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Articles 1021 - 1050 of 3365
Full-Text Articles in Law
Strict Compliance With Marine Insurance Contracts: Conflicting Rules In The Ninth Circuit, Rhea D. Pappas-Ward
Strict Compliance With Marine Insurance Contracts: Conflicting Rules In The Ninth Circuit, Rhea D. Pappas-Ward
Washington Law Review
Under the federal admiralty "strict compliance rule," a policy of marine insurance is voided by an insured vessel owner's failure to comply with express policy terms or "warranties." Although recognized and applied by a majority of the federal circuits, the strict compliance rule has been improperly ignored by a handful of district courts within the Ninth Circuit. Instead, by misapplying the holding of Wilburn Boat v. Fireman's Fund Insurance Co., a 1955 Supreme Court case, and by ignoring the Ninth Circuit's interpretation of Wilburn Boat in Bohemia, Inc. v. Home Insurance Co., these district courts have turned to …
Enough Is Enough: Pre Se Constructive Discharge For Victims Of Sexually Hostile Work Environments Under Title Vii, Sarah H. Perry
Enough Is Enough: Pre Se Constructive Discharge For Victims Of Sexually Hostile Work Environments Under Title Vii, Sarah H. Perry
Washington Law Review
In Title VII sexual harassment cases based on hostile work environments, application of the constructive discharge doctrine imposes unfair burdens on claimants. A finding of constructive discharge requires a greater severity or pervasiveness of harassment than that required for finding a hostile work environment. This forces many hostile environment victims to remain in abusive and intolerable conditions because they cannot afford to resign. Unless found constructively discharged by their employers, victims who quit their jobs cannot recover back pay for the period between resignation and judgment. The incorrect and inconsistent application of the constructive discharge doctrine in sexually hostile environment …
Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway
Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway
Washington Law Review
Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes …
Bravo V. Dolsen Cos.: Shoring Up Employer Bargaining Power By Sandbagging Nonunion Workers, Peter B. Gonick
Bravo V. Dolsen Cos.: Shoring Up Employer Bargaining Power By Sandbagging Nonunion Workers, Peter B. Gonick
Washington Law Review
In Bravo v. Dolsen Cos., the Washington Court of Appeals held that the public policy provision of Washington's little Norris-LaGuardia Act applied only in cases involving union activity, thus depriving nonunion workers of protection from discharge for engaging in concerted activities. This Note argues that the court misconstrued both the public policy provision and Washington case law to reach a result contrary to sound labor policy and federal interpretations of a similar act. It suggests an alternative interpretation of the public policy provision that provides adequate protection for workers to engage in concerted activities.
Burdening The Plaintiff: Proving Employment Discrimination After Kastanis V. Educational Employees Credit Union, Andrea J. Menaker
Burdening The Plaintiff: Proving Employment Discrimination After Kastanis V. Educational Employees Credit Union, Andrea J. Menaker
Washington Law Review
In Kastanis v. Educational Employees Credit Union, the Washington Supreme Court held that a plaintiff who presents direct, undisputed evidence of discrimination bears the burden of persuading the jury that the employer's actions were not justified by business necessity. By substantially increasing the plaintiff's burden, this decision will make it more difficult for plaintiffs to successfully litigate employment discrimination claims in Washington State. Not only is the court's reasoning contrary to existing state and federal law, but there are also strong policy reasons arguing against the continued application of the court's rule.
Cornering The Quark: Investment-Backed Expectations And Economically Viable Uses In Takings Analysis, Lynda J. Oswald
Cornering The Quark: Investment-Backed Expectations And Economically Viable Uses In Takings Analysis, Lynda J. Oswald
Washington Law Review
Although stressing the "ad hoc, factual" nature of regulatory takings analysis, the United States Supreme Court has, over time, elevated the prominence of two economic tests in its analysis. In this Article, the author criticizes the importance placed on the tests and argues that the validity of a regulation must be determined based on the legitimacy of the governmental objective and the relationship between that objective and the challenged regulation, and not on the economic impact of the regulation on the property owner. The author rejects the notion that exercises of the eminent domain power and valid exercises of the …
His And Her Tort Reform: Gender Injustice In Disguise, Thomas Koenig, Michael Rustad
His And Her Tort Reform: Gender Injustice In Disguise, Thomas Koenig, Michael Rustad
Washington Law Review
This Article is an inquiry into the gendered nature of tort remedies. Modem tort law provides increased protection for injuries suffered by women. Drawing upon a national study of punitive damages in products liability and medical malpractice, Professors Koenig and Rustad argue that tort remedies are bifurcated into "his" and "her" tort worlds based upon gender roles. Nearly half of the punitive damages verdicts awarded to women stemmed from injuries caused by household consumer products and dangerously defective drugs or medical devices. In contrast, the punitive damages awarded to males arose from accidents involving industrial and farm machinery, asbestos, chemicals, …
Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion
Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion
Washington Law Review
In federal courts, Federal Rule of Evidence 501 governs all privileges, including the psychotherapist-patient privilege. Unlike many state statutes that explicitly recognize the psychotherapist-patient privilege and define its scope through exceptions, Rule 501 merely directs courts to use their reason and experience to interpret common law principles. Under this vague standard, the federal circuits lack uniformity in their treatment of the psychotherapist-patient privilege. This Comment suggests that Congress should explicitly recognize the privilege and define its scope through exceptions. To support this conclusion, this Comment discusses the justifications for recognizing a psychotherapist-patient privilege, uses the paradigm of formal versus nonformal …
Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan
Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan
Washington Law Review
There is pressure in Washington to abolish the forfeiture remedy from real estate contracts. Eliminating forfeiture would cripple the real estate contract and thus provide a disincentive for sellers to finance sales of their property. This result would be economically unsound and in conflict with the public policy in favor of promoting home ownership. Instead of abolishing forfeiture, the Washington State Legislature should amend current legislation to provide a more sensible and certain forfeiture remedy.
Preventing Bidding Wars In Washington Adoptions: The Need For Statutory Reform After In Re Dependency Of G.C.B., Shannon E. Phillips
Preventing Bidding Wars In Washington Adoptions: The Need For Statutory Reform After In Re Dependency Of G.C.B., Shannon E. Phillips
Washington Law Review
In In re Dependency of G.C.B., a Washington court of appeals held that an individual whose parental relationship was involuntarily terminated under the dependency statute lacks standing to later petition to adopt that same child. This Note argues that the Washington adoption statute would not necessarily prevent an equivocating parent who voluntarily relinquished her child from attempting to undo the finality of termination by later seeking to adopt. Nor does the statute effectively limit who can petition to adopt a child to individuals who have been chosen by the child's custodian or who have had the child placed with them. …
Easements By Necessity: A Threshold For Inholder Access Rights Under The Alaska National Interest Lands Conservation Act, Galen G.B. Schuler
Easements By Necessity: A Threshold For Inholder Access Rights Under The Alaska National Interest Lands Conservation Act, Galen G.B. Schuler
Washington Law Review
Nineteenth Century federal land grants created a legacy of private lands surrounded by federal land in the American West. Owners of such lands (inholders) were routinely granted access across federal land by implicit common law rights until the 1960s when federal land policy became more restrictive. In 1981, the Ninth Circuit held that the Alaska National Interest Lands Conservation Act (ANILCA) provided a statutory entitlement for inholder access. Since then, the Ninth Circuit also has held that ANILCA preempts any common law access rights. This Comment argues that the common law doctrine of easements by necessity remains a threshold basis …
Reentering The Golden Door: Waiving Good-Bye To Exclusion Grounds For Permanent Resident Aliens, William Mckay Bennett
Reentering The Golden Door: Waiving Good-Bye To Exclusion Grounds For Permanent Resident Aliens, William Mckay Bennett
Washington Law Review
Under the exclusion provisions of the Immigration and Nationality Act (INA), an alien admitted to the United States for permanent residence can be prohibited from reentering the United States after a trip out of the country. Because exclusion grounds differ from deportation grounds, permanent resident aliens who are not deportable could leave the country and find themselves excluded at the border upon return. The INA provides relief in such cases by allowing permanent resident aliens who have lived in the United States for over seven years to apply for a discretionary waiver of exclusion grounds under INA § 212(c). In …
The White Plague Returns: Law And The New Tuberculosis, Kollin K. Min
The White Plague Returns: Law And The New Tuberculosis, Kollin K. Min
Washington Law Review
Tuberculosis (TB) rates in the United States have increased dramatically over the past decade. The most disturbing aspect of the disease's resurgence is the rising prevalence of multidrug-resistant tuberculosis (MDR-TB), which is frequently fatal and is far more difficult to treat than conventional TB. To combat the spread of the disease, state legislatures throughout the country are rewriting outdated tuberculosis control laws. Many public health officials have suggested that in order to control MDR-TB effectively, modem TB statutes must grant the state the ability to detain even non-infectious patients who may develop MDR-TB in the future. This Comment examines the …
Mission Revival Jurisprudence: State Courts And Hispanic Water Law Since 1850, Peter L. Reich
Mission Revival Jurisprudence: State Courts And Hispanic Water Law Since 1850, Peter L. Reich
Washington Law Review
In this Article, the author argues that after the United States' annexation of the Southwest, state judges in California, New Mexico, and Texas knowingly distorted the communal nature of applicable Spanish and Mexican water law. While previous scholars have acknowledged that courts misinterpreted municipal and riparian water rights originating in the Southwest's Hispanic period, most historians have attributed the distortion to ignorance rather than design. Using archival sources, the author demonstrates that American judges created an historical fiction of "Spanish" absolute water control, and intentionally disregarded actual law and custom dictating water apportionment. The resulting doctrines of pueblo water rights …
Simas V. Quaker Fabric Corp.: Erisa Preemption Of Statutory Tin Parachutes, Kristin D. Anger
Simas V. Quaker Fabric Corp.: Erisa Preemption Of Statutory Tin Parachutes, Kristin D. Anger
Washington Law Review
In Simas v. Quaker Fabric Corp., the First Circuit invalidated Massachusetts's innovative tin parachute statute, designed to assist workers displaced by corporate takeovers, by finding it preempted by ERISA. After examining the relationship between the tin parachute and ERISA and the analysis in Simas, this Note argues that preemption was mandated neither by ERISA itself nor by decisions interpreting its preemptive reach. In light of the state interest at stake, the Simas decision is unfortunate and suggests the need for a legislative solution.
Corporate Versus Contractual Mutual Funds: An Evaluation Of Structure And Governance, Wallace Wen Yeu Wang
Corporate Versus Contractual Mutual Funds: An Evaluation Of Structure And Governance, Wallace Wen Yeu Wang
Washington Law Review
This Article develops an analytic framework to evaluate the comparative merits of the structure and governance of the two dominant types of mutual funds—the Corporate Fund (the U.S. model) and the Contractual Fund (the German, Japanese and British models). The former is characterized by centralized decision-making functions, while the latter employs a more decentralized structure. The semi-hierarchical structure of the Corporate Fund leads to significant transaction costs such as influence, intervention and collective decision-making costs. Specifically, the board of directors is not effective in negotiating performance-related terms (e.g., fees), and shareholder suits based on fiduciary duties do not adequately address …
Gilding The Iron Rice Bowl: The Illusion Of Shareholder Rights In China, Matthew D. Latimer
Gilding The Iron Rice Bowl: The Illusion Of Shareholder Rights In China, Matthew D. Latimer
Washington Law Review
In the late 1970s, the People's Republic of China (P.R.C.) embarked upon a program of economic reform that has resulted in the issuance of equity securities in previously state-owned enterprises. with the recent advent of national stockmarkets, national securities legislation is emerging to supplement and further define prior local-level regulation. Despite these new laws, however, private investors still lack many of the protections enjoyed by investors in Western financial markets. This Comment examines these disparities and suggests that non-state investors in China's nascent financial markets still lack an effective means of overseeing the policy decisions of State-owned corporations and face …
In Re Marriage Of Mcdole: Modifying Child Custody By Ignoring Statutory Grounds, Virginia A. Petersen
In Re Marriage Of Mcdole: Modifying Child Custody By Ignoring Statutory Grounds, Virginia A. Petersen
Washington Law Review
In In re Marriage of McDole, the Washington Supreme Court upheld the modification of a parenting plan that changed the primary residential parent. By relying in part on the mother's interference with visitation, the court not only undermined the important policy underlying the modification statute of maximizing finality in custody determinations, but it also failed to read the modification statute as a whole. The court also inappropriately relied on the mother's move out of the state and continued conflict between the parents. The court further failed to explicitly explain the legal bases for its decision, providing little guidance for future …
Causation And Injury In Corporate Control Transactions: Cede & Co. V. Technicolor, Inc., Jacqueline M. Veneziani
Causation And Injury In Corporate Control Transactions: Cede & Co. V. Technicolor, Inc., Jacqueline M. Veneziani
Washington Law Review
In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court held that shareholders are not required to prove injury from corporate directors' failure to exercise due care in approving a merger transaction. Tort principles, the court stated, have no role in a business judgment rule analysis. Therefore, once shareholders prove a violation of the directors' duty of care, the burden is shifted to the directors to prove the entire fairness of the transaction despite the absence of a breach of the duty of loyalty. This Note argues that the entire fairness review of a disinterested board transaction is unworkable. …
Another "Postscript" To "The Growing Disjunction Between Legal Education And The Legal Profession", Harry T. Edwards
Another "Postscript" To "The Growing Disjunction Between Legal Education And The Legal Profession", Harry T. Edwards
Washington Law Review
"The Gap Between Legal Education and the Needs of the Profession," the subject of this symposium, is a matter about which I have had much to say over the past two years. In the October 1992 edition of the Michigan Law Review, I expressed my deep concern about "the growing disjunction between legal education and the legal profession," in an article with the same title.
Education For A Public Calling In The 21st Century, Phoebe A. Haddon
Education For A Public Calling In The 21st Century, Phoebe A. Haddon
Washington Law Review
A decade ago, an issue of the Association of American Law Schools' Journal of Legal Education was devoted to ruminations on selecting lawyers for the twenty-first century. Although some of the papers in the Journal issue offered congratulatory messages to legal educators and the Law School Admissions Council for their work, others more critically assessed legal education and the admissions process, warning of an impending "mid-life crisis" caused in part by an unreflective period of maturation. Focusing on two decades of "applicant explosion," affording the conscious creation of "a more intellectually elite profession,"' a number of the authors who submitted …
"Sexual Motivation" After State V. Halstien: Still Hazy For His Teenage Peers, Robert E. Lipscomb
"Sexual Motivation" After State V. Halstien: Still Hazy For His Teenage Peers, Robert E. Lipscomb
Washington Law Review
In State v. Halstien, the Washington Supreme Court upheld the constitutionality of a juvenile statute that provides for a charge of sexual motivation in offenses other than sex offenses. Such motivation, if proven, becomes an aggravating factor that a judge may consider (along with any mitigating factors) in sentencing. In rejecting the argument that the statute was void for vagueness, the court should have clarified the statute by requiring a finding that the defendant manifested a sexual disorder, as well as a finding that sexual motivation was a substantial factor in the offense.
Narrowing The Gap By Narrowing The Field: What's Missing From The Maccrate Report—Of Skills, Legal Science And Being A Human Being, Carrie Menkel-Meadow
Narrowing The Gap By Narrowing The Field: What's Missing From The Maccrate Report—Of Skills, Legal Science And Being A Human Being, Carrie Menkel-Meadow
Washington Law Review
I come here today, not to bury the MacCrate Report, but to criticize it, not for what it includes, although that is part of my critique, but for what it leaves out. I also want to situate my critique in the contentious intellectual history of legal education and legal scholarship, that, in my view, has too long polarized both the intellectual value and rigor of "law" (conceived of either as doctrine or theory) and "skills" (those nasty things that real lawyers have to do to express "the law" and represent clients). Among the most recent entries to this debate is …
Introduction: The Maccrate Report—Heuristic Or Prescriptive?, Wallace Loh
Introduction: The Maccrate Report—Heuristic Or Prescriptive?, Wallace Loh
Washington Law Review
There is a freight train gathering speed on the tracks of legal education, and it is called SSV—Statement of Skills and Values. This SSV stands as the centerpiece of the Report of the ABA Task Force on Law Schools and the Profession: Narrowing the Gap, better known as the MacCrate Report, named after its chair, Robert MacCrate. The MacCrate Report has ignited a rational debate on curricular reform that is becoming increasingly intense. Viewed broadly, SSV may represent the greatest proposed paradigm shift in legal education since Langdell envisioned legal education as the pursuit of legal science through the case …
Keynote Address—The 21st Century Lawyer: Is There A Gap To Be Narrowed?, Robert Maccrate
Keynote Address—The 21st Century Lawyer: Is There A Gap To Be Narrowed?, Robert Maccrate
Washington Law Review
This law school symposium on the Twenty-First Century Lawyer reflects a fundamental shift in the focus of legal education within the academy—from law in the abstract toward the reality of law in the daily work of lawyers. While holding firm to their scholarly mission, law schools are giving increasing attention to the world of lawyer performance and the needs of their students to be prepared to participate effectively in the legal profession. The 1992 Report entitled Legal Education and Professional Development-An Educational Continuum, by a task force of the American Bar Association Section of Legal Education and Admissions to the …
Lost And Foundry: Forging A New Approach To Patent Licensing Agreements, Lawrence D. Graham
Lost And Foundry: Forging A New Approach To Patent Licensing Agreements, Lawrence D. Graham
Washington Law Review
The Federal Circuit has been inconsistent in its treatment of patent licensing agreements held by foundries. Recently, the Federal Circuit held that a foundry contract is a sale of goods that severs the right of the patentee with respect to the buyer under the patent exhaustion doctrine. In addition, it held that the applicable license would be construed to allow foundry rights unless the patentee could prove otherwise. This Note analyzes a string of Federal Circuit cases involving foundries and patent licenses. It concludes that a foundry contract should be viewed as a sale of services rather than a sale …
Somewhere Farther Down The Line: Maccrate On Multiculturalism And The Information Age, Burnele V. Powell
Somewhere Farther Down The Line: Maccrate On Multiculturalism And The Information Age, Burnele V. Powell
Washington Law Review
A couple of months ago, sometime after I was invited by Symposium Editor Ruth Kennedy to participate in today's discussion, I got a telephone call from her. She wanted to know the title of my remarks. I, of course, had no idea, what I would entitle these remarks because I was still freshly in the throes of trying to write these remarks. Only moments before the phone rang, I had been preoccupied with several CDs that I had recently purchased and was thinking about the task ahead of me. It did occur to me, however, that there was something I …
Fisons: Will It Tame The Beast Of Discovery Abuse?, Barbara J. Gorham
Fisons: Will It Tame The Beast Of Discovery Abuse?, Barbara J. Gorham
Washington Law Review
In WSPIEA v. Fisons, the Washington Supreme Court held that evasive and misleading discovery tactics violate Civil Rule 26(g). This Note examines the discovery tactics used in Fisons against the backdrop of the historic failure of courts to impose adequate sanctions for discovery abuse. It argues that courts must do more to deter discovery abuse by clearly articulating the requirements of the rules governing discovery, imposing severe sanctions for discovery abuse, and closely monitoring discovery in large, complex cases.
On Teaching Professional Judgment, Paul Brest, Linda Krieger
On Teaching Professional Judgment, Paul Brest, Linda Krieger
Washington Law Review
To answer the question posed by the conveners of this symposium, of course there is a gap between legal education and the legal profession. There has always been one, and quite possibly it has widened somewhat in recent years, if for no other reason than that the world in which lawyers practice has changed so much while legal education has changed relatively little. The external changes include the internationalization of legal transactions, the centrality of technology to many aspects of practice, increased specialization driven by the proliferation and complexity of statutory and regulatory schemes, and the overloading of traditional systems …
From Sink Or Swim To The Apprenticeship: Choices For Lawyer Training, Lucy Isaki
From Sink Or Swim To The Apprenticeship: Choices For Lawyer Training, Lucy Isaki
Washington Law Review
Our symposium today asks the question: Is there a gap in lawyer training to be narrowed? My answer is: Probably. Is it any greater than the gap that existed twenty or thirty years ago? I think not. Law schools are graduating women and men well prepared to begin the practice of law. True, there is much that new law school graduates do not yet know. But in a short time—two to three years—most new law graduates gain the skills and substantive knowledge needed to be successful.