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Articles 1261 - 1290 of 3365
Full-Text Articles in Law
Perpetuities: Basic Clarity, Muddled Reform, Robert L. Fletcher
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.
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
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 Ghosts Of Fishing Nets Past: A Proposal For Regulating Derelict Synthetic Fishing Nets, Eric J. Fjelstad
The Ghosts Of Fishing Nets Past: A Proposal For Regulating Derelict Synthetic Fishing Nets, Eric J. Fjelstad
Washington Law Review
This Comment examines the extent of the problem of derelict fishing nets. Derelict netting kills shocking numbers of marine life, including species protected by federal laws. International and domestic laws could be used to redress the problem. Laws as currently enforced each have shortcomings, however, and share common difficulties. To solve the problem these shortcomings create, a comprehensive derelict net control system must be instituted. This program should include a method of tracking nets so that liability for loss can be assessed, and incentive systems to decrease both intentional and unintentional loss of netting. Failure to institute derelict net controls …
Judicial Discipline And Due Process In Washington State—In Re Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), Stephen Hobbs
Judicial Discipline And Due Process In Washington State—In Re Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), Stephen Hobbs
Washington Law Review
This Note evaluates recent developments in Washington State concerning due process rights in judicial disciplinary proceedings. The focus is on In re Deming, a recent disciplinary case decided by the Washington Supreme Court. The analysis by the court in Deming highlights the conflict between the desire to discipline wayward judges and the need to protect the autonomy of the judiciary. The historical and procedural background of the Deming case is discussed first, and then three important procedural issues raised in the opinion are analyzed. The Note concludes that, although the court's broad due process holdings lack foundation, its specific procedural …
Legal Barriers In Child Abuse Investigations: State Powers And Individual Rights, Mark Hardin
Legal Barriers In Child Abuse Investigations: State Powers And Individual Rights, Mark Hardin
Washington Law Review
This article addresses the legal dimensions of an important and difficult problem sometimes faced by social workers employed with child protection agencies: noncooperation with investigations. This problem can arise when the child's family denies access to the home or the child, or when others, such as schools and health providers, decline to cooperate with the investigation. This article identifies the constitutionally based procedural requirements that are applicable to child abuse investigations. It then proposes specific legislative reforms consistent with these constitutional requirements. The discussion of procedural requirements for child protection proceedings necessarily considers whether existing criminal and administrative procedures apply …
The Ghosts Of Fishing Nets Past: A Proposal For Regulating Derelict Synthetic Fishing Nets, Eric J. Fjelstad
The Ghosts Of Fishing Nets Past: A Proposal For Regulating Derelict Synthetic Fishing Nets, Eric J. Fjelstad
Washington Law Review
This Comment examines the extent of the problem of derelict fishing nets. Derelict netting kills shocking numbers of marine life, including species protected by federal laws. International and domestic laws could be used to redress the problem. Laws as currently enforced each have shortcomings, however, and share common difficulties. To solve the problem these shortcomings create, a comprehensive derelict net control system must be instituted. This program should include a method of tracking nets so that liability for loss can be assessed, and incentive systems to decrease both intentional and unintentional loss of netting. Failure to institute derelict net controls …
Expanding Seller Liability Under The Securities Act Of Washington—Habermann V. Wppss, 109 Wash. 2d 107, 744 P.2d 1032 (1987), Barbara L. Schmidt
Expanding Seller Liability Under The Securities Act Of Washington—Habermann V. Wppss, 109 Wash. 2d 107, 744 P.2d 1032 (1987), Barbara L. Schmidt
Washington Law Review
The Washington Public Power Supply System's ("WPPSS") abandonment of two nuclear power projects led to the largest municipal bond default in American history. This default generated an unprecedented volume of securities litigation. Among the many court decisions handed down in the wake of the WPPSS fiasco was the Washington Supreme Court's decision in Haberman v. WPPSS. The Haberman court significantly expanded the civil liability provisions of the Securities Act of Washington ("WSA"). In Haberman, the court expressly included as a "seller" the bond issuer and implicitly suggested that professional consultants who provide services in conjunction with a bond issuance may …
Legal Barriers In Child Abuse Investigations: State Powers And Individual Rights, Mark Hardin
Legal Barriers In Child Abuse Investigations: State Powers And Individual Rights, Mark Hardin
Washington Law Review
This article addresses the legal dimensions of an important and difficult problem sometimes faced by social workers employed with child protection agencies: noncooperation with investigations. This problem can arise when the child's family denies access to the home or the child, or when others, such as schools and health providers, decline to cooperate with the investigation. This article identifies the constitutionally based procedural requirements that are applicable to child abuse investigations. It then proposes specific legislative reforms consistent with these constitutional requirements. The discussion of procedural requirements for child protection proceedings necessarily considers whether existing criminal and administrative procedures apply …
The Right To Require Performance In International Sales: Towards An International Interpretation Of The Vienna Convention, Amy H. Kastely
The Right To Require Performance In International Sales: Towards An International Interpretation Of The Vienna Convention, Amy H. Kastely
Washington Law Review
This Article will explore the remedial provisions of the Convention and some of the issues raised by the uneasy compromise over the right to require performance. Part I will describe the Convention's remedial provisions, illuminated by their drafting history. Part II will evaluate the ability of parties to vary these remedies, and will consider, in particular, the parties' ability to waive or require the remedy of specific performance contractually. A concluding section will offer some general observations regarding interpretation of the Sales Convention.
When Should The Trier Of Fact Determine The Validity Of Personal Injury Releases?—Bennett V. Shinoda Floral, Inc., 108 Wash. 2d 386, 739 P.2d 648 (1987), Robert A. Radcliffe
When Should The Trier Of Fact Determine The Validity Of Personal Injury Releases?—Bennett V. Shinoda Floral, Inc., 108 Wash. 2d 386, 739 P.2d 648 (1987), Robert A. Radcliffe
Washington Law Review
In Bennett v. Shinoda Floral, Inc., the Washington Supreme Court departed from a national trend toward flexibility in permitting avoidance of personal injury releases. The plaintiffs in Bennett had signed releases of all claims, known and unknown. The plaintiffs were unaware of the extent or consequences of their injuries, but they had signed knowing that the injuries were not yet healed. The court held that the releases were binding because the plaintiffs had assumed the risk of any unforeseen consequences. The Bennett opinion followed two lines of analysis. First, the court held that the validity of a release is an …
When Should The Trier Of Fact Determine The Validity Of Personal Injury Releases?—Bennett V. Shinoda Floral, Inc., 108 Wash. 2d 386, 739 P.2d 648 (1987), Robert A. Radcliffe
When Should The Trier Of Fact Determine The Validity Of Personal Injury Releases?—Bennett V. Shinoda Floral, Inc., 108 Wash. 2d 386, 739 P.2d 648 (1987), Robert A. Radcliffe
Washington Law Review
In Bennett v. Shinoda Floral, Inc., the Washington Supreme Court departed from a national trend toward flexibility in permitting avoidance of personal injury releases. The plaintiffs in Bennett had signed releases of all claims, known and unknown. The plaintiffs were unaware of the extent or consequences of their injuries, but they had signed knowing that the injuries were not yet healed. The court held that the releases were binding because the plaintiffs had assumed the risk of any unforeseen consequences. The Bennett opinion followed two lines of analysis. First, the court held that the validity of a release is …
The Right To Require Performance In International Sales: Towards An International Interpretation Of The Vienna Convention, Amy H. Kastely
The Right To Require Performance In International Sales: Towards An International Interpretation Of The Vienna Convention, Amy H. Kastely
Washington Law Review
This Article will explore the remedial provisions of the Convention and some of the issues raised by the uneasy compromise over the right to require performance. Part I will describe the Convention's remedial provisions, illuminated by their drafting history. Part II will evaluate the ability of parties to vary these remedies, and will consider, in particular, the parties' ability to waive or require the remedy of specific performance contractually. A concluding section will offer some general observations regarding interpretation of the Sales Convention.
Constitutional Challenges To Washington's Limit On Noneconomic Damages In Cases Of Personal Injury And Death, Marco De Sa E Silva
Constitutional Challenges To Washington's Limit On Noneconomic Damages In Cases Of Personal Injury And Death, Marco De Sa E Silva
Washington Law Review
This Comment considers the constitutionality of the Washington cap on noneconomic damages. The Comment briefly reviews the recent legislation of medical malpractice and tort reform damages ceilings and judicial decisions on the constitutionality of such ceilings. The Comment then analyzes the constitutionality of the Washington limit under the substantive due process and equal protection guarantees of the federal and state constitutions. Because under the federal constitution a court should give the statute only minimal scrutiny, the statute probably does not offend fourteenth amendment protections. Under the Washington Constitution, however, a court should give the statute intermediate scrutiny. Under intermediate scrutiny …
Aids Discrimination By Medical Care Providers: Is Washington Law An Adequate Remedy?, Joseph Reiner
Aids Discrimination By Medical Care Providers: Is Washington Law An Adequate Remedy?, Joseph Reiner
Washington Law Review
Discrimination against AIDS patients by medical care providers violates antidiscrimination law. In evaluating legal tools to enforce fair AIDS care, this Comment focuses primarily on the federal Rehabilitation Act of 1973, and Washington's recently amended antidiscrimination and public health law. Discriminatory acts are difficult to defend under these laws. Nonetheless, existing law is inadequate for combating AIDS discrimination because the law is underused by AIDS patients and vague. This Comment recommends expressly banning the common forms of medical care discrimination, and requiring heightened human immunodeficiency virus ("HIV") testing standards, as important steps towards creating effective AIDS antidiscrimination law.
Judicial Discipline And Due Process In Washington State—In Re Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), Stephen Hobbs
Judicial Discipline And Due Process In Washington State—In Re Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), Stephen Hobbs
Washington Law Review
This Note evaluates recent developments in Washington State concerning due process rights in judicial disciplinary proceedings. The focus is on In re Deming, a recent disciplinary case decided by the Washington Supreme Court. The analysis by the court in Deming highlights the conflict between the desire to discipline wayward judges and the need to protect the autonomy of the judiciary. The historical and procedural background of the Deming case is discussed first, and then three important procedural issues raised in the opinion are analyzed. The Note concludes that, although the court's broad due process holdings lack foundation, its specific …
Aids Discrimination By Medical Care Providers: Is Washington Law An Adequate Remedy?, Joseph Reiner
Aids Discrimination By Medical Care Providers: Is Washington Law An Adequate Remedy?, Joseph Reiner
Washington Law Review
Discrimination against AIDS patients by medical care providers violates antidiscrimination law. In evaluating legal tools to enforce fair AIDS care, this Comment focuses primarily on the federal Rehabilitation Act of 1973, and Washington's recently amended antidiscrimination and public health law. Discriminatory acts are difficult to defend under these laws. Nonetheless, existing law is inadequate for combating AIDS discrimination because the law is underused by AIDS patients and vague. This Comment recommends expressly banning the common forms of medical care discrimination, and requiring heightened human immunodeficiency virus ("HIV") testing standards, as important steps towards creating effective AIDS antidiscrimination law.
Expanding Seller Liability Under The Securities Act Of Washington—Habermann V. Wppss, 109 Wash. 2d 107, 744 P.2d 1032 (1987), Barbara L. Schmidt
Expanding Seller Liability Under The Securities Act Of Washington—Habermann V. Wppss, 109 Wash. 2d 107, 744 P.2d 1032 (1987), Barbara L. Schmidt
Washington Law Review
The Washington Public Power Supply System's ("WPPSS") abandonment of two nuclear power projects led to the largest municipal bond default in American history. This default generated an unprecedented volume of securities litigation. Among the many court decisions handed down in the wake of the WPPSS fiasco was the Washington Supreme Court's decision in Haberman v. WPPSS. The Haberman court significantly expanded the civil liability provisions of the Securities Act of Washington ("WSA"). In Haberman, the court expressly included as a "seller" the bond issuer and implicitly suggested that professional consultants who provide services in conjunction with a bond issuance may …
Constitutional Challenges To Washington's Limit On Noneconomic Damages In Cases Of Personal Injury And Death, Marco De Sa E Silva
Constitutional Challenges To Washington's Limit On Noneconomic Damages In Cases Of Personal Injury And Death, Marco De Sa E Silva
Washington Law Review
This Comment considers the constitutionality of the Washington cap on noneconomic damages. The Comment briefly reviews the recent legislation of medical malpractice and tort reform damages ceilings and judicial decisions on the constitutionality of such ceilings. The Comment then analyzes the constitutionality of the Washington limit under the substantive due process and equal protection guarantees of the federal and state constitutions. Because under the federal constitution a court should give the statute only minimal scrutiny, the statute probably does not offend fourteenth amendment protections. Under the Washington Constitution, however, a court should give the statute intermediate scrutiny. Under intermediate scrutiny …
Preventing Merchant Vessel Groundings By Enforcing A Professional Mariner Standard Of Care, Craig Howard Allen
Preventing Merchant Vessel Groundings By Enforcing A Professional Mariner Standard Of Care, Craig Howard Allen
Washington Law Review
Admiralty courts adjudicating claims arising from merchant vessel groundings or allisions are often required to allocate fault for the casualty among three possible parties: The officers and owner of the vessel, the vessel's embarked pilot, and the Coast Guard or any other governmental agency providing navigation services upon which the vessel operators relied. To determine fault, the court must evaluate each party's conduct under the appropriate standard of care. This Comment examines the standard of care applicable to merchant vessel officers and pilots. It concludes that some courts apply a standard to these mariners in determining liability that is less …
The Evaluation Of Legal Scholarship, Philip C. Kissam
The Evaluation Of Legal Scholarship, Philip C. Kissam
Washington Law Review
The evaluation process requires new perspectives to enhance our writing, reading, and formal evaluation of legal scholarship. The diversity of modern scholarship invites us to engage in a more flexible and more reflective reading and evaluation process that appreciates multiple perspectives and gives explicit attention to the different values, purposes, methods, and contexts of each individual work. This evaluation process would recognize and promote the legitimacy of pluralistic modes of research, analysis, and writing, thus improving the fairness of evaluations and possibly the quality of much contemporary scholarship. These improvements could affect both scholarship which is designed to assist legal …
Preventing Merchant Vessel Groundings By Enforcing A Professional Mariner Standard Of Care, Craig Howard Allen
Preventing Merchant Vessel Groundings By Enforcing A Professional Mariner Standard Of Care, Craig Howard Allen
Washington Law Review
Admiralty courts adjudicating claims arising from merchant vessel groundings or allisions are often required to allocate fault for the casualty among three possible parties: The officers and owner of the vessel, the vessel's embarked pilot, and the Coast Guard or any other governmental agency providing navigation services upon which the vessel operators relied. To determine fault, the court must evaluate each party's conduct under the appropriate standard of care. This Comment examines the standard of care applicable to merchant vessel officers and pilots. It concludes that some courts apply a standard to these mariners in determining liability that is less …
"Secular Humanism" And The Definition Of Religion: Extending A Modified "Ultimate Concern" Test To Mozert V. Hawkins County Public Schools And Smith V. Board Of School Commissioners, Craig A. Mason
Washington Law Review
This Comment defends an expansive definition of religion which is uniform under the establishment clause and under the free exercise clause. This Comment, to effect this expansion, constructs empirical indicators of religion for use in establishment clause cases. This proposed approach distinguishes science from values and philosophies, and only the latter two might be called "secular humanism." This distinction incorporates longstanding Supreme Court jurisprudence allowing the teaching of evolution." Expanding religious protection under the free exercise clause made a balancing approach necessary.'" Similarly, using an expansive definition of religion to broaden the scope of the establishment clause will require more …
"Secular Humanism" And The Definition Of Religion: Extending A Modified "Ultimate Concern" Test To Mozert V. Hawkins County Public Schools And Smith V. Board Of School Commissioners, Craig A. Mason
Washington Law Review
This Comment defends an expansive definition of religion which is uniform under the establishment clause and under the free exercise clause. This Comment, to effect this expansion, constructs empirical indicators of religion for use in establishment clause cases. This proposed approach distinguishes science from values and philosophies, and only the latter two might be called "secular humanism." This distinction incorporates longstanding Supreme Court jurisprudence allowing the teaching of evolution." Expanding religious protection under the free exercise clause made a balancing approach necessary.'" Similarly, using an expansive definition of religion to broaden the scope of the establishment clause will require more …
"Political Opinions" Of Refugees: Interpreting International Sources, Linda Dale Bevis
"Political Opinions" Of Refugees: Interpreting International Sources, Linda Dale Bevis
Washington Law Review
To receive asylum in the United States, persons must show that they are "refugees." They do so by demonstrating fear of persecution on account of political opinion, race, religion, nationality, or social group membership. The most common basis for an asylum claim is political opinion. However, there is no consistently applied interpretation of "persecution on account of political opinion" in United States law. An appropriate construction of the term would consider its development in the historical context of refugee law. This Comment explores the spirit of international instruments and interpretive materials, as well as United States legislative history behind the …
The Taxation Of Prizes And Awards—Tax Policy Winners And Losers, Bruce I. Kogan
The Taxation Of Prizes And Awards—Tax Policy Winners And Losers, Bruce I. Kogan
Washington Law Review
This article evaluates whether the recent emasculation of the exclusion for bona fide public achievement prizes or awards was justified. In order to accomplish the task, the article will begin by setting forth the applicable statutory provisions and tracing their historical development. Second, the policy implications of new section 74(b) will be analyzed in depth. Next, the article will offer an alternative that would effectively deal with the problem of compensatory employer to employee awards, while retaining the long standing policy of using tax incentives to encourage humanitarian or public contribution. The article concludes by arguing that Congress' shift to …
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Washington Law Review
By 1880 Congress had passed nearly 3000 statutes granting or regulating parts of the public domain. Administrative and judicial case loads increased correspondingly, as many thousands of claims had to be verified and recorded and growing numbers of disputes adjudicated. This article recalls an early far-west chapter of the story, a remarkable series of decisions by Oregon federal district Judge Matthew P. Deady interpreting the cornerstone of Pacific Northwest public land law, the 1850 Oregon Donation Act. Although Deady decided other public land law questions as well, it is his Donation Act decisions helping to determine ownership of the Portland …
Attorney's Fee Contingency Enhancements: Toward A Complete Incentive To Litigate Under Federal Fee-Shifting Statutes—Pennsylvania V. Delaware Valley Citizens' Council For Clean Air, 107 S. Ct. 3078 (1987), Arthur J. Lachman
Washington Law Review
Federal fee-shifting statutes generally allow trial courts to award "reasonable" attorney's fees to prevailing parties in order to promote private enforcement of Congressional statutory directives. The starting point for the computation of fee awards under the fee-shifting statutes is the "lodestar" amount. The "lodestar" amount is defined as the reasonable number of hours spent by the attorney on the case multiplied by a reasonable hourly rate. Trial courts, in their discretion, have then enhanced the lodestar amount based on a variety of factors, including the quality of representation, delay in receiving payment, and contingency. Contingency is defined as the risk …
The Evaluation Of Legal Scholarship, Philip C. Kissam
The Evaluation Of Legal Scholarship, Philip C. Kissam
Washington Law Review
The evaluation process requires new perspectives to enhance our writing, reading, and formal evaluation of legal scholarship. The diversity of modern scholarship invites us to engage in a more flexible and more reflective reading and evaluation process that appreciates multiple perspectives and gives explicit attention to the different values, purposes, methods, and contexts of each individual work. This evaluation process would recognize and promote the legitimacy of pluralistic modes of research, analysis, and writing, thus improving the fairness of evaluations and possibly the quality of much contemporary scholarship. These improvements could affect both scholarship which is designed to assist legal …
The Taxation Of Prizes And Awards—Tax Policy Winners And Losers, Bruce I. Kogan
The Taxation Of Prizes And Awards—Tax Policy Winners And Losers, Bruce I. Kogan
Washington Law Review
This article evaluates whether the recent emasculation of the exclusion for bona fide public achievement prizes or awards was justified. In order to accomplish the task, the article will begin by setting forth the applicable statutory provisions and tracing their historical development. Second, the policy implications of new section 74(b) will be analyzed in depth. Next, the article will offer an alternative that would effectively deal with the problem of compensatory employer to employee awards, while retaining the long standing policy of using tax incentives to encourage humanitarian or public contribution. The article concludes by arguing that Congress' shift to …
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Washington Law Review
By 1880 Congress had passed nearly 3000 statutes granting or regulating parts of the public domain. Administrative and judicial case loads increased correspondingly, as many thousands of claims had to be verified and recorded and growing numbers of disputes adjudicated. This article recalls an early far-west chapter of the story, a remarkable series of decisions by Oregon federal district Judge Matthew P. Deady interpreting the cornerstone of Pacific Northwest public land law, the 1850 Oregon Donation Act. Although Deady decided other public land law questions as well, it is his Donation Act decisions helping to determine ownership of the Portland …