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Articles 1141 - 1170 of 3365
Full-Text Articles in Law
Antimask Laws: Exploring The Outer Bounds Of Protected Speech Under The First Amendment—State V. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990), Oskar E. Rey
Washington Law Review
In State v. Miller, the Supreme Court of Georgia held that the Georgia Antimask Statute does not violate free speech rights under the first amendment of the United States Constitution. Antimask statutes prohibit, with certain exceptions, the wearing of masks in a public place. The stated purposes of these statutes vary, but it is fairly clear that antimask laws are designed to deter Ku Klux Klan activity. This Note explores the first amendment implications of antimask laws, and concludes that antimask statutes are unconstitutional.
Constructing A New Action For Negligent Infliction Of Economic Loss: Building On Cardozo And Coase, Michael D. Lieder
Constructing A New Action For Negligent Infliction Of Economic Loss: Building On Cardozo And Coase, Michael D. Lieder
Washington Law Review
This Article proposes the creation of a new tort of negligent infliction of economic loss, a hybrid of negligence, negligent representation, and breach of contract. An action in this new tort would permit an injured party to recover for economic loss caused by a person with whom the party is not in contractual privity. This Article focuses on the infliction of economic loss by negligent construction, where courts have applied various doctrines and arrived at six distinct and inconsistent approaches to liability issues. This Article provides a solution applicable to litigation for negligent construction. Any action should protect an injured …
The Nonobviousness Of Inventions: In Search Of A Functional Standard, Kathleen N. Mckereghan
The Nonobviousness Of Inventions: In Search Of A Functional Standard, Kathleen N. Mckereghan
Washington Law Review
The Patent Act of 1952 introduced the nonobviousness requirement into patentability analysis. Historically vague, the nonobviousness requirement remains poorly defined. Courts currently use a variety of tests for nonobviousness, none of which correctly reflects the requirement's constitutional and technical role. This Comment proposes a functional standard embodying four elements: constitutional policy, technical advance, logical analysis, and active perspective.
Rethinking Civil Liberties Under The Washington State Constitution, James W. Talbot
Rethinking Civil Liberties Under The Washington State Constitution, James W. Talbot
Washington Law Review
In 1986 the Washington Supreme Court set forth six criteria for courts to apply in determining whether the state constitution affords broader protection for civil liberties than the federal Constitution. While making progress toward an independent interpretation of the state constitution, Washington courts remain overly dependent on federal precedent. This Comment explores Washington's approach to independent analysis of the state constitution by examining a recent Washington case extending a privacy interest to an individual's garbage. Washington's approach needs to be modified to emphasize independent analysis of the state constitution and thereby give effect to Washington's unique and vital constitutional heritage.
Fragile Gain: Two Centuries Of Canadian And United States Policy Toward Indians, Ralph W. Johnson
Fragile Gain: Two Centuries Of Canadian And United States Policy Toward Indians, Ralph W. Johnson
Washington Law Review
The United States and Canada share a common history in their policies toward and legal treatment of the Native Americans that historically have occupied both countries. The Royal Proclamation of 1763 established a policy of recognizing Aboriginal title and treating with Indians that was binding on the colonies that preceded both countries, and influenced both governments in later dealings with tribes. Assimilationist themes are evident as well in the national policy toward Indians in both countries. Nevertheless, historically and in the present, national policies and laws of the two governments can be contrasted. This Article sets forth a detailed comparison …
Penetrating Doctrinal Camouflage: Understanding The Development Of The Law Of Wrongful Discharge, Cornelius J. Peck
Penetrating Doctrinal Camouflage: Understanding The Development Of The Law Of Wrongful Discharge, Cornelius J. Peck
Washington Law Review
American courts developed the employment-at-will doctrine during the post-Civil War period of industrial and commercial expansion. Under that doctrine, either an employer or an employee could terminate an employment contract for any reason, good or bad. In the early 1980s, state supreme courts increasingly recognized exceptions to the employment-at-will doctrine to provide greater job protection for employees. In creating those exceptions, state courts have manipulated and stretched traditional legal doctrine to camouflage their reformist program. But that camouflage which facilitated changes in the law now often obscures the original reason for departing from the employment-at-will doctrine. Some state courts, including …
Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Majorie A. Silver
Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Majorie A. Silver
Washington Law Review
Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that first amendment values support a judicial role …
Undefined Experimental Treatment Exclusions In Health Insurance Contracts: A Proposal For Judicial Response, Jennifer Belk
Undefined Experimental Treatment Exclusions In Health Insurance Contracts: A Proposal For Judicial Response, Jennifer Belk
Washington Law Review
Health insurance contracts often exclude coverage for experimental treatments. No accepted definition of experimental treatment exists, however, and insurance contracts rarely define the term. Although experimental treatment exclusions are necessary and desirable, insurers may easily manipulate undefined exclusions to exclude treatments on inappropriate bases such as cost. Thus, courts should construe the term "experimental" narrowly and find treatments non-experimental if there is any demonstrated likelihood of their success.
Determining Just Cause: An Equitable Solution For The Workplace, Wendi J. Delmendo
Determining Just Cause: An Equitable Solution For The Workplace, Wendi J. Delmendo
Washington Law Review
A majority of courts now recognize that an employer's implied promise to discharge an employee only for just cause is an exception to the at-will employment doctrine. These courts, however, have not articulated a clear definition ofjust cause nor have they established a consistent standard for a jury's review of employer discharge decisions. This Comment suggests that courts develop strict guidelines for determining if an employee's conduct is just cause for discharge. Further, this Comment proposes that courts adopt a standard of review that requires the jury to balance employer and employee interests.
Is 28 U.S.C. § 1404(A) A Federal Forum-Shopping Statute?, Michaael B. Rodden
Is 28 U.S.C. § 1404(A) A Federal Forum-Shopping Statute?, Michaael B. Rodden
Washington Law Review
In 1948, Congress enacted section 1404(a) of Tit;e 28 to allow transfers between federal district courts. Congress intended the statute to promote convenience in the federal courts. The statute does not specify which state's law applies following a transfer, but in 1964, in Van Dusen v. Barrack, the Supreme Court determined that the state law of the transferor court must apply following defendant-initiated transfers. The Van Dusen Court reasoned that application of the statute should promote convenience and uniformity and discourage forum-shopping in the federal courts. In 1990, in Ferens v. John Deere Co., the Supreme Court held that the …
Valuation And International Regulation Of Forest Ecosystems: Propects For A Global Forest Agreement, Michael B. Saunders
Valuation And International Regulation Of Forest Ecosystems: Propects For A Global Forest Agreement, Michael B. Saunders
Washington Law Review
Deforestation poses severe environmental problems for temperate and tropical regions world-wide. An international forest agreement is necessary to protect these forests. Previous international environmental agreements provide, at best, limited protection for endangered natural resources. To conserve the world's forests, an effective forest agreement must recognize the economic value of forest ecosystems. This forest agreement should define a twofold rule of responsibility: that states have a duty to protect forests located within their borders, and that other states that benefit from forests have a legal obligation to share in conservation costs.
Misusing Procedural Devices To Dismiss An Environmental Lawsuit—Lugan V. National Wildlife Federation, 110 S. Ct. 3177 (1990), Michael J. Shinn
Misusing Procedural Devices To Dismiss An Environmental Lawsuit—Lugan V. National Wildlife Federation, 110 S. Ct. 3177 (1990), Michael J. Shinn
Washington Law Review
In Lujan v. National Wildlife Federation, the Supreme Court upheld a grant of summary judgment against the National Wildlife Federation for lack of standing. The Court held that the federation failed to sufficiently claim specific injury to federation members. The Court also stated in dicta that the federation's claims were not ripe for review. The opinion does not apply precedent regarding summary judgment to the standing inquiry, and fails to apply precedent regarding ripeness to the facts of the case. This Note examines the reasoning of the Lujan Court, and compares the results reached with those suggested by unapplied precedents. …
The Decline Of Tribal Sovereignty: The Journey From Dicta To Dogma In Duro V. Reina, 110 S. Ct. 2053 (1990), Peter Fabish
The Decline Of Tribal Sovereignty: The Journey From Dicta To Dogma In Duro V. Reina, 110 S. Ct. 2053 (1990), Peter Fabish
Washington Law Review
In Duro v. Reina, the Supreme Court held that tribal courts do not have jurisdiction over Indians committing crimes within their territorial jurisdiction, but not belonging to their tribe. This holding is incompatible with judicial precedent as well as contemporary executive and congressional policy. The decision also creates serious practical problems for tribal, federal and state authorities by leaving a jurisdictional void over nonmember Indian criminals. A holding that tribal courts have jurisdiction over all tribal Indians who commit crimes on reservations would have been in harmony with judicial, congressional and executive precedent, and would not have created equal protection …
Self-Incrimination, Compulsion, And The Undercover Agent—Illinois V. Perkins, 110 S. Ct. 2394 (1990), Kathryn Young-Sook Kim
Self-Incrimination, Compulsion, And The Undercover Agent—Illinois V. Perkins, 110 S. Ct. 2394 (1990), Kathryn Young-Sook Kim
Washington Law Review
As a rule, police officers must advise suspects held in custody of their rights before interrogating them. In Illinois v. Perkins, the Supreme Court created an undercover agent exception to this rule. The Perkins Court concluded that the rule does not apply because undercover interrogations do not compel criminal defendants to incriminate themselves. This Note examines the impact of the Perkins exception and concludes that the rule should apply even when undercover agents conduct the inherently compelling custodial interrogation.
An Easy Case Makes Bad Law—Burnham V. Superior Court Of California, 110 S. Ct. 2105 (1990), Robert Taylor-Manning
An Easy Case Makes Bad Law—Burnham V. Superior Court Of California, 110 S. Ct. 2105 (1990), Robert Taylor-Manning
Washington Law Review
In Burnham v. Superior Court of California, the United States Supreme Court considered the continued vitality of transient jurisdiction. Although the Court unanimously held that the defendant was subject to state court jurisdiction, it failed to agree on the issue of transient jurisdiction, issuing three plurality opinions. This Note examines Burnham and concludes that the Court should invalidate transient jurisdiction as a violation of due process rights. It proposes that the Court evaluate all state court assertions of jurisdiction against a minimum contacts standard.
Of Gametes And Guardians: The Impropriety Of Appointing Guardians Ad Litem For Fetuses And Embryos, Susan Goldberg
Of Gametes And Guardians: The Impropriety Of Appointing Guardians Ad Litem For Fetuses And Embryos, Susan Goldberg
Washington Law Review
Recent advances in medical technology have caused some commentators and courts to perceive fetuses and embryos as separate entities, with rights independent of the women who carry them. Conduct of pregnant women that has been perceived to conflict with the interests of the fetuses they carry has been called into question. In some cases, courts have been forced to determine the juridical status of fetuses and embryos; in others, courts have appointed guardians ad litem to represent the "best interests" of these entities. This Article maintains that appointing guardians ad litem for fetuses and embryos is inappropriate. Fetuses and embryos …
Strange Bedfellows: Corporate Fiduciaries And The General Law Compliance Obligation In Section 2.01(A) Of The American Law Institute's Principles Of Corporate Governance, Patrick J. Ryan
Washington Law Review
Business and corporate crime is a controversial social problem. Less well known is the extent to which corporate legal doctrine permits derivative litigation against corporate officials arising from deviance episodes. In this Article, Professor Ryan examines both the traditional applications of fiduciary obligation to corporate deviance and the American Law Institute's revised formulations in the still-unfinished Principles of Corporate Governance. His findings reveal the difficulties encountered in trying to enforce general legal obligations by means of corporate governance mechanisms. He predicts that the ex ante effects of the ALI provisions will be two in nature. First, fiduciary obligation and its …
The Charitable Status Of Nonprofit Hospitals: Toward A Donative Theory Of Tax Exemption, Mark A. Hall, John D. Colombo
The Charitable Status Of Nonprofit Hospitals: Toward A Donative Theory Of Tax Exemption, Mark A. Hall, John D. Colombo
Washington Law Review
This Article examines the growing controversy over the multi-billion dollar charitable tax exemption enjoyed by nonprofit hospitals. It begins by articulating four criteria for evaluating a rationale of the charitable exemption: deservedness, incorporating the elements of worth and need; proportionality; universality; and historical consistency. The Article then employs these criteria to refute three conventional explanations of why nonprofit hospitals are exempt: because health care is a per se charitable activity; because the treatment of indigent patients relieves a government burden; and because nonprofit hospitals provide community benefits. The Article also uses these criteria to refute two academic theories: Boris Bittker's …
Taking Issue With Takings: Has The Washington State Supreme Court Gone Too Far?, Jill M. Teutsch
Taking Issue With Takings: Has The Washington State Supreme Court Gone Too Far?, Jill M. Teutsch
Washington Law Review
The Washington State Supreme Court has expressed concern for local governments' potential financial liability under the taking clauses of the federal and state constitutions. Accordingly, the court adopted a comprehensive framework to analyze regulatory challenges and mitigate the chilling effect of potential financial liability. The court, however, went too far in its zeal to promote innovative land-use measures. Its broadly inclusive insulation doctrine allows little room for any regulatory takings. Because the insulation doctrine fails to meet a federal minimum of constitutionality, the doctrine must be relaxed to comport with precedent. To prevent the return of the chilling effect, the …
The Undoing Of Mandatory Free Exercise Accommodation—Employment Division, Department Of Human Resources V. Smith, 110 S. Ct. 1595 (1990), Danielle A. Hess
The Undoing Of Mandatory Free Exercise Accommodation—Employment Division, Department Of Human Resources V. Smith, 110 S. Ct. 1595 (1990), Danielle A. Hess
Washington Law Review
The United States Supreme Court has struggled to find a fair and consistent approach to cases in which an individual's religious practice conflicts with a generally applicable law. Prior to Employment Division, Department of Human Resources v. Smith, the Court used a balancing approach to determine whether the state's interests in denying an exemption to a criminal law justified the burden that the law placed on an individual's religious practice. After Smith, the state must show only that the law is generally applicable and does not directly target a religious practice. This new approach underprotects religious conduct because it provides …
Tax-Free Security: Federal Income Taxation Of Customer Deposits After Commissioner V. Indianapolis Power & Light Co., 110 S. Ct. 589 (1990), Alisa Eid
Washington Law Review
In Commissioner v. Indianapolis Power & Light Co., the Supreme Court held that a taxpayer receiving a customer deposit to secure future payment for goods or services may exclude that deposit from income if the taxpayer obligates itself to refund the deposit and if the customer retains the right to cancel service at any time. Because these conditions characterize virtually all security deposits, the Court's rule will allow taxpayers to exclude most security deposits from income. This Note examines the Court's decision and suggests that the Court's rule should not be extended to any situation where either the obligation to …
Misconduct In Washington Unemployment Compensation Law—Henson V. Employment Security Department, 113 Wash. 2d 374, 779 P.2d 715 (1989), Karen L. Forner
Misconduct In Washington Unemployment Compensation Law—Henson V. Employment Security Department, 113 Wash. 2d 374, 779 P.2d 715 (1989), Karen L. Forner
Washington Law Review
Unemployment compensation may be denied to employees dismissed for misconduct. In Henson v. Employment Security Department, the Washington Supreme Court misapplied the misconduct doctrine by blurring the distinction between on-duty and off-duty misconduct. This Note compares past Washington misconduct doctrine with its application in Henson and discusses the potential equal protection implications of this decision. The author concludes that Henson adversely affects employees and confuses the misconduct doctrine in Washington. Further, while there was no equal protection violation in Henson, the court's result opens the door to future equal protection challenges and violations.
Civil Rights: A Call For Qualified Legislative Immunity For City Council Members Under 442 U.S.C. § 1983, Kevin R. Cole
Civil Rights: A Call For Qualified Legislative Immunity For City Council Members Under 442 U.S.C. § 1983, Kevin R. Cole
Washington Law Review
If a city council member engages in legislative conduct that violates a person's clearly established, federally protected rights, should the council member ever be personally liable for civil damages under 42 U.S.C. § 1983? By the end of the 1980s, eight circuit courts of appeals found that absolute legislative immunity prevented local legislators from being held personally liable for their legislative acts. This majority position is misguided. Legal analysis and public policy support qualified, rather than absolute, legislative immunity for city council members in section 1983 cases. Under a rule of qualified legislative immunity, the council member would be liable …
Review Of Visa Denials By Consular Officers, James A.R. Nafziger
Review Of Visa Denials By Consular Officers, James A.R. Nafziger
Washington Law Review
United States consular officers stationed abroad exercise enormous discretion in deciding whether to grant or deny applications for visas by foreign citizens. The process for reviewing visa denials is exceptionally limited. Federal rules and regulations and consular practices do provide for internal review of visa denials, members of Congress and the media occasionally press for review of individual cases, and the Visa Office in the Department of State issues advisory opinions from time to time on matters of both fact and law. This process is, however, inadequate for several reasons. Time and budgetary constraints generally prevent consular officers from recording …
Governmental Inaction As As Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells
Governmental Inaction As As Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells
Washington Law Review
DeShaney v. Winnebago County Department of Social Services is the Supreme Court's first major effort to define the scope of state and local governments' affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state's custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is …
Search And Seizure, Third-Part Consent: Rethinking Police Conduct And The Fourth Amendment, Gregory S. Fisher
Search And Seizure, Third-Part Consent: Rethinking Police Conduct And The Fourth Amendment, Gregory S. Fisher
Washington Law Review
Two recent decisions offer different approaches for assessing police conduct in third-party consent cases. In Illinois v. Rodriguez the United States Supreme Court held that police may rely on third parties' apparent authority to consent to a search so long as police reasonably believe in third parties' authority. In State v. Leach, the Supreme Court of Washington held that police cannot rely on third parties' consent when defendants are present and able to object, even if defendants did not object to the search. This Comment argues that courts should focus on police conduct, rather than on defendants' presence or on …
The Imprimatur Of Recognition: American Indian Tribes And The Federal Acknowledgment Process, Rachael Paschal
The Imprimatur Of Recognition: American Indian Tribes And The Federal Acknowledgment Process, Rachael Paschal
Washington Law Review
The Bureau of Indian Affairs administers a program to federally acknowledge unrecognized Indian tribes. The federal acknowledgment process requires that petitioning tribes meet stringent anthropological, historical, and genealogical criteria. These criteria, however, do not accurately reflect prior standards of federal recognition, and the Bureau of Indian Affairs inconsistently interprets them from petition to petition. This Comment describes the background of federal recognition in the executive branch of the government and analyzes the program and its criteria through a comparison of BIA-issued final decisions. This Comment further suggests reform of the federal acknowledgment process through legislative restructuring. In particular, the legislature …
Applying Washington's Sentencing Reform Act To Mandatory Life Prisoners: An Ex Post Facto Violation, Steven J. Samario
Applying Washington's Sentencing Reform Act To Mandatory Life Prisoners: An Ex Post Facto Violation, Steven J. Samario
Washington Law Review
Following the 1989 session of the Washington Legislature, the Indeterminate Sentence Review Board (Board) began redetermining the minimum terms of prisoners serving a mandatory life sentence for crimes committed before July 1984. To calculate these new minimum terms, the legislature directed the Board to apply the same sentencing ranges enacted in the Washington Sentencing Reform Act, which took effect July 1, 1984. This Comment analyzes whether the state violated the United States Constitution when it ordered that these minimum terms be redetermined. It concludes that Washington courts should void the state's action because it violates the constitutional prohibition against ex …
The Monkey's Paw: Regulating The Deliberate Environmental Release Of Genetically Engineered Organisms, Robert Saperstein
The Monkey's Paw: Regulating The Deliberate Environmental Release Of Genetically Engineered Organisms, Robert Saperstein
Washington Law Review
The deliberate release of genetically engineered organisms poses uncertain but potentially grave risks to the environment. The governing federal and state environmental regulations are inefficient and do not protect environmental integrity. This Comment examines the deliberate release of genetically engineered organisms in the context of federal and state environmental laws. It concludes that the current regulatory schemes are inadequate and proposes changes to meet the goals of effective environmental regulation.
Post-Employment Lobbying Restrictions On The Legislative Branch Of Government: A Minimalist Approach To Regulating Ethics In Government, Joseph I. Hochman
Post-Employment Lobbying Restrictions On The Legislative Branch Of Government: A Minimalist Approach To Regulating Ethics In Government, Joseph I. Hochman
Washington Law Review
Federal post-employment lobbying restrictions currently apply only to former executive branch employees. Congress is considering legislation that expands the prohibitions to include the legislative branch. This Comment discusses the proposed legislation in light of first amendment concerns, and concludes that the legislation is constitutional. Moreover, the legislation strikes an optimal balance between the interests of the public, the government, lobbyists, and their clients