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Washington Law Review

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Full-Text Articles in Law

Protecting The Inmate's Right To Refuse Antipsychotic Drugs—Harper V. State, 110 Wash. 2d 873, 759 P.2d 358 (1988), Cert. Granted, 109 S. Ct. 1337 (1989), Amanda E. Lee Apr 1989

Protecting The Inmate's Right To Refuse Antipsychotic Drugs—Harper V. State, 110 Wash. 2d 873, 759 P.2d 358 (1988), Cert. Granted, 109 S. Ct. 1337 (1989), Amanda E. Lee

Washington Law Review

Antipsychotic drugs are used to treat mentally ill inmates in Washington prisons. Previously, inmates who refused drugs were entitled to an administrative hearing before involuntary treatment began. Harper v. State recognized a constitutional liberty interest in refusing antipsychotics, and established new measures, including a judicial hearing, notice, and appointed counsel, to protect the prisoner's interest. A due process analysis of the right to refuse demonstrates that the court's procedures may not go far enough to protect the inmate from unwanted treatment that cannot cure the mental illness and that may cause disabling side effects. Clearer definitions of state interests in …


Church And State In The States, G. Alan Tarr Jan 1989

Church And State In The States, G. Alan Tarr

Washington Law Review

In many state constitutions, the provisions dealing with the relationship of church and state differ substantially from the federal establishment clause. In this Article, Professor Tarr demonstrates that relying on the state constitutional guarantees may lead to markedly different results than would obtain under the first amendment. He argues that state constitutional provisions very often are ignored, apparently because practitioners mistakenly believe that state provisions merely repeat the strictures of the first amendment. Professor Tarr maintains that this is unfortunate and untrue, because our constitutional system allows a state constitution to provide for less, equal, or greater separation of church …


One Century Of Constitutional Home Rule: A Progress Report, Michael Monroe Kellogg Sebree Jan 1989

One Century Of Constitutional Home Rule: A Progress Report, Michael Monroe Kellogg Sebree

Washington Law Review

Despite constitutional and statutory provisions providing for home rule, Washington municipalities continue to lack meaningful local autonomy. The author examines the need for home rule and its genesis in the United States and Washington. In addition, the author analyzes Washington case law in this area and concludes with constitutional and judicial proposals designed to increase municipal self-governance.


Foreword: The Once "New Judicial Federalism" & Its Critics, Ronald K.L. Collins Jan 1989

Foreword: The Once "New Judicial Federalism" & Its Critics, Ronald K.L. Collins

Washington Law Review

The first critic of the once "new judicial federalism" is also the person credited with being its "intellectual godfather"—Hans Linde. Back in the pristine years of this constitutional experiment, then Professor Linde warned: A state court cannot undertake "to evolve an independent jurisprudence under the state constitution ... by searching ad hoc for some plausible premise in the state constitution only when federal precedents will not support the desired result." Perhaps his influence in this area is attributable to the fact that he is, in a certain sense, both critic and "crusader." Of course, the claim needs to be explained. …


State Constitutional Law, The United States Supreme Court, And Democratic Accountability: Is There A Crocodile In The Bathtub?, Robert F. Utter Jan 1989

State Constitutional Law, The United States Supreme Court, And Democratic Accountability: Is There A Crocodile In The Bathtub?, Robert F. Utter

Washington Law Review

Justice Robert F. Utter of the Washington Supreme Court analyzes the nature of judicial review by state courts interpreting state constitutions. The Article emphasizes the democratic nature of state court decisions. The public may counteract unpopular state court opinions by either voting state court judges out of office or by amending the state constitution. On the other hand, court opinions may be either affirmatively approved or ratified by inaction. State courts also serve as experimental laboratories for the United States Supreme Court by gauging the public response to and practicality of constitutional doctrines. Justice Utter suggests that the more democratic …


Home Rule: An Essay On Pluralism, Michael Libonati Jan 1989

Home Rule: An Essay On Pluralism, Michael Libonati

Washington Law Review

Home rule can be viewed as a metaphor for the policies of decentralization and diffusion of power. This Essay aims to rediscover some of the deep historical roots of the policy and practice of local self-government. The Essay also explores some of the ways in which local autonomy can be reimagined in contemporary contexts.


Speech Activists In Shopping Centers: Must Property Rights Give Way To Free Expression?, Frederick W. Schoepflin Jan 1989

Speech Activists In Shopping Centers: Must Property Rights Give Way To Free Expression?, Frederick W. Schoepflin

Washington Law Review

The United States Constitution does not require shopping center owners to allow speech activists to engage in expressive activities on shopping center property. The Supreme Court has authorized states to provide greater protections f6r expressive activities than the Constitution provides. Six state supreme courts have interpreted the constitutions of their states to limit protections to the scope of the United States Constitution. Three state supreme courts have interpreted their constitutions to mandate accommodation of speech activists on private shopping center property. This Comment analyzes the treatment of the shopping center conflict both in the United States Supreme Court and in …


The Stop And Frisk Doctrine In Washington And The Rise And Fall Of Independent State Constitutional Analysis, Kurt Walters Jan 1989

The Stop And Frisk Doctrine In Washington And The Rise And Fall Of Independent State Constitutional Analysis, Kurt Walters

Washington Law Review

As the United States Supreme Court expanded the scope and intensity limits of the stop and frisk doctrine, the Washington Supreme Court, in 1984, applied independent state constitutional analysis and held that article I, section 7 of the Washington State Constitution provides greater privacy protection in stop and frisk cases than the United States Constitution. Since then, however, the Washington court has abandoned its reliance on article I, section 7 in the stop and frisk context. This Comment examines this transition and concludes that the federal stop and frisk doctrine may not adequately protect fundamental privacy rights, and that the …


State Constitutional Remedy Provisions And Article I, Section 10 Of The Washington State Constitution: The Possibility Of Greater Judicial Protection Of Established Tort Causes Of Action And Remedies, Janice Sue Wang Jan 1989

State Constitutional Remedy Provisions And Article I, Section 10 Of The Washington State Constitution: The Possibility Of Greater Judicial Protection Of Established Tort Causes Of Action And Remedies, Janice Sue Wang

Washington Law Review

Several state courts interpret their states' constitutional remedy provisions as justifying heightened judicial scrutiny of legislative alterations in tort law. This confers greater protection of tort causes of action and remedies established at the time of the state constitution's adoption. This Comment considers whether article I, section 10 of the Washington constitution can support such an interpretation. Additionally, the author discusses the existing interpretations of other states' remedy provisions and suggests a heightened scrutiny model that best balances the interest in retaining already recognized tort remedies against the interest in fostering positive change.


Washington's Comparative Proportionality Review: Toward Effective Appellate Review Of Death Penalty Cases Under The Washington State Constitution, W. Ward Morrison Jr. Jan 1989

Washington's Comparative Proportionality Review: Toward Effective Appellate Review Of Death Penalty Cases Under The Washington State Constitution, W. Ward Morrison Jr.

Washington Law Review

In conducting mandatory comparative proportionality review of all cases in which the death penalty is imposed, the Washington Supreme Court compares the defendant's case with similar cases to ensure that the penalty is being applied consistently. In theory, the review promotes rational and non-arbitrary capital sentencing. In practice, the review has not been effectively applied. Continued use of ineffective appellate review for death sentences violates the Washington Constitution. This Comment explores the various problems associated with the review process, and proposes possible solutions.


Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe Oct 1988

Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe

Washington Law Review

This Comment assesses the current state of forensic DNA tests and analyzes whether courts should admit the results of these tests as evidence. Section I provides a background discussion of how DNA tests work. This knowledge is essential for attorneys and courts seeking to evaluate expert testimony and analyze important issues concerning the reliability and admissibility of DNA test results. Section I also proposes safeguards and standards to facilitate the judicial acceptance of forensic DNA tests. Section II discusses judicial approaches to the admissibility of novel scientific techniques such as DNA tests, and concludes that courts should admit the results …


Privacy Regulation Of Computer-Assisted Testing And Instruction, Charles R. Tremper, Mark A. Small Oct 1988

Privacy Regulation Of Computer-Assisted Testing And Instruction, Charles R. Tremper, Mark A. Small

Washington Law Review

Using computers to assist in testing and instruction creates privacy concerns that were absent or less consequential prior to the computer age. Not only does computer-assisted testing and instruction (CATI) threaten to invade privacy insidiously, its use with young schoolchildren poses the additional threat of arresting development of their privacy expectations. In light of the significance of "reasonable expectations of privacy" in constitutional and tort law, as well as privacy's role in resisting totalitarianism, widespread and routine use of CATI may profoundly alter the balance between public and private realms.


Perpetuities: Basic Clarity, Muddled Reform, Robert L. Fletcher Oct 1988

Perpetuities: Basic Clarity, Muddled Reform, Robert L. Fletcher

Washington Law Review

This piece is intended to present the Rule Against Perpetuities, including its recent modifications, simply and understandably. Because the Rule's mechanics, even in their neatest and purest form, have seemed beyond average comprehension, the explanation given here largely brushes over minor variants in the common law expression of the Rule and its operation. The goal is to ensure that the real core of the Rule is clearly portrayed.


Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe Oct 1988

Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe

Washington Law Review

This Comment assesses the current state of forensic DNA tests and analyzes whether courts should admit the results of these tests as evidence. Section I provides a background discussion of how DNA tests work. This knowledge is essential for attorneys and courts seeking to evaluate expert testimony and analyze important issues concerning the reliability and admissibility of DNA test results. Section I also proposes safeguards and standards to facilitate the judicial acceptance of forensic DNA tests. Section II discusses judicial approaches to the admissibility of novel scientific techniques such as DNA tests, and concludes that courts should admit the results …


Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston Oct 1988

Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston

Washington Law Review

Should a parent corporation be allowed to discriminate in favor of its wholly-owned subsidiary? Courts have long grappled with this question when interpreting section 2(a) of the Robinson-Patman Act (the "Act"). Section 2(a) prohibits price discrimination between "different purchasers." If the subsidiary corporation is a "different purchaser" when it purchases goods from its parent, then the parent violates the Robinson-Patman Act by discriminating in the subsidiary's favor. Many courts, when faced with this issue, have ruled that the parent and subsidiary are per se parts of a single entity. The Fifth Circuit was the first court to adopt this per …


Mitigating Alcohol Health Hazards Through Health Warning Labels And Public Education, Elizabeth L. Kruger Oct 1988

Mitigating Alcohol Health Hazards Through Health Warning Labels And Public Education, Elizabeth L. Kruger

Washington Law Review

Alcohol is the most commonly abused drug in America today; yet, there has been no serious national effort to warn or educate the American public about the non-obvious dangers of its consumption. Courts refuse to impose liability on alcoholic beverage manufacturers for injuries arising out of their failure to warn consumers of the dangers of alcoholic beverages. They reason that the risks of alcohol consumption are widely known among the consuming public. Yet, Americans are actually less aware of the dangers of alcohol consumption than of the risks of smoking. This problem may be solved in several ways. A first …


The Public Trust Doctrine: Accommodating The Public Need Within Constitutional Bounds—Orion Corp. V. State, 109 Wash. 2d 621, 747 P.2d 1062 (1987), Cert. Denied, 108 S. Ct. 1996 (1988), Steven W. Turnbull Oct 1988

The Public Trust Doctrine: Accommodating The Public Need Within Constitutional Bounds—Orion Corp. V. State, 109 Wash. 2d 621, 747 P.2d 1062 (1987), Cert. Denied, 108 S. Ct. 1996 (1988), Steven W. Turnbull

Washington Law Review

Following decades of neglecting its public trust duties, Washington now accepts the public trust doctrine as a permanent fixture in its law. In Orion Corp. v. State, the Washington Supreme Court reaffirmed the state's sovereign interest as the public's trustee in its tidelands, marshes, and shorelands. The court declared that private use of protected trust lands must conform to the public's interest in navigation, fishing, and recreation, and must not be harmful to the land's dependent wildlife. The court, however, declined to define the public trust's reach, stating only that it is coextensive with the public need. This standard suggests …


Deferred Cash Payments To Secured Creditors In Cram Down Of Chapter 11 Plans: A Matter Of Interest, Waltraud S. Scott Oct 1988

Deferred Cash Payments To Secured Creditors In Cram Down Of Chapter 11 Plans: A Matter Of Interest, Waltraud S. Scott

Washington Law Review

What is the present value of deferred payments made to secured creditors under a Chapter 11 reorganization plan? Courts agree that the present value depends on the interest rate that is used to compute the payments' value. They cannot agree, however, on how the proper interest rate should be determined. In their attempts to set a proper interest rate, most courts travel down the dead-end road of market rate analysis. Bogged down in the intricacies of this analysis, courts frequently ignore their fundamental role in bankruptcy proceedings: Resolving the tension between giving creditors protection while giving debtors a chance to …


On "Protecting The Ordinary Investor", Ralph K. Winter Oct 1988

On "Protecting The Ordinary Investor", Ralph K. Winter

Washington Law Review

In this lecture I propose to differentiate, in a somewhat arbitrary yet analytically helpful way, between four types of investors, and then to consider various issues of corporate and securities law in light of the interests and functions of the different investors. I will style the investors the "Ordinary Investor," the "Speculator," the "Institutional Investor," and the "Entrepreneur in the Market for Management Control." These distinctions are arbitrary because overlap exists between the categories. Moreover, these definitions are not based on how particular investors behave, but on the market functions different kinds of investors perform. Thus, some who consider themselves …


Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston Oct 1988

Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston

Washington Law Review

Should a parent corporation be allowed to discriminate in favor of its wholly-owned subsidiary? Courts have long grappled with this question when interpreting section 2(a) of the Robinson-Patman Act (the "Act"). Section 2(a) prohibits price discrimination between "different purchasers." If the subsidiary corporation is a "different purchaser" when it purchases goods from its parent, then the parent violates the Robinson-Patman Act by discriminating in the subsidiary's favor. Many courts, when faced with this issue, have ruled that the parent and subsidiary are per se parts of a single entity. The Fifth Circuit was the first court to adopt this per …


Mitigating Alcohol Health Hazards Through Health Warning Labels And Public Education, Elizabeth L. Kruger Oct 1988

Mitigating Alcohol Health Hazards Through Health Warning Labels And Public Education, Elizabeth L. Kruger

Washington Law Review

Alcohol is the most commonly abused drug in America today; yet, there has been no serious national effort to warn or educate the American public about the non-obvious dangers of its consumption. Courts refuse to impose liability on alcoholic beverage manufacturers for injuries arising out of their failure to warn consumers of the dangers of alcoholic beverages. They reason that the risks of alcohol consumption are widely known among the consuming public. Yet, Americans are actually less aware of the dangers of alcohol consumption than of the risks of smoking. This problem may be solved in several ways. A first …


The Montreal Protocol: Confronting The Threat To Earth's Ozone Layer, Douglas Hunter Ogden Oct 1988

The Montreal Protocol: Confronting The Threat To Earth's Ozone Layer, Douglas Hunter Ogden

Washington Law Review

From a deep sleep, I slowly open my eyes and roll off my foam mattress—the foam padding made with chlorofluorocarbons ("CFCs"). My feet touch the carpet-the underlay also made with CFCs. I stumble into the kitchen, to the refrigerator. With the summertime heat, the motor is working overtime. Its coolant, made of CFCs, is keeping my orange juice cold; the foam egg carton, also of CFCs, is keeping my eggs fresh. And there is my breakfast steak: resplendent in its CFC foam package. Time to get to work Jumping into the car, I land in the CFC foam cushion seat, …


An Opportunity To Be Heard: The Right To Counsel In A Deportation Hearing, David A. Robertson Oct 1988

An Opportunity To Be Heard: The Right To Counsel In A Deportation Hearing, David A. Robertson

Washington Law Review

This Comment explores the problems aliens in deportation hearings face in obtaining legal assistance under the current law. Our adversarial system of justice traditionally recognizes the need for participants to have the benefit of professional and knowledgeable legal assistance. Congress has given aliens a statutory right of access to counsel through the Immigration and Nationality Act ("INA"). This right, however, is not being uniformly extended to aliens in deportation hearings. Part of the problem is financial. Although aliens have a right to counsel, the INA does not provide government assistance for aliens unable to pay attorneys. The ultimate result is …


Deferred Cash Payments To Secured Creditors In Cram Down Of Chapter 11 Plans: A Matter Of Interest, Waltraud S. Scott Oct 1988

Deferred Cash Payments To Secured Creditors In Cram Down Of Chapter 11 Plans: A Matter Of Interest, Waltraud S. Scott

Washington Law Review

What is the present value of deferred payments made to secured creditors under a Chapter 11 reorganization plan? Courts agree that the present value depends on the interest rate that is used to compute the payments' value. They cannot agree, however, on how the proper interest rate should be determined. In their attempts to set a proper interest rate, most courts travel down the dead-end road of market rate analysis. Bogged down in the intricacies of this analysis, courts frequently ignore their fundamental role in bankruptcy proceedings: Resolving the tension between giving creditors protection while giving debtors a chance to …


Expert Testimony On Rape Trauma Syndrome: An Argument For Limited Admissibility—State V. Black, 109 Wash. 2d 336, 745 P.2d 12 (1987), Deborah A. Dwyer Oct 1988

Expert Testimony On Rape Trauma Syndrome: An Argument For Limited Admissibility—State V. Black, 109 Wash. 2d 336, 745 P.2d 12 (1987), Deborah A. Dwyer

Washington Law Review

In State v. Black, the Washington Supreme Court faced the question of whether the State, in a rape case, should be allowed to offer expert testimony on rape trauma syndrome ("RTS"). After examining some of the relevant scientific literature, case law, and the standards governing the admissibility of expert testimony, the court held that expert testimony on RTS was inadmissible. The court based its decision on findings that RTS testimony lacks scientific reliability, and that it unfairly prejudices a defendant accused of rape. The court's holding in Black was based on a misinterpretation of the available scientific literature, and on …


The Public Trust Doctrine: Accommodating The Public Need Within Constitutional Bounds—Orion Corp. V. State, 109 Wash. 2d 621, 747 P.2d 1062 (1987), Cert. Denied, 108 S. Ct. 1996 (1988), Steven W. Turnbull Oct 1988

The Public Trust Doctrine: Accommodating The Public Need Within Constitutional Bounds—Orion Corp. V. State, 109 Wash. 2d 621, 747 P.2d 1062 (1987), Cert. Denied, 108 S. Ct. 1996 (1988), Steven W. Turnbull

Washington Law Review

Following decades of neglecting its public trust duties, Washington now accepts the public trust doctrine as a permanent fixture in its law. In Orion Corp. v. State, the Washington Supreme Court reaffirmed the state's sovereign interest as the public's trustee in its tidelands, marshes, and shorelands. The court declared that private use of protected trust lands must conform to the public's interest in navigation, fishing, and recreation, and must not be harmful to the land's dependent wildlife. The court, however, declined to define the public trust's reach, stating only that it is coextensive with the public need. This standard suggests …


On "Protecting The Ordinary Investor", Ralph K. Winter Oct 1988

On "Protecting The Ordinary Investor", Ralph K. Winter

Washington Law Review

In this lecture I propose to differentiate, in a somewhat arbitrary yet analytically helpful way, between four types of investors, and then to consider various issues of corporate and securities law in light of the interests and functions of the different investors. I will style the investors the "Ordinary Investor," the "Speculator," the "Institutional Investor," and the "Entrepreneur in the Market for Management Control." These distinctions are arbitrary because overlap exists between the categories. Moreover, these definitions are not based on how particular investors behave, but on the market functions different kinds of investors perform. Thus, some who consider themselves …


The Montreal Protocol: Confronting The Threat To Earth's Ozone Layer, Douglas Hunter Ogden Oct 1988

The Montreal Protocol: Confronting The Threat To Earth's Ozone Layer, Douglas Hunter Ogden

Washington Law Review

From a deep sleep, I slowly open my eyes and roll off my foam mattress—the foam padding made with chlorofluorocarbons ("CFCs"). My feet touch the carpet-the underlay also made with CFCs. I stumble into the kitchen, to the refrigerator. With the summertime heat, the motor is working overtime. Its coolant, made of CFCs, is keeping my orange juice cold; the foam egg carton, also of CFCs, is keeping my eggs fresh. And there is my breakfast steak: resplendent in its CFC foam package. Time to get to work Jumping into the car, I land in the CFC foam cushion seat, …


An Opportunity To Be Heard: The Right To Counsel In A Deportation Hearing, David A. Robertson Oct 1988

An Opportunity To Be Heard: The Right To Counsel In A Deportation Hearing, David A. Robertson

Washington Law Review

This Comment explores the problems aliens in deportation hearings face in obtaining legal assistance under the current law. Our adversarial system of justice traditionally recognizes the need for participants to have the benefit of professional and knowledgeable legal assistance. Congress has given aliens a statutory right of access to counsel through the Immigration and Nationality Act ("INA"). This right, however, is not being uniformly extended to aliens in deportation hearings. Part of the problem is financial. Although aliens have a right to counsel, the INA does not provide government assistance for aliens unable to pay attorneys. The ultimate result is …


Privacy Regulation Of Computer-Assisted Testing And Instruction, Charles R. Tremper, Mark A. Small Oct 1988

Privacy Regulation Of Computer-Assisted Testing And Instruction, Charles R. Tremper, Mark A. Small

Washington Law Review

Using computers to assist in testing and instruction creates privacy concerns that were absent or less consequential prior to the computer age. Not only does computer-assisted testing and instruction (CATI) threaten to invade privacy insidiously, its use with young schoolchildren poses the additional threat of arresting development of their privacy expectations. In light of the significance of "reasonable expectations of privacy" in constitutional and tort law, as well as privacy's role in resisting totalitarianism, widespread and routine use of CATI may profoundly alter the balance between public and private realms.