anon

Washington Law Review

Plaintiff, a physician, allegedly performed a "nontherapeutic" abortion upon a woman carrying an unquickened fetus and was subsequently prosecuted under the Wisconsin abortion statute. He brought suit in federal district court to enjoin enforcement of the statute and to obtain a declaratory judgment that the statute was unconstitutional. The injunction was denied, but the declaratory judgment was granted. Held: The state may not deprive a woman of her ninth amendment right to decide whether to carry or reject an unquickened child. Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970), appeal dismissed per curiam, 91 S. Ct. 12 (1970).

Due Process—Administrative Law—Public Assistance: Applicant's Right To A Fair Hearing—Davis V. Toledo Metropolitan Housing Authority, 311 F. Supp. 795 (N.D. Ohio 1970), Anon

Washington Law Review

Plaintiff applied for admission to a low income housing program administered by the Toledo Metropolitan Housing Authority. The Authority's regulation concerning admission to the program provided several standards for determining an applicant's character eligibility. The regulations required that applicants of unqualified character be declared ineligible on the general grounds of "non-desirability." Plaintiff was denied a place on the waiting list for housing program vacancies on those grounds. Her request for the specific facts supporting the Housing Authority's decision was denied, and her appeal for a "fair hearing" to contest the decision was refused. Plaintiff brought suit to enjoin the Housing …

The "Warren Court" And Its Idea Of Progress, Arval A. Morris

Washington Law Review

A book review essay considering The Supreme Court and the Idea of Progress, by Alexander M. Bickel (1970).

Probate In England: A Blueprint For The Future?, Robert L. Fletcher

Washington Law Review

A book review essay considering Probate Can be Quick and Cheap: Trusts and Estates in England, by William F. Fratcher (1968).

Negligence And Liability Without Fault In Tort Law, Cornelius J. Peck

Washington Law Review

Though negligence is emphasized as a basis for determining liability in tort law, Professor Peck points out that liability without fault has always played a major role in that area and, in fact, underlies most torts which are recognized today. After examining these types of torts and distilling some general principles governing the application of liability without fault, he concludes that these principles are also applicable to automobile accident litigation, thus predicting the demise of negligence as a principle of liability in that field.

The Area Of Origin And A Columbia River Diversion, Ralph W. Johnson

Washington Law Review

A major Columbia River water diversion is an option available to meet the future long-range water needs of the rapidly growing but arid Southwest. Without taking a position on the ultimate issue of diversion, Professor Johnson examines numerous precedents and current proposals for protecting the water rights of the area of origin. Since authority for determining whether and on what terms a diversion will take place rests with Congress, the political interests involved in a major diversion project are discussed and proposals are advanced for protecting areas of origin in light of past experience and political reality.

Washington Disinherits The Non-Native Wife, James B. Gilchrist

Washington Law Review

Under Washington law the marital property rights of a couple who moves to Washington are treated differently than those of a native couple. The author traces the source and effects of this practice, examines possible common law solutions, and recommends adoption of a "quasicommunity property" statute, similar to the successful California statute which gives the migratory spouse protection and inheritance tax treatment comparable to that of the native spouse.

Group Insurance: Agency Characterization Of The Master Policy-Holder, Stephen K. Eugster

Washington Law Review

One of the major issues in connection with group life insurance is whether the master policy holder, the person who takes out the insurance, is the agent of the insurance company. This comment describes the general characteristics of group insurance and discusses the factors courts consider in finding an agency relationship between the master policyholder and the insurance company. Arguments are presented that the most equitable results are reached when the insurer is held responsible for the acts of the master policyholder under an agency theory.

Administrative Law—Combination Of Functions: May An Administrative Tribunal Be Both Prosecutor And Judge?—State Ex Rel. Beam V. Fulwiler, 76 Wn.2d 313, 456 P.2d 322 (1969), Anon

Washington Law Review

Respondent Beam was Chief Examiner and Secretary to the Spokane Civil Service Commission. About two years before the instant action, the Commission requested Beam to retire. When he refused, the Commission was instrumental in reducing his pay and in demoting him by creating a position superior to his for another person. Beam successfully brought action to have his duties restored and to set aside the new position created by the Commission. Subsequently, the Commission members investigated Beam's conduct, formed conclusions, promulgated charges, transmitted accusations personally signed by four of the five board members to the City Manager and recommended his …

Creditor-Debtor Law—Wage Garnishment In Washington: A Postscript—Washington's New Garnishment Statute.—Ch. 264, Wash. Laws Of 1969 And Ch. 61, Wash. Laws Of 1970 (Rcw Ch. 7.33), Anon

Washington Law Review

The purpose of this note is to reexamine the practice of wage garnishment in Washington in light of the three major developments in the law since the Empirical Study—the enactment by Congress of the Federal Consumer Credit Protection Act, the enactment by the Washington Legislature of a new garnishment act, and the Supreme Court's decision in Sniadach v. Family Finance Corporation. The major emphasis will be on the Washington Garnishment Act, to determine how it comports with the constitutional restrictions on prejudgment garnishment set forth in Sniadach, and to measure its effectiveness as a remedy for the problems which existed …

Freedom To Hear: A Political Justification Of The First Amendment, John M. Steel

Washington Law Review

Historical analysis of the first amendment reveals that it was adopted primarily to safeguard and promote self-government through the communication of political ideas and attitudes among citizens. The author argues that these political underpinnings support the recognition of a freedom to hear corresponding to the freedoms of speech and press. Implementation of this freedom, recognizing its political basis, would eliminate many infringements on activity the Framers intended to protect. A freedom to hear would also provide a useful analytic tool in alleviating much of the repressive influence on political activity exerted by the private sector.

The Area Of Origin And A Columbia River Diversion, Ralph W. Johnson

Articles

In 1968 Congress declared a ten-year moratorium on any study of diversion of Columbia River water to the Southwest. One of the reasons for the moratorium was to give residents of the Pacific Northwest time to analyze their region's water needs to determine if "surplus" waters are available for export, and to establish, in a broader sense, a regional policy towards diversion proposals.

This article assumes a neutral stance towards the ultimate issue of diversion and attempts only to analyze the problem of protecting the area of origin in the event of a Columbia River to Southwest interbasin water transfer.

The Area Of Origin And A Columbia River Diversion, Ralph W. Johnson

Articles

In 1968 Congress declared a ten-year moratorium on any study of diversion of Columbia River water to the Southwest. One of the reasons for the moratorium was to give residents of the Pacific Northwest time to analyze their region's water needs to determine if "surplus" waters are available for export, and to establish, in a broader sense, a regional policy towards diversion proposals. This article assumes a neutral stance towards the ultimate issue of diversion and attempts only to analyze the problem of protecting the area of origin in the event of a Columbia River to Southwest interbasin water transfer. …

Industrial Water Pollution And The Refuse Act: A Second Chance For Water Quality, William H. Rodgers, Jr.

Articles

The primary purpose of this Article is to encourage a forceful implementation of the Refuse Act as a second chance to achieve water quality. The presentation commences in Section I with a brief outline of the dimensions of industrial water pollution and the legal and scientific barriers to effective control. Against this background, Section II summarizes the central features of the Refuse Act, presents a narrative history of its recent renovation, and analyzes the major issues arising under the statute.

Section III discusses the traditional industrial and governmental view of water pollution and how a change in regulatory attitude invites …

Transfer Of Decedent's Basis At Death: The Allocated Carryover Approach, Rodney J. Waldbaum

Washington Law Review

Congressional dissatisfaction with the effects of IRC 1014(a) which, although death is not treated as a taxable event for income tax purposes, grants a stepped-up basis in inherited property resulting in gains tax forgiveness on appreciated property held at death, has prompted suggested legislation aimed at the at-death taxation as capital gains of all appreciation on property held at death. This comment urges, instead, that the decedent's tax basis in non-cash assets should be carried over to his successors and allocated on the basis of the market value of the transferred assets. The required legislation and mechanics for implementation of …

The Unfinished Business Of The Warren Court, Charles L. Black, Jr.

Washington Law Review

The question we should ask of the Warren Court is not whether it succeeded, but whether we want to make it succeed. With the issue thus defined, Professor Black examines the work of the Warren Court, the foundation it has laid in substance and methodology, and the direction future advocacy must take to secure and enlarge upon those foundations. Professor Black compares the Warren Court favorably to the Marshall Court, noting that where the Marshall Court's unique contribution was defining nationhood, the Warren Court's unique contribution was defining citizenship. He urges strong and continuing advocacy to fulfill the Warren Court's …

Nuisance As A Modern Mode Of Land Use Control, William H. Wilson

Washington Law Review

Recognizing the inflexibility inherent in present zoning mechanisms, this comment analyzes the concept of nuisance as an additional, more versatile means of land use control. In an exhaustive categorization and evaluation of Washington cases and those from other jurisdictions, the author sets forth the principles of nuisance law and the factors affecting court decisions on nuisance. Both private and public actionable nuisances are discussed, along with available remedies, within a concise analytical framework.

Condominiums In Washington, Jerry W. Spoonamoore

Washington Law Review

The development of the condominium concept is a direct response to the problems of urbanization, increased costs of land ownership and the necessity of utilizing the diminishing resource of land in an efficient fashion. This comment surveys problems of management, taxation, financing, liability and insurance, and the relationship of these problem areas to Washington's 1963 Horizontal Property Regimes Act. The author concludes that, though the ramifications of the Act have not as yet been tested in the courts, and though the task of drafting condomium documents is made difficult by significant areas of uncertainty in the law, hazards can be …