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Articles 1111 - 1140 of 3365
Full-Text Articles in Law
Protecting Donar Privacy In Aids Related Blood Bank Litigation—Doe V. Puget Sound Blood Center, 117 Wash. 2d 772, 819 P.2d 370 (1991), Anne Marie Logerfo
Protecting Donar Privacy In Aids Related Blood Bank Litigation—Doe V. Puget Sound Blood Center, 117 Wash. 2d 772, 819 P.2d 370 (1991), Anne Marie Logerfo
Washington Law Review
One controversial issue in blood bank AIDS litigation is whether courts should permit infected plaintiffs to conduct discovery of information about the blood donor who contributed the contaminated blood. Many courts have taken a reasonable middle ground by allowing limited discovery of a blood donor provided that the donor's identity remains confidential. In a recent case, the Washington Supreme Court provided no such limitation on blood donor discovery. This Note argues that the court's decision infringes on the significant privacy interests of the blood donor and violates the public's interest in an adequate blood supply while providing little or no …
Modern Media And The First Amendment: Rediscovering Freedom Of The Press, Donald E. Lively
Modern Media And The First Amendment: Rediscovering Freedom Of The Press, Donald E. Lively
Washington Law Review
Freedom of the press, like other constitutional guarantees is not an absolute. Nor does it have the same meaning for all media. For more than a century after the constitution was framed and ratified, the press was coextensive with publishing. Over the course of the twentieth century, electronic media have emerged and extended the contours of the press. At the same time, however, liberty of the press has developed in idiosyncratic terms that have fostered a First Amendment hierarchy. While print media continue to be afforded maximum constitutional security, newer communications methodologies have been more susceptible to official management and …
Leaving Your Speech Rights At The Bar—Gentile V. State Bar, 111 S. Ct. 2720 (1991), Lester Porter Jr.
Leaving Your Speech Rights At The Bar—Gentile V. State Bar, 111 S. Ct. 2720 (1991), Lester Porter Jr.
Washington Law Review
In Gentile v. State Bar the Supreme Court voided an attorney disciplinary rule regulating trial publicity for vagueness. The Court, however, upheld the substantive standard employed by the rule to identify dangerous speech. This standard restricts more attorney comments to the media than the Court has allowed for the press or public. This Note argues that the standard upheld in Gentile fails First Amendment scrutiny and proposes a response for states reviewing their professional disciplinary rules in light of Gentile. Adoption of this proposal will mitigate the danger of prejudicial trial publicity while recognizing the benefits of attorney publicity.
The Right To Pension Benefits Under Erisa When A Nonemployee Spouse Predeceases The Employee Spouse, Stacy Lynn Anderson
The Right To Pension Benefits Under Erisa When A Nonemployee Spouse Predeceases The Employee Spouse, Stacy Lynn Anderson
Washington Law Review
Under the Employee Retirement Income Security Act, retirement benefits cannot be assigned or alienated. In 1984, Congress enacted the Retirement Equity Act (REA) which allowed retirement benefits to be divided between former spouses upon divorce, under a qualified domestic relations order (QDRO). It is unclear whether the restriction on alienation of benefits extended to a transfer of the interests of a nonemployee spouse who predeceases the employee spouse, and if so, whether such a disposition is within the QDRO exception. In a two-to-one decision in Ablamis v. Roper, the Ninth Circuit held that the exception did not extend to such …
Speak Of The Missing Witness, And Surely He Shall Appear: The Missing Witness Doctrine And The Constitutional Rights Of Criminal Defendants—State V. Blair, 117 Wash. 2d 479, 816 P.2d 718 (1991), Carl T. Edwards
Washington Law Review
In State v. Blair, the Washington Supreme Court held for the first time that the state may use the missing witness doctrine against criminal defendants. Under the missing witness doctrine, which provides a permissive inference based on a defendant's failure to present available witnesses, prosecutors may now argue that a defendant failed to call certain witnesses because the defendant feared that their testimony would have been incriminating. This Note examines the court's decision in State v. Blair, the formulation of the missing witness doctrine adopted by the court, and the common law origins of the missing witness doctrine. This Note …
The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal
The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal
Washington Law Review
The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential future developments of …
The Duty To Serve And Protect: 42 U.S.C. § 1983 And Police Officers' Liability Following Roadside Abandonment, Michael R. Gotham
The Duty To Serve And Protect: 42 U.S.C. § 1983 And Police Officers' Liability Following Roadside Abandonment, Michael R. Gotham
Washington Law Review
Courts disagree about whether an individual has a cause of action against a police officer under 42 U.S.C. § 1983 when that officer abandoned the individual in a dangerous environment following a traffic stop. Courts have not uniformly recognized an individual's right to personal security in roadside abandonment cases as fundamental and protected by the Fourteenth Amendment. Also, courts have required plaintiffs in these cases to show that an asserted right was clearly established at the time the officer acted in order to overcome the officer's qualified immunity defense. This requirement often bars plaintiffs from recovering under section 1983. This …
A Frequent Recurrence To Fundamental Principles: Individual Rights, Free Government, And The Washington State Constitution, Brian Snure
Washington Law Review
Article 1, section 32, of the Washington State Constitution provides for a "recurrence to fundamental principles" as a means of protecting individual rights and free government. Since the adoption of the constitution in 1889, section 32 has been used infrequently by Washington's legal community. This Comment examines the role of section 32 in constitutional analysis by distilling four fundamental principles from the structure of the state constitution and the historical and legal environment existing in 1889. From these principles, this Comment concludes that the framers of the Washington Constitution intended that section 32 be used to expand the scope of …
Mandatory Life Sentence Without Parole Found Constitutionally Permissble For Cocaine Possession—Harmelin V. Michigan, 111 S. Ct. 2680 (1991), Andrew H. Mun
Washington Law Review
In Harmelin v. Michigan, the United States Supreme Court held (5-4) that a legislatively-mandated life sentence without parole for possession of 672.5 grams of cocaine did not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. In reaching the result, two Justices abrogated the proportionality principle in the Eighth Amendment and three Justices abridged the proportionality standard promulgated in Solem v. Helm. This Note examines the Harmelin decision and suggests that the Court does not adequately justify abrogating or limiting the Solem proportionality standard. This Note recommends application of the Solem proportionality standard and concludes that imposition of …
Confidentially Speaking: Protecting The Press From Liability For Broken Confidentiality Promises—Cohen V. Cowles Media Co., 111 S. Ct. 2513 (1991), Jeffrey A. Richards
Confidentially Speaking: Protecting The Press From Liability For Broken Confidentiality Promises—Cohen V. Cowles Media Co., 111 S. Ct. 2513 (1991), Jeffrey A. Richards
Washington Law Review
In Cohen v. Cowles Media Co., the Supreme Court held that the First Amendment does not bar suits against newspapers for breaches of confidentiality promises. By following its cases holding that the press is subject to neutral laws, the Court ignored its precedent mandating that state laws inhibiting publication violate the First Amendment absent a compelling state interest. This Note explores both lines of cases and concludes that application of a state law that inhibits publication is unconstitutional if its utility in effecting a legitimate state interest is outweighed by the public's interest in receiving the information. Therefore, courts should …
Reinvigorating Educational Malpractice Claims: A Representational Focus, John G. Culhane
Reinvigorating Educational Malpractice Claims: A Representational Focus, John G. Culhane
Washington Law Review
For the past twenty tears, courts have faced a wide array of claims alleging misconduct by schools and their officials. These claims have involved diverse injuries, including: negligence in permitting functional illiterates to pass through the school system; negligent misdiagnosis of learning disabilities; and failure to deliver a promised package of educational skills and services. The judiciary has almost uniformly refused to allow recovery, in tort or otherwise, for such injuries. Some courts have conceded that, on the pleadings, a good case might be made out. Plaintiffs have nonetheless been turned away because of courts' related concerns with untrammeled litigation …
Jury Instructions On Joint And Several Liability In Washington State, Julie K. Weaver
Jury Instructions On Joint And Several Liability In Washington State, Julie K. Weaver
Washington Law Review
Neither the Washington Legislature nor the Washington Supreme Court has addressed the issue of instructing a jury on Washington's doctrine of modified joint and several liability and its effects. Historically, most states prevented courts from instructing juries on the effects of their answers to special verdicts. Washington, however, has no history of keeping a jury uninformed of the effects of its answers. This Comment concludes that Washington courts should continue the practice of informing juries of the effects of their answers and instruct juries on joint and several liability and its effects.
Municipal Antitrust Immunity After City Of Columbia V. Omni Outdoor Advertising, Inc., 111 S. Ct. 1344 (1991), Brent S. Kinkade
Municipal Antitrust Immunity After City Of Columbia V. Omni Outdoor Advertising, Inc., 111 S. Ct. 1344 (1991), Brent S. Kinkade
Washington Law Review
For most of this century, states and municipalities were immune from liability for anticompetitive action. However, in City of Lafayette v. Louisiana Power & Light Co., the Supreme Court sharply limited antitrust immunity for municipalities. The Lafayette Court held that municipal immunity only applied to municipalities following a clearly articulated state policy. In City of Columbia v. Omni Outdoor Advertising, Inc, the Supreme Court has expanded the immunity available to municipalities by requiring only that a municipality's actions be a foreseeable result of a specific grant of state authority. This Note examines the history of municipal immunity and the Omni …
Abusive Discretion: Discretionary And Supplemental Trusts Created In Settlement Of Personal Injury Claims, Brad Jones Berkness
Abusive Discretion: Discretionary And Supplemental Trusts Created In Settlement Of Personal Injury Claims, Brad Jones Berkness
Washington Law Review
Discretionary and supplemental trusts are often created in settlement of personal injury lawsuits to shield the settlement proceeds from the beneficiary's care-provider's claims. Washington courts provide no clear direction on creditor access to such trusts. This Comment argues for a legislative provision in Washington that makes these trusts accessible to creditors who provide necessities to an injured party. This Comment argues for allowing access regardless of any discretion or supplemental support language in the trust, because these trusts are self-settled and violate public policy.
Equity Renewed: Preliminary Injunctions To Secure Potential Money Judgments, Rhonda Wasserman
Equity Renewed: Preliminary Injunctions To Secure Potential Money Judgments, Rhonda Wasserman
Washington Law Review
Whenever a plaintiff sues a defendant for money damages, she runs the risk that the defendant will attempt to render herself unable to satisfy the expected money judgment by hiding or dissipating assets. Although most states have statutes that authorize prejudgment attachment of the defendant's assets to prevent this result, the attachment statutes are poorly designed to reduce the plaintiff's risk. The attachment statutes are both under- and over-inclusive: they do not authorize the attachment of property located outside the state, thereby failing to prevent the dissipation of all of the defendant's property, yet they grant the plaintiff a lien …
Congressional Term Limits: Unconstitutional By Initiative, Brendan Barnicle
Congressional Term Limits: Unconstitutional By Initiative, Brendan Barnicle
Washington Law Review
Numerous states are considering voters' initiatives limiting the terms of their congressional delegations. This Comment analyzes the constitutionality of these measures and concludes that congressional term limits are unconstitutional when enacted through voters' initiatives, but may be properly enacted through a federal constitutional amendment. Moreover, imposing term limits at all, regardless of their implementation, appears inconsistent with original intent of the Constitution's framers. Finally, previous amendments used to implement changes to the electoral process, and judicial decisions on such proposed changes, suggest that changes such as term limits must be enacted by constitutional amendment.
Tribal Businesses And The Uncertain Reach Of Tribal Sovereign Immunity: A Statutory Solution, Steve E. Dietrich
Tribal Businesses And The Uncertain Reach Of Tribal Sovereign Immunity: A Statutory Solution, Steve E. Dietrich
Washington Law Review
The effect of tribal sovereign immunity on business transactions is difficult to predict, despite the doctrine's often dramatic importance. Unlike the sovereign immunities of state, federal, and foreign governments, the scope of tribal immunity is not defined by statute. Some courts have applied the doctrine in a manner that is contrary to federal Indian law and policy. The resulting unpredictability hampers tribal economic development. This Comment proposes a federal tribal immunity statute that would affirm the general principles of the common law and explicitly immunize all entirely tribal-owned enterprises whether operating on- or off-reservation.
Forum Selection Agreements In The Federal Courts After Carnival Cruise: A Proposal For Congressional Reform, Patrick J. Borchers
Forum Selection Agreements In The Federal Courts After Carnival Cruise: A Proposal For Congressional Reform, Patrick J. Borchers
Washington Law Review
Once the object of American judicial loathing, forum selection agreements recently have enjoyed a far more favored status. Forum selection agreements promote certainty in commercial relationships and reduce transaction costs arising from litigation of threshold issues such as personal jurisdiction and venue. In 1988, in Stewart Organization, Inc. v. Ricoh, the Supreme Court confused several central issues, including whether state or federal law governs enforcement in diversity actions, the mechanism for enforcing forum selection agreements, and the consequences of seeking to enforce an agreement by transferring the matter from one federal court to another. More recently, in Carnival Cruise Lines, …
Where Do The Buffalo Roam? Determining The Scope Of American Indian Off-Reservation Hunting Rights In The Pacific Northwest, Bradley I. Nye
Where Do The Buffalo Roam? Determining The Scope Of American Indian Off-Reservation Hunting Rights In The Pacific Northwest, Bradley I. Nye
Washington Law Review
Courts have failed to develop a uniform test to determine the extent of Indian off-reservation hunting rights in the Pacific Northwest. Though the language guaranteeing these rights is consistent from treaty to treaty, analysis of this language varies widely from court to court. The United States Supreme Court employs three well-founded canons of construction in its interpretations of Indian treaties. These same principles should be applied by lower courts to determine the extent of off-reservation hunting rights. Consistent use of accepted canons of treaty construction would add much certainty to an area of law plagued by uncertainty and controversy.
When Rape Victims' Rights Meet Privacy Rights: Mandatory Hiv Testing, Striking The Fourth Amendment Balance, Bernadette Pratt Sadler
When Rape Victims' Rights Meet Privacy Rights: Mandatory Hiv Testing, Striking The Fourth Amendment Balance, Bernadette Pratt Sadler
Washington Law Review
As a result of the growing concern of rape victims about exposure to the AIDS virus, many states have enacted legislation allowing for forced testing of suspected or convicted rapists for the purpose of releasing the results to victims. Because the United States Supreme Court has yet to hear a fourth amendment challenge to any mandatory HIV testing program, the constitutionality of testing is not settled. This Comment analyzes mandatory HIV testing conducted for the purpose of informing the rape victim of her assailant's status and concludes that such testing is a violation of the fourth amendment because it does …
Protecting Individuals From Sex Discrimination: Compensatory Relief Under Title Ix Of The Education Amendments Of 1972, Pamela W. Kernie
Protecting Individuals From Sex Discrimination: Compensatory Relief Under Title Ix Of The Education Amendments Of 1972, Pamela W. Kernie
Washington Law Review
Title IX of the Education Amendments of 1972 prohibits sex discrimination by educational institutions that receive federal financial assistance. While federal courts agree that the purpose of Title IX is to protect individuals from sex discrimination, they are divided on the issue of whether compensatory damages are an available remedy to Title IX plaintiffs. This Comment discusses the limitations inherent in the enforcement of Title IX in the absence of a damages remedy and urges the Supreme Court to hold that damages are an available remedy.
Direct Actions For Emotional Harm: Is Compromise Possible?, Julie A. Davies
Direct Actions For Emotional Harm: Is Compromise Possible?, Julie A. Davies
Washington Law Review
While most courts and commentators acknowledge that emotional injury resulting from negligence may merit compensation, they share the conviction that some limits must be placed on such claims. They identify two basic policy rationales as the justifications for limiting claims for emotional harm: (1) the desire to ensure that a defendant's liability for negligence is not disproportionate to his or her fault, and (2) the desire to prevent litigation of trivial or fraudulent claims. This Article argues that the two rules most frequently applied by courts to effectuate limitations on recovery—the "zone-of-danger" rule and the "foreseeability-plus-serious-injury" rule—suffer from serious deficiencies. …
The Agency For International Development And Nepa: A Duty Unfulfilled, Gary M. Ernsdorff
The Agency For International Development And Nepa: A Duty Unfulfilled, Gary M. Ernsdorff
Washington Law Review
The National Environmental Policy Act (NEPA) establishes the Nation's environmental policy and creates a set of procedures necessary to fulfill that policy. The Agency for International Development (A.I.D.) narrowly interprets the application of NEPA's procedures and has adopted a less rigorous set of environmental evaluation procedures. This Comment examines A.I.D.'s procedures, notes their deficiencies, and suggests that Congress should amend NEPA to require A.I.D. and all agencies to utilize NEPA procedures.
Washington's Judicial Invalidation Of Unambiguous Exclusion Clauses In Multiple Causation Insurance Cases, Lawrence Alan Wans
Washington's Judicial Invalidation Of Unambiguous Exclusion Clauses In Multiple Causation Insurance Cases, Lawrence Alan Wans
Washington Law Review
The Washington Supreme Court has restricted the use of unambiguous exclusion clauses that limit homeowners' insurance coverage in multiple causation cases. This Comment discusses the court's "proximate cause" analysis, judicial treatment of policy exclusions, and the insured's expectations of coverage. The Comment argues that the Washington approach to multiple causation cases should be narrowly construed in Washington and rejected in other jurisdictions, because its consequences may harm insurers and insureds alike.
Rights Of Washington Junior Lienors In Nonjudicial Foreclosure—Washington Mutual Savings Bank V. United States, 115 Wash. 2d 52, 793 P.2d 969, Clarified, Reconsideration Denied, 800 P.2d 1124 (Wash. 1990), John D. Sullivan
Washington Law Review
In Washington Mutual Savings Bank v. United State, the Washington Supreme Court extended the anti-deficiency provisions of the Deed of Trust Act to all non-foreclosing junior lienors. Because this decision makes all junior obligations uncollectible following a nonjudicial foreclosure, it may have a chilling effect on lenders and a serious impact on the availability of home equity loans. This Note examines the Washington Mutual decision and suggests that the court should have determined instead that a deficiency is allowed, but should be computed after applying any surplus value in the property sold against junior obligations. This Note also recommends a …
Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson
Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson
Washington Law Review
The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …
Defense Counsel As Prosecution Witness: A Combined Doctrine To Govern Attorney Disclosure, David B. Merchant
Defense Counsel As Prosecution Witness: A Combined Doctrine To Govern Attorney Disclosure, David B. Merchant
Washington Law Review
Prosecutors have increasingly used grand juries to compel defense attorneys to disclose client administrative data such as clients' names, fee amounts, or third-party fee payments. A majority of the federal circuit courts protect administrative information only if disclosure would reveal the substance of previous attorney-client conversations. In contrast, a minority of the circuits protect such information when disclosure would incriminate a client in the case at bar. This Comment argues that neither of the current doctrines accomplishes the goals of the attorney-client privilege. Instead, a doctrine that combines the majority and minority views would more effectively promote the policies underlying …
Taxation Of Punitive Damages: Interpreting Section 104(A)(2) After The Revenue Reconciliation Act Of 1989, Craig Day
Washington Law Review
The Internal Revenue Service and the courts have wavered on whether punitive damages are taxable under the Internal Revenue Code. Just after the Fourth Circuit boldly declared that punitive damages are taxable, Congress amended section 104(a)(2) to tax punitive damages in cases where no physical injury is involved. Neither the courts nor the Internal Revenue Service have answered the question whether punitive damages in cases that do involve physical injury are taxable. This Comment examines the language of the amended statute and the policies leading to its enactment, and proposes that punitive damages be taxed without regard to the nature …
Clayton Act Scrutiny Of Nonprofit Hospital Mergers: The Wrong Rx For Ailing Institutions, David L. Glazer
Clayton Act Scrutiny Of Nonprofit Hospital Mergers: The Wrong Rx For Ailing Institutions, David L. Glazer
Washington Law Review
The Sherman and Clayton antitrust laws have long been used to challenge anticompetitive mergers between for-profit entities. Recently, the federal government began challenging mergers between nonprofit hospitals under the Clayton Act. Two federal circuit courts are divided on whether nonprofit mergers are subject to Clayton Act scrutiny. This Comment examines the statutory interpretations and the policy arguments suggested by the two cases, and concludes that the Clayton Act does not, and should not, apply to nonprofit hospital mergers.
Sparrow And Lone Wolf: Honoring Tribal Rights In Canada And The United States, Matthew D. Wells
Sparrow And Lone Wolf: Honoring Tribal Rights In Canada And The United States, Matthew D. Wells
Washington Law Review
Tribal sovereignty and self-government are essential to Native American cultural survival. Current limitations on Congress' plenary power in Indian affairs are inadequate to protect these core tribal rights. This Comment examines recent developments in Canadian law and proposes legislation following the Canadian example to better protect core tribal rights in the United States.