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Articles 1381 - 1410 of 3365
Full-Text Articles in Law
Informed Consent In The Prescription Drug Context: The Special Case, Gerald F. Tietz
Informed Consent In The Prescription Drug Context: The Special Case, Gerald F. Tietz
Washington Law Review
Evaluation of the general doctrine of informed consent is the starting point for determining whether, and how, the doctrine might apply to prescription drug therapy. This article demonstrates that, unlike the decision to undergo surgery (the more typical informed consent situation), the process of prescribing drugs contains numerous considerations, many of which are inherent in and unique to prescription drug therapy. The presence of these considerations dictates that courts accord even greater significance to the need for patient participation in prescription drug therapy than that accorded in the more typical consent to surgery situation. Moreover, in light of the many …
Ensuring The Credibility Of United States Food Aid: Proposals For Insulating The Food Security Wheat Reserve From Economic Influences, Ann Marie Neugebauer
Ensuring The Credibility Of United States Food Aid: Proposals For Insulating The Food Security Wheat Reserve From Economic Influences, Ann Marie Neugebauer
Washington Law Review
This Comment proposes and evaluates two amendments to the legislation governing the emergency reserve that would help insulate the reserve from the market. Insulation can be accomplished by creating and protecting certain contract rights of the farmer/vendor against the United States government. The farmer could enforce those rights if the government released the reserve for purposes other than urgent humanitarian food aid. The Appendix contains proposed legislation which creates and protects such remedies. These proposals should contribute positively to public policy debate over methods of ensuring world food security. However, this Comment considers only the legal viability, not the political …
Construing The Pelly And Packwood-Magnuson Amendments: The D.C. Circuit Court Harpoons Executive Discretion—American Cetacean Society V. Baldridge, 768 F.2d 425 (D.C. Cir. 1985), Cert. Granted Sub Nom. Japan Whaling Association V. American Cetacean Society, 106 S. Ct. 787 (1986) (Nos. 85-954, 955), Erin K. Flory
Washington Law Review
The court declared that the Secretary of Commerce has no discretion to refuse certifying the Japanese for exceeding the IWC sperm whaling quota. The court permanently enjoined the Secretary from agreeing not to certify, and from failing to certify, any Japanese whaling activities exceeding IWC quotas. The court ordered the Secretary to certify the Japanese sperm whaling under both the Pelly and the Packwood-Magnuson Amendments. On appeal, the District of Columbia Circuit Court of Appeals affirmed the district court decision on slightly different grounds. The Supreme Court granted certiorari and will hear the case during the 1985-86 term. A careful …
Aid Or Obstruction? Government Regulation Of Cable Television Meets The First Amendment—Preferred Communications, Inc. V. City Of Los Angeles, 754 F.2d 1396 (9th Cir.), Affirmed In Part And Remanded, 54 U.S.L.W. 4542 (U.S. June 3, 1986) (No. 85-390), Robert G. Mitchell
Washington Law Review
In Preferred Communications, Inc. v. City of Los Angeles, the Ninth Circuit became the first circuit to limit, on first amendment grounds, a city's ability to deny a cable television company access to a local market. The Supreme Court's resolution of issues raised in Preferred Communications will have far-reaching impact, particularly with regard to the government's power to minimize the impact of cable television systems on government property and eliminate economic waste through duplicative service. This Note will examine the Ninth Circuit's use of the public forum doctrine in determining Los Angeles' power to restrict the use of its utility …
Extending Legal Malpractice Liability To Nonclients—The Washington Supreme Court Considers The Privity Requirement—Bowman V. John Doe Two, 104 Wn. 2d 181, 704 P.2d 140 (1985), Scott Peterson
Washington Law Review
In Bowman v. John Doe Two, the Washington Supreme Court considered whether an attorney owes a duty of reasonable care to a third party in the absence of privity of contract. The attorney in Bowman represented a seventeen-year-old boy in juvenile court against charges brought by his mother. The boy's mother subsequently sued the attorney for acts of professional negligence that allegedly resulted in injury to the parent-child relationship. The court in Bowman held that the attorney owed no duty to the parent. However, dicta in the opinion indicates that the privity requirement may soon be relaxed in Washington. The …
The Washington Real Estate Contract Forfeiture Act, Linda S. Hume
The Washington Real Estate Contract Forfeiture Act, Linda S. Hume
Washington Law Review
The Real Estate Contract Forfeiture Act (the Act), which became effective January 1, 1986, creates a nonjudicial procedure for forfeiture of the purchaser's interest in a real estate contract that terminates the purchaser's rights in the contract and in the real property that is the subject matter of the contract. Compliance with the Act's procedures should clear the seller's title to the property. The Act represents a significant departure from common law forfeiture procedures. This discussion will trace the origins of the Act, explain its basic design and purpose, and indicate where the Act changes or parallels the prior common …
Lawyer Advertising, Tim J. Filer
Lawyer Advertising, Tim J. Filer
Washington Law Review
This Survey Comment will give a brief synthesis of the constitutional law underlying the area of attorney advertising, and take a more detailed look at the Zauderer decision. While an overview of the Washington Rules has been given elsewhere in this issue, the primary focus of this comment will be on how the rules meet, and fall short of, the constitutional standards clarified in Zauderer. In particular, the prohibition of direct mail contact with specific persons known to need legal services in a specific matter appears to be unconstitutional. Additionally, the Washington rule limiting the use of trade names may …
Comparable Worth Claims Under Title Vii: Does The Evidence Support An Inference Of Discriminatory Intent?—American Federation Of State, County, And Municipal Employees V. Washington, 770 F.2d 1401 (9th Cir. 1985), Brendan Mangan
Washington Law Review
This Note suggests that comparable worth theory, as a means of proving discrimination under Title VII, has been fully explored and charted, and observes that comparable worth claims have gained virtually no ground in legal battles against sex-based wage discrimination. Where courts have upheld such claims, their decisions have turned on the accompanying evidence of discriminatory intent, rather than on the inference of intent drawn from comparable worth studies. Moreover, since many factors provide plausible explanations of wage differentials, courts are correct in rejecting comparable worth claims that are unsupported by additional evidence of intentional discrimination. The Ninth Circuit was …
The Waiver Of Immunity In The Equal Access To Justice Act: Clarifying Opaque Language, Arlene S. Ragozin
The Waiver Of Immunity In The Equal Access To Justice Act: Clarifying Opaque Language, Arlene S. Ragozin
Washington Law Review
This Comment first summarizes the relevant statutes and key judicial opinions in the section 2412(b) controversy. It then analyzes the disputed text, the impact of alternative textual interpretations on the EAJA as a whole, congressional intent as revealed by the Act's legislative history, and the potential limitations created by the doctrine of sovereign immunity. This Comment argues that the text of the Act creates a presumption that section 2412(b) imposes liability for attorneys' fees on the United States when the government commits an act which would impose such liability on another party. None of the other factors analyzed rebut the …
Defining A Fourth Amendment Search: A Critique Of The Supreme Court's Post-Katz Jurisprudence, Michael Campbell
Defining A Fourth Amendment Search: A Critique Of The Supreme Court's Post-Katz Jurisprudence, Michael Campbell
Washington Law Review
This Comment attributes the inadequacies of the Burger Court's application of Katz to that Court's identification of an interest in privacy with an interest in the secrecy of information. An interest in privacy, however, should more properly be defined as an interest in being left alone. Accordingly, this Comment proposes that a search be defined by reference to the conduct of the government, rather than by reference to the information uncovered by that conduct. Specifically, a search should be defined as conduct that violates a social norm of privacy. Such a definition of search would have several beneficial consequences. Among …
Federal And State Securities Claims: Litigation Or Arbitration?—Dean Witter Reynolds, Inc. V. Byrd, 105 S. Ct. 1238 (1985), Sherrie Kaiser Goff
Federal And State Securities Claims: Litigation Or Arbitration?—Dean Witter Reynolds, Inc. V. Byrd, 105 S. Ct. 1238 (1985), Sherrie Kaiser Goff
Washington Law Review
This Note analyzes Byrd in light of the dilemma that occurs when federal and state claims arise in the same action. The Note concludes that, although Byrd may be a step in the right direction, the current state of the law is still not satisfactory. Because arbitration offers several advantages to the investor, this Note argues that both federal and state securities claims should be arbitrated. The Note suggests that either Congress change the law to allow arbitration of the federal claims, as Justice White proposed, or the Court allow arbitration of section 10(b) claims, or even of claims brought …
Law And Alaska Natives: The Warp And Woof Of A Field Of Law In Transition, Ralph W. Johnson
Law And Alaska Natives: The Warp And Woof Of A Field Of Law In Transition, Ralph W. Johnson
Washington Law Review
A book review of Alaska Natives and American Laws, by David Case (1984).
Divorce, Taxes, And The 1984 Tax Reform Act: An Inadequate Response To An Old Problem, Roland L. Hjorth
Divorce, Taxes, And The 1984 Tax Reform Act: An Inadequate Response To An Old Problem, Roland L. Hjorth
Washington Law Review
This article analyzes in detail the provisions of the 1984 Tax Reform Act relating to property settlements and cash payments made pursuant to divorce. It concludes that the provisions relating to property settlements are, on balance, beneficial, but that the changes relating to alimony and child support are almost totally devoid of merit. The article recommends that sections 71 and 215 be amended to provide that all cash payments made pursuant to divorce should be income to the recipient if those payments meet the formal requirements of new section 71(b). Even if the payments are income to the recipient, however, …
The Community Property Law In Washington (Revised 1985), Harry M. Cross
The Community Property Law In Washington (Revised 1985), Harry M. Cross
Washington Law Review
The author has twice previously summarized the community property law of Washington. In the eleven years since the most recent effort there have been enough changes to warrant a repetition of the task. Much of the discussion in the 1974 article is still appropriate, needing only reference to any later cases; accordingly, some parts of this article will essentially be an updated and revised version of the earlier article. There are also areas, however, in which the more recent cases prompt a new, more extensive, or modified analysis. The article undertakes that new analysis as well as incorporating the appropriately …
State Lending Of Credit—New Analysis Of State Constitutional Prohibitions—Washington Higher Education Facilities Authority V. Gardner, 103 Wn. 2d 838, 699 P.2d 1240 (1985), Carol Sue Hunting
State Lending Of Credit—New Analysis Of State Constitutional Prohibitions—Washington Higher Education Facilities Authority V. Gardner, 103 Wn. 2d 838, 699 P.2d 1240 (1985), Carol Sue Hunting
Washington Law Review
In Washington Higher Education Facilities Authority (WHEFA) v. Gardner, the Washington Supreme Court held that the issuance of nonrecourse bonds by WHEFA to finance building construction at private higher education institutions was permissible under article 8, section 5 of the Washington Constitution. The opinion rectifies earlier contrary decisions by making clear that the issuance of nonrecourse bonds is not constitutionally prohibited. The court, however, in reaching this conclusion, adopted a new literal interpretation of the constitutional language, which may restrict the court's future analysis of lending of credit issues by unnecessarily precluding policy considerations. Although the court's analysis adequately supported …
New Limits To The Application Of The Consumer Protection Act—State V. Schwab, 103 Wn. 542, 693 P.2d 108 (1985), Lora L. Pesto
New Limits To The Application Of The Consumer Protection Act—State V. Schwab, 103 Wn. 542, 693 P.2d 108 (1985), Lora L. Pesto
Washington Law Review
In State v. Schwab, the Washington Supreme Court removed residential landlord-tenant transactions from the purview of the Washington Consumer Protection Act (CPA). Under Schwab, litigants may no longer invoke the generous remedial provisions of the CPA to enforce tenants' rights granted by the Residential Landlord-Tenant Act. Schwab also eliminated state prosecution of residential landlord-tenant actions. The reasoning used by the court could prevent the application of the CPA to new areas of commerce, and may also limit its application in areas where it previously has been considered fully applicable.
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Washington Law Review
This Comment analyzes the approaches of the courts of appeals to the confidential source exemption. First, the Comment presents a brief history of the Freedom of Information Act and the development of exemption 7(D) in Congress and the courts. The Comment explains and criticizes the conflicting judicial treatment of the agency's burden under the exemption. Finally, the Comment proposes a uniform approach to the agency burden that is consistent with the policies underlying both the Act and the exemption.
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Washington Law Review
Federal regulation of securities traditionally, and almost unquestioningly, has included regulation of the press. Central to governance of the investment marketplace are systems of prior restraint and mandatory disclosure premised upon investor protection but antithetical to first amendment principles. The constitutionality of those systems largely has been uncontested. Since commercial speech has emerged as a protected form of expression, however, it is fitting to assess the compatibility of securities regulation with the first amendment.
Statutory Liens On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Statutory Liens On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Washington Law Review
The Washington Supreme Court has recently ruled that the federal Maritime Lien Act preempts state lien law. In Farwest Steel Corp. v. DeSantis, the court held, specifically, that the Maritime Lien Act preempts the state chattel lien and "boat lien" statutes. While the Farwest Steel holding seems to state the obvious, the limits of federal preemption are far from clear. Federal law does not allocate all of the risks involved in building, outfitting, financing, servicing, repairing, and retiring Blackship. The statutes "preempted" in Farwest Steel still provide the only available law for many transactions involving Blackship in Washington. …
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Washington Law Review
In American Federation of Labor-Congress of Industrial Organizations v. Eu (AFL-CIO), the California Supreme Court removed a proposed initiative from the ballot prior to the election. The proposed initiative would have compelled the California legislature to apply.to Congress for a limited constitutional convention. The court recognized a general rule against pre-election review of initiatives, but nevertheless found pre-election review appropriate under an exception to the rule. The exception invoked in AFL-CIO allows pre-election review where the challenger alleges that the proposed measure is "beyond the power of the people to enact." This Note analyzes the AFL-CIO court's exercise of pre-election …
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Washington Law Review
Since its creation in 1971, the Washington special inquiry judge procedure has operated virtually without constitutional challenge. However, the recent case of State v. Neslund raised the issue of whether a special inquiry judge can properly act as a neutral and detached magistrate to issue search warrants. The United States Constitution and the Washington State Constitution set forth basic guarantees of privacy and fairness, including the right to be free from unreasonable searches and seizures. Generally a "reasonable" search must be accompanied by a search warrant issued upon a determination of probable cause by a neutral and detached magistrate. This …
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Washington Law Review
The preclusive effect of a judgment is an age-old topic. Why then add more to the existing commentary? Principally, it is because within recent years there have been noteworthy cases and significant developments in the governing principles. The purposes of this article are to recall the orthodoxy of the subject, to note the changes that have been occurring, and to suggest what may be forthcoming.
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Securities Regulation And Freedom Of The Press: Toward A Marketplace Of Ideas In The Marketplace Of Investment, Donald E. Lively
Washington Law Review
Federal regulation of securities traditionally, and almost unquestioningly, has included regulation of the press. Central to governance of the investment marketplace are systems of prior restraint and mandatory disclosure premised upon investor protection but antithetical to first amendment principles. The constitutionality of those systems largely has been uncontested. Since commercial speech has emerged as a protected form of expression, however, it is fitting to assess the compatibility of securities regulation with the first amendment.
Patent Infringement: Redefining The "Making" Standard To Include Partial Assemblies—Paper Converting Machine Co. V. Magna-Graphics Corp., 745 F.2d 11 (Fed. Cir. 1984), Stuart Watt
Washington Law Review
In Paper Converting Machine Co. v. Magna-Graphics Corp., the Federal Circuit rejected the traditional operable assembly standard for determining a "making." In its place, the court adopted a more flexible standard that included partial assemblies that have no significant noninfringing purpose. This test for infringement significantly broadens patent protection and further restricts the permissible activity of competitors allowed during the patent term. The court's standard grants the patent owner a de facto monopoly beyond the expiration date by restricting competitors from making preparations to enter the market after the patent expires. The decision represents a movement by the Federal Circuit …
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Washington Law Review
In American Federation of Labor-Congress of Industrial Organizations v. Eu (AFL-CIO), the California Supreme Court removed a proposed initiative from the ballot prior to the election. The proposed initiative would have compelled the California legislature to apply.to Congress for a limited constitutional convention. The court recognized a general rule against pre-election review of initiatives, but nevertheless found pre-election review appropriate under an exception to the rule. The exception invoked in AFL-CIO allows pre-election review where the challenger alleges that the proposed measure is "beyond the power of the people to enact." This Note analyzes the AFL-CIO court's exercise of pre-election …
Washington Lawyers Under The Purview Of The State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short V. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984), Jeffrey M. Koontz
Washington Lawyers Under The Purview Of The State Consumer Protection Act—The "Entrepreneurial Aspects" Solution—Short V. Demopolis, 103 Wn. 2d 52, 691 P.2d 163 (1984), Jeffrey M. Koontz
Washington Law Review
In Short v. Demopolis the Washington Supreme Court held that certain "entrepreneurial aspects" of the practice of law constitute "trade or commerce" for purposes of RCW 19.86, Washington's consumer protection and antitrust law. This holding brings members of the legal community under antitrust and consumer protection scrutiny as embodied in the Consumer Protection Act (CPA). The Demopolis decision, however, only applies to the "entrepreneurial aspects" of the practice of law. Although many courts and commentators have struggled with the question of whether professionals should be given preferential treatment, the Washington court is the first to specifically exclude legal malpractice from …
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright
Washington Law Review
Since its creation in 1971, the Washington special inquiry judge procedure has operated virtually without constitutional challenge. However, the recent case of State v. Neslund raised the issue of whether a special inquiry judge can properly act as a neutral and detached magistrate to issue search warrants. The United States Constitution and the Washington State Constitution set forth basic guarantees of privacy and fairness, including the right to be free from unreasonable searches and seizures. Generally a "reasonable" search must be accompanied by a search warrant issued upon a determination of probable cause by a neutral and detached magistrate. This …
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman
Washington Law Review
The preclusive effect of a judgment is an age-old topic. Why then add more to the existing commentary? Principally, it is because within recent years there have been noteworthy cases and significant developments in the governing principles. The purposes of this article are to recall the orthodoxy of the subject, to note the changes that have been occurring, and to suggest what may be forthcoming.
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Meeting The Agency Burden Under The Confidential Source Exemption To The Freedom Of Information Act, Judith A. Bigelow
Washington Law Review
This Comment analyzes the approaches of the courts of appeals to the confidential source exemption. First, the Comment presents a brief history of the Freedom of Information Act and the development of exemption 7(D) in Congress and the courts. The Comment explains and criticizes the conflicting judicial treatment of the agency's burden under the exemption. Finally, the Comment proposes a uniform approach to the agency burden that is consistent with the policies underlying both the Act and the exemption.
Patent Infringement: Redefining The "Making" Standard To Include Partial Assemblies—Paper Converting Machine Co. V. Magna-Graphics Corp., 745 F.2d 11 (Fed. Cir. 1984), Stuart Watt
Washington Law Review
In Paper Converting Machine Co. v. Magna-Graphics Corp., the Federal Circuit rejected the traditional operable assembly standard for determining a "making." In its place, the court adopted a more flexible standard that included partial assemblies that have no significant noninfringing purpose. This test for infringement significantly broadens patent protection and further restricts the permissible activity of competitors allowed during the patent term. The court's standard grants the patent owner a de facto monopoly beyond the expiration date by restricting competitors from making preparations to enter the market after the patent expires. The decision represents a movement by the Federal Circuit …