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Articles 1 - 26 of 26
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
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
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
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. …
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
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 …
Fish As Pollutants: Limitations Of And Crosscurrents In Law, Science, Management, And Policy, Jeremy Firestone, Robert Barber
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
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 …
When Animals Invade And Occupy: Physical Takings And The Endangered Species Act, Rebecca E. Harrison
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 …
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
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' …
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
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 …
Who Owns "The Law"? The Effect On Copyrights When Privately-Authored Works Are Adopted Or Enacted By Reference Into Law, Katie M. Colendich
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 …
Classes, Persons, Equal Protection, And Village Of Willowbrook V. Olech, Robert C. Farrell
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
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 …
Conundrums With Penumbras: The Right To Privacy Encompasses Non-Gamete Providers Who Create Preembryos With The Intent To Become Parents, Lainie M.C. Dillon
Conundrums With Penumbras: The Right To Privacy Encompasses Non-Gamete Providers Who Create Preembryos With The Intent To Become Parents, Lainie M.C. Dillon
Washington Law Review
To date, five state high courts have resolved disputes over frozen preembryos. These disputes arose during divorce proceedings between couples who had previously used assisted reproduction and cryopreserved excess preembryos. In each case, one spouse wished to have the preembryos destroyed, while the other wanted to be able to use or donate them in the future. The parties in these cases invoked the constitutional right to privacy to argue for dispositional control over the preembryos; two of the five cases were resolved by relying on this right. The constitutional right to privacy protects intimate decisions involving procreation, marriage, and family …
What Is The Rule Of Law? Perspectives From Central Europoe And The American Academy, Louis E. Wolcher
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
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
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 …
Does Free Exercise Mean Free State Funding? In Davey V. Locke, The Ninth Circuit Undervalued Washington's Vision Of Religious Liberty, Derek D. Green
Does Free Exercise Mean Free State Funding? In Davey V. Locke, The Ninth Circuit Undervalued Washington's Vision Of Religious Liberty, Derek D. Green
Washington Law Review
In Davey v. Locke, a panel of the United States Court of Appeals for the Ninth Circuit ruled that Washington violated the Free Exercise Clause by refusing to allow a scholarship recipient to use state funds to pursue a theology degree. The court held that the state's scholarship requirements facially discriminated against religion, and that the state's interest in not violating its constitution did not serve as a compelling reason for the discrimination. In so holding, the Davey court ignored Ninth Circuit precedent and embraced a theory of the Religion Clauses at odds with United States Supreme Court jurisprudence. …
Is Assent Still A Prerequisite For Contract Formation In Today's E-Conomy?, Melissa Robertson
Is Assent Still A Prerequisite For Contract Formation In Today's E-Conomy?, Melissa Robertson
Washington Law Review
A browse-wrap agreement is an online contract that governs the use of a Web site but does not require users of the site to affirmatively agree to the terms and conditions of the contract. The terms of a browse-wrap agreement are accessible to the user only by clicking on an Internet link, often inconspicuously located at the bottom of a Web page, marked "Terms and Conditions." Browse-wrap agreements purport to bind users to these terms and conditions when the user merely performs a function of the Web site, such as submitting a query on the site's database or downloading software. …
Researcher Liability For Negligence In Human Subject Research: Informed Consent And Researcher Malpractice Actions, Roger L. Jansson
Researcher Liability For Negligence In Human Subject Research: Informed Consent And Researcher Malpractice Actions, Roger L. Jansson
Washington Law Review
Two sets of federal regulations, the "Common Rule" and Food and Drug Administration (FDA) regulations, govern human subject research that is either federally-funded or involves FDA regulated products. These regulations require, inter alia, that: (1) researchers obtain informed consent from human subjects, and (2) that an Institutional Review Board (IRB) independently review and approve the research protocol. Although the federal regulations do not provide an express cause of action against researchers, research subjects should be able to bring informed consent and malpractice actions against researchers by establishing a duty of care and standard of care. Researchers owe human subjects a …
Back To Prima Paint Corp. V. Flood & Conklin Manufacturing Co.: To Challenge An Arbitration Agreement You Must Challenge The Arbitration Agreement, Andre V. Egle
Washington Law Review
The Federal Arbitration Act (FAA) requires courts to order parties in a dispute arising out of a commercial contract containing an arbitration provision to proceed to arbitration unless the formation or performance of the arbitration agreement itself is at issue. In 1967, the U.S. Supreme Court held in Prima Paint Corp. v. Flood & Conklin Manufacturing Co. that under the FAA, courts, instead of arbitrators, should resolve claims for fraudulent inducement of arbitration agreements. However, courts were not permitted to resolve claims for fraud in the inducement of the underlying commercial contracts. The Court also held that when deciding whether …
So The Army Hired An Ax-Murderer: The Assault And Battery Exception To The Federal Tort Claims Act Does Not Bar Suits For Negligent Hiring, Retention And Supervision, Rebecca L. Andrews
So The Army Hired An Ax-Murderer: The Assault And Battery Exception To The Federal Tort Claims Act Does Not Bar Suits For Negligent Hiring, Retention And Supervision, Rebecca L. Andrews
Washington Law Review
The Federal Tort Claims Act (FTCA) waives the federal government's sovereign immunity as to claims for injuries caused by an act or omission of a government employee within his or her scope of duty. However, this waiver is not absolute and the government has retained immunity for many claims, including those arising out of an assault or battery. The federal circuit courts are split regarding whether this exception applies to claims for the negligent hiring, retention and supervision of federal employees who commit an assault or battery. While the U.S. Supreme Court has left the question unanswered, the Ninth Circuit …
Water, Property, And The Clean Water Act, Janis Snoey
Water, Property, And The Clean Water Act, Janis Snoey
Washington Law Review
In PUD No. I of Pend Oreille County v. Department of Ecology, the Supreme Court of Washington held that Washington State has authority under the Clean Water Act to impose a minimum stream flow requirement on a hydroelectric project seeking to amend its federal license, regardless of whether the flow requirement affects an existing water right. A water right is property protected by the U.S. Constitution's prohibition on taking without just compensation. If a state's imposition of a minimum flow requirement under the Clean Water Act restrains a project from diverting the full quantity of an existing water right, …
Beggars Can't Be Voters: Why Washington's Felon Re-Enfranchisement Law Violates The Equal Protection Clause, Jill E. Simmons
Beggars Can't Be Voters: Why Washington's Felon Re-Enfranchisement Law Violates The Equal Protection Clause, Jill E. Simmons
Washington Law Review
The Washington State Constitution denies persons convicted of felonies the right to vote until their civil rights have been restored. Civil rights are restored when offenders complete all aspects of their sentence, including paying the legal-financial obligations imposed at sentencing. Payment of legal-financial obligations presents a significant hurdle to offenders trying to reclaim their right to vote. According to the Washington Department of Corrections, roughly 46,500 offenders in Washington have not had their right to vote restored solely because of unpaid legal-financial obligations. The right to vote is a fundamental right secured by the United States Constitution, yet the United …
Recognizing The Societal Value In Information Privacy, James P. Nehf
Recognizing The Societal Value In Information Privacy, James P. Nehf
Washington Law Review
Much has been written about database privacy in the Internet Age, most of it critical of the way in which the American legal system addresses the issue. In this article, Professor Nehf maintains that one of the fundamental difficulties with the public policy debates is that information privacy is often discussed as a typical consumer problem rather than a problem of more general societal concern. As a result, arguments over appropriate resolutions reduce to a balancing of individual rights against more general societal interests, such as increased efficiency in law enforcement, government operations or commercial enterprise. Although privacy scholars discussed …
Intergovernmental Cooperation, Metropolitan Equity, And The New Regionalism, Laurie Reynolds
Intergovernmental Cooperation, Metropolitan Equity, And The New Regionalism, Laurie Reynolds
Washington Law Review
The economic gap between affluent suburbia and the urban core has recently received widespread attention among state and local government law scholars. Although the underlying normative arguments rest on very different rationales, scholars with a wide range of doctrinal approaches appear to have formed a consensus that the current concentration of wealth and resources in metropolitan areas is unacceptable. Their common goal of reducing regional disparities has made the scholarly dialogue a dispute over how, rather than whether, to achieve a better distribution. For many of what can be described as the "New Regionalist" scholars, voluntary intergovernmental cooperative efforts may …