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Articles 1411 - 1440 of 3365
Full-Text Articles in Law
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 …
Statutory Liends On Vessels In Washington: When Does State Law Govern Liens On Blackship?, Lynn B. Squires
Statutory Liends 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. The major …
Increased Risk Of Disease From Hazardous Waste: A Proposal For Judicial Relief, Brent Carson
Increased Risk Of Disease From Hazardous Waste: A Proposal For Judicial Relief, Brent Carson
Washington Law Review
This Comment addresses the need to provide adequate and present remedies for individuals exposed to toxic wastes. Part I describes the prevailing "reasonable medical certainty" rule and shows how it unjustly prevents recovery by plaintiffs exposed to hazardous waste. Part II examines one method of avoiding the injustice of the "reasonable medical certainty" rule. The adoption of an "extent of the injury" rule would allow courts to recognize genetic or cellular damage as injury, and provide some hazardous waste victims with a remedy for their increased risk of disease. In Part III a better solution is proposed—accepting increased risk as …
Unused Riparian Water Rights In Washington—Department Of Ecology V. Abbott, 103 Wn. 2d 686, 694 P.2d 1071 (1985), Lynn B. Squires
Unused Riparian Water Rights In Washington—Department Of Ecology V. Abbott, 103 Wn. 2d 686, 694 P.2d 1071 (1985), Lynn B. Squires
Washington Law Review
In Department of Ecology v. Abbott, the Washington Supreme Court addressed the long-standing question of whether landowners who failed to exercise consumptive riparian rights3 within a reasonable period after the adoption of the Water Code of 1917 (1917 Code) lost those rights. The question arose when a riparian landowner, who had registered consumptive water rights as required by statute in 1971, was denied those rights in a 1982 stream adjudication. The basis for the denial was that the landowner's riparian rights had not been continuously exercised since 1917. The Water Rights Registration Act, with which the landowner complied in 1971, …
Anatomy Of Legal Education (Report Of The Tunks Committee): The Way We Were And The Way We Are, Afton Dekanal
Anatomy Of Legal Education (Report Of The Tunks Committee): The Way We Were And The Way We Are, Afton Dekanal
Washington Law Review
Lehan K. Tunks, then Dean of Rutgers Law School in Newark, chaired an Association of American Law Schools Committee on Law School Administration and University Relations that conducted "an inquiry into the adequacy and mobilization of the financial and human resources in American law schools for research and education for the legal profession...." The study, begun in 1955, resulted in a 1961 report, Anatomy of Modern Legal Education, examining the 1956-57 operation of the 129 law schools then on the American Bar Association's approved list. A 146-page questionnaire answered by the dean of each school and a shorter questionnaire answered …
Patriation Of The Canadian Constitution: Comparative Federalism In A New Context, William C. Hodge
Patriation Of The Canadian Constitution: Comparative Federalism In A New Context, William C. Hodge
Washington Law Review
The Canadian constitution, also known as the British North America Act, 1867, has been "patriated." Of that bundle of sticks that, fastened together, constitute sovereign autonomy, a significant few continued to rest with the British Parliament until 1982—a condition the Canadians found humiliating and the British embarrassing. With the passage of the Canada Act by the Parliament of the United Kingdom on March 29, 1982, and with royal approval, the Canadians became masters of their own house, having gained complete internal powers of constitutional amendment. But an equally important constitutional event was the process of patriation itself inasmuch as it …
The Scope Of Judicial Review Of Agency Actions In Washington Revisited—Doctrine, Analysis, And Proposed Revisions, Tim J. Filer
The Scope Of Judicial Review Of Agency Actions In Washington Revisited—Doctrine, Analysis, And Proposed Revisions, Tim J. Filer
Washington Law Review
This Comment analyzes current Washington law on the scope of judicial review, and compares it to recently proposed revisions to the Washington Administrative Procedure Act (APA). Part I discusses the doctrine surrounding the review of agency actions by Washington courts. Part II examines Washington case law and identifies several elements that determine the intensity with which the court will examine a particular agency action, regardless of the doctrinally prescribed deference. Part III compares and discusses the proposed revisions to the Washington APA. While based primarily on the latest Model State APA, 6 the proposed revisions contain some significant variations. The …
The Outward Limit Of The Department Of Interior's Authority Over Submerged Lands—The Effect Of Customary International Law On The Outer Continental Shelf Lands Act, Donna Darm
Washington Law Review
After briefly establishing the relevant background of the controversy, this Comment suggests that neither the President's proclamation nor the new customary law of the EEZ operates to change domestic law and concludes that DOI's claim exceeds its authority under domestic law.
Separation Of Powers And Adjudication Of Human Rights Clalims Under The Alien Tort Claims Act—Hanoch Tel-Oren V. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), Cert. Denied, 105 S. Ct. 1354 (1985), Laura Wishik
Washington Law Review
This Note examines the opinions in Tel-Oren that relied upon separation of powers principles to foreclose adjudication of section 1350 suits. The Note explores the underlying reasons for advocating judicial deference on foreign affairs issues. Judge Robb's application of the political question doctrine to Tel-Oren, and Judge Bork's use of both the political question and act of state doctrines as evidence of separation of powers principles that require judicial abstention, are analyzed in detail. Alternative principles that limit jurisdiction over such claims are examined, including the act of state doctrine, sovereign immunity, forum non conveniens, and the evidence required to …
Antitrust And Nonmarket Goods: The Supreme Court Fumbles Again—National Collegiate Athletic Association V. Board Of Regents, 104 S. Ct. 2948 (1984), Jonathan E. Seib
Antitrust And Nonmarket Goods: The Supreme Court Fumbles Again—National Collegiate Athletic Association V. Board Of Regents, 104 S. Ct. 2948 (1984), Jonathan E. Seib
Washington Law Review
In National Collegiate Athletic Association v. Board of Regents, the Supreme Court held that the NCAA's regulations restricting television broadcasts of college football games violated section one of the Sherman Antitrust Act. The result stemmed primarily from the Court's conclusion that the regulations did not promote their asserted purposes. However, the crucial aspect of the opinion is that, contrary to what precedent would suggest, the Court determined that the NCAA's purposes were legitimate in the first place. This Note addresses the question of why the NCAA Court reasoned the way it did and examines the means by which it arrived …
State Law In Federal Courts: The Implications Of De Novo Review—In Re Mclinn, 739 F.2d 1395 (9th Cir. 1984), Wendy E. Russell
State Law In Federal Courts: The Implications Of De Novo Review—In Re Mclinn, 739 F.2d 1395 (9th Cir. 1984), Wendy E. Russell
Washington Law Review
In In re McLinn, the Ninth Circuit Court of Appeals rejected this traditional reliance on the district court's determination of state law and held that issues of state law in federal court will be reviewed under a new, de novo standard. The McLinn case reveals a dilemma in the treatment of state law in federal courts. The Erie doctrine requires federal courts to ascertain and apply state law, and gives them a broad responsibility for doing so. At the same time federal courts are unable to accurately predict and apply unresolved issues of state law. This Note discusses the doctrine …
The Demise Of The Intra-Enterprise Conspiracy Doctine: Flexible Antitrust Enforcement Policy Abandoned In A Maze Of Economic Certainty—Copperweld Corp. V. Independence Tube Corp., 104 S. Ct. 2731 (1984), S. John Goodwin
Washington Law Review
In Copperweld Corp. v. Independence Tube Corp. the United States Supreme Court held that corporations and their wholly owned subsidiaries cannot conspire and, thus, cannot violate section 1 of the Sherman Act. The decision signals an important shift in interpretation of the Sherman Act. Before Copperweld, corporations and their wholly owned subsidiaries were subject to conspiratorial liability under the Act. The Supreme Court had recognized intra-enterprise conspiracies on at least six occasions. Despite their diverging views on how broadly the doctrine was to be interpreted, the federal courts of appeals had unanimously applied the doctrine. The Court implicitly addressed the …
Practice Of Law: Real Estate Brokers Authorized To Complete Transaction Forms—Cultum V. Heritage House Realtors, Inc., 103 Wn. 2d 623, 694 P.2d 630 (1985), Mark Reeve
Washington Law Review
In Cultum v. Heritage House Realtors, Inc., the Washington Supreme Court carved out a limited exception to the statutory prohibition against the unauthorized practice of law. This new exception represents a proper balancing of the interests of real estate brokers, lawyers and the public. However, flaws in the majority's reasoning may lead to confusion in the future application of the ruling unless greater attention is paid to the underlying rationale of the decision and the arguments made by the concurrence.
The Criminal Justice System's Response To Battering: Understanding The Problem, Forging The Solutions, Kathleen Waits
The Criminal Justice System's Response To Battering: Understanding The Problem, Forging The Solutions, Kathleen Waits
Washington Law Review
This article will focus on the appropriate criminal justice response to battering. Part II describes the nature of the problem of wife beating. It first discusses the extent of abuse in America to demonstrate the seriousness of the problem and the urgent need for solutions. The remainder of Part II looks at the issue on a more individual basis. It examines the battered woman, the batterer, the battering relationship, and the effects of abuse on the couple's children. An understanding of the participants and their relationship, unencumbered by the many myths that surround battering, is essential to creating effective legal …
A Proposal To End Nlrb Deferral To The Arbitration Process, Cornelius J. Peck
A Proposal To End Nlrb Deferral To The Arbitration Process, Cornelius J. Peck
Washington Law Review
In January 1984 the NLRB, reconstituted by President Reagan's appointees, announced significant changes in the Board's policies concerning deferral to the arbitration processes established by employers and unions in their collective bargaining agreements. The new policies are redolent with the politics of a changed administration rather than expertise in labor relations. The changes continue the Board's uncertain treatment of the relationship between its jurisdiction to prevent unfair labor practices and arbitrators' decisions concerning collective bargaining agreements. The newly announced policies are consistent with the conviction that the federal government should sharply reduce its regulatory activities, transferring its previous responsibilities to …
Civil Rico And The Prior Criminal Conviction Requirement: Has The Second Circuit Drawn The Net Too Tightly?—Sedima, S.P.R.L. V. Imrex Co., 741 F.2d 482 (2d Cir. 1984), Cert. Granted, 53 U.S.L.W. 3506 (U.S. Jan. 14, 1985) (No. 84-648), Diana K. Carey
Washington Law Review
This Note analyzes the Second Circuit's decision in Sedima against the background of the explosion of civil RICO suits and judicial attempts to contain that explosion. It concludes that courts should reject the prior criminal conviction requirement. The requirement is unsupported by either the language or the legislative history of the act, and in practice the requirement would frustrate legislative purposes and deny recovery to those victims whom Congress intended the act should compensate. Moreover, the requirement nullifies the purpose of the private attorney general concept. Until Congress acts to redefine the statute, other limitations would create more desirable results …
Equitable Interest In Enhanced Earning Capacity: The Treatment Of A Professional Degree At Dissolution—In Re Marriage Of Washburn, 101 Wn. 2d 168, 677 P.2d 152 (1984), Helen A. Boyer
Washington Law Review
The Washington Supreme Court addressed this problem in In re Marriage of Washburn. The court held that a supporting spouse should be compensated for contributing to the attainment of a student spouse's degree. The court stated that such a contribution is a factor that trial courts must consider in dividing property or in awarding maintenance. It also held that trial courts must consider the future earning prospects of each spouse in making an award. Nonetheless, the court affirmed an award that was limited to restitution of direct expenditures and opportunity costs. A vigorous dissent argued that a professional degree is …
Qualified Common Law Privilege For News Reporters In Criminal Cases—State V. Rinaldo, 102 Wn. 2d 749, 689 P.2d 392 (1984), Susan Ward
Washington Law Review
In State v. Rinaldo, the Washington Supreme Court extended the news reporter's qualified common law privilege to criminal cases. This extension will adequately protect most confidential information held by reporters. In some cases, however, defendants will be able to defeat the qualified privilege announced in Rinaldo. The Washington courts should then construe article 1, section 5 of the Washington State Constitution to require in camera inspection of the information sought. The trial judge should order disclosure only upon concluding that the defendant's interest in obtaining the information outweighs the news reporter's interest in confidentiality.
Notes On The Reliance Interest, Robert Birmingham
Notes On The Reliance Interest, Robert Birmingham
Washington Law Review
The topic is Contract Damages. The interests are defined by how we protect them. Imagine a breaching promisor. We protect the reliance interest of the promisee by requiring the promisor to put her in a position as good as she would have been in had the parties not contracted. The other interests are the restitution interest, which we protect by requiring the promisor to give back what the promisee has given him; and the expectation interest, which we protect by requiring the promisor to put the promisee in a position as good as she would have been in had he …
Historical Truth, Narrative Truth, And Expert Testimony, Marianne Wesson
Historical Truth, Narrative Truth, And Expert Testimony, Marianne Wesson
Washington Law Review
This article examines studies tending to cast doubt on the existence of any special faculty that enables psychoanalytically trained experts to discern the historical truth. It then illustrates, by examining the events at one trial, the distortions in the trial process that can arise when experts do purport to resolve issues of historical truth. Finally, it suggests some solutions to the problems described.
Recognizing The Liability Of Social Hosts Who Knowingly Allow Intoxicated Guests To Drive: Limits To Socially Acceptable Behavior, Robert W. Gomulkiewicz
Recognizing The Liability Of Social Hosts Who Knowingly Allow Intoxicated Guests To Drive: Limits To Socially Acceptable Behavior, Robert W. Gomulkiewicz
Washington Law Review
Gradually, courts have joined these efforts to alleviate the harm caused by the intoxicated driver. A few courts have recognized an action in tort against those who contribute to drunken driving by serving intoxicating liquor. These courts have acted, in part, to relieve victims of the costs of drunken driving and to distribute the costs among those responsible for its occurrence. Washington courts should recognize the liability of a negligent social purveyor of alcoholic beverages. Courts need not be constrained from recognizing a common law cause of action because of competing social interests or legislative inaction. Washington courts should rule …
Confronting The Fictions Of The Eleventh Amendment: Pennhurst State School And Hospital V. Halderman, 104 S. Ct. 900 (1984), Camille Gearhart
Confronting The Fictions Of The Eleventh Amendment: Pennhurst State School And Hospital V. Halderman, 104 S. Ct. 900 (1984), Camille Gearhart
Washington Law Review
This Note encourages lower federal courts to abandon the fictions of Ex Parte Young completely. The Note begins by exploring the history of the fictions of eleventh amendment doctrine. The Note then examines the Pennhurst Court's step forward in scorning these fictions and acknowledging that suits against state officers implicate state sovereignty. The Note next discusses the dilemma created by the Court's ruling that the eleventh amendment constitutionally prohibits federal judicial infringement of state sovereignty while at the same time acknowledging that the doctrine of Ex Parte Young allows such judicial infringement. Finally, the Note proposes that federal courts rely …
Implementing The Incentive Purpose Of The Private Attorney General Exception—Miotke V. City Of Spokane, 101 Wn. 2d 307, 678 P.2d 803 (1984), Jim Oesterle
Washington Law Review
This Note proposes both selective criteria and a procedure designed to implement the unique purpose of the private attorney general exception. The Note first describes the development of the private attorney general exception in both federal and state courts, and then traces the development of equitable exceptions in Washington. The analysis begins by identifying and comparing the purposes of the private attorney general, common fund, and substantial benefit exceptions, and critiques the ability of the Miotke standard to implement the purpose of the private attorney general exception. The analysis then proposes more discriminating criteria and a procedural approach that effectively …
Can Civil Rule 52(A) Peacefully Co-Exist With Independent Review In Actual Malice Cases? Bose Corp. V. Consumers Union, 104 S. Ct. 1949 (1984), Cathy Parker
Washington Law Review
This Note examines Bose to determine whether the Court intended to totally reject Rule 52(a) as completely inapplicable in determinations of actual malice. It concludes that independent review should not replace Rule 52(a) in actual malice cases but rather should serve a separate function to ensure that the reasoning of district courts complies with constitutional legal principles. The Note further suggests that Bose created a new rule of law protecting the media from suit where defendants have simply used "imprecise language" in reporting. In addition, because of the ambiguitites in the Court's opinion, the case can support not only the …
Terry Stop Or Arrest? The Washington Court Attempts A Distinction—State V. Williams, 102 Wn. 2d 733, 689 P.2d 1065 (1984), Beryl N. Simpson
Terry Stop Or Arrest? The Washington Court Attempts A Distinction—State V. Williams, 102 Wn. 2d 733, 689 P.2d 1065 (1984), Beryl N. Simpson
Washington Law Review
In State v. Williams the Washington Supreme Court attempted to set forth specific criteria for determining when a temporary detention exceeds the bounds of a Terry stop and becomes an arrest, with the concomitant probable cause requirement. The court relied on both the fourth amendment and article 1, section 7 of the state constitution as the bases for its standards. The holding, however, is fact-specific, and the court's discussion of the permissible scope and intensity of an investigatory stop does not adequately establish guidelines for the police to apply in a future situation. Further, because the court did not ground …
Washington Adopts Market Share Liability For Des Producers—Martin V. Abbott Laboratories, 102 Wn. 2d 581, 689 P.2d 368 (1984), Mark Reeve
Washington Law Review
In Martin v. Abbott Laboratories, the Washington Supreme Court adopted a narrow exception in DES cases to tort law's traditional requirement of causation. The court fashioned a liability-apportionment scheme based upon each defendant's contribution to the plaintiff's risk of harm: its "market share." The decision correctly refused to require joinder of a "substantial share" of the producers in the relevant market, and limited recovery to the percentage of the market actually joined. The court also decided to impose corporate successor liability on one drug manufacturer, drawing a dissent on the issue from three justices.
The Role Of The Supreme Court Of Japan In The Field Of Judicial Administration, Takaaki Hattori
The Role Of The Supreme Court Of Japan In The Field Of Judicial Administration, Takaaki Hattori
Washington Law Review
This article focuses on the Japanese Supreme Court's exercise of its power of judicial administration. The article places special emphasis on the management of the judiciary and on rulemaking, both quite novel to the Japanese court.
Protecting Intellectual Property In Taiwan—Non-Recognized United States Corporations And Their Treaty Right Of Access To Courts, Michael M. Hickman
Protecting Intellectual Property In Taiwan—Non-Recognized United States Corporations And Their Treaty Right Of Access To Courts, Michael M. Hickman
Washington Law Review
As global trade grows, intellectual property rights become increasingly important. United States corporations must often seek redress for infringement of their intellectual property rights in foreign forums. Taiwan has an international reputation for commercial counterfeiting. United States corporations with no presence in Taiwan are sometimes victims of infringement there. This Note describes the problems a non-recognized United States corporation presently faces in protecting its intellectual property rights in Taiwan and proposes a solution embodied in the United States-Republic of China (ROC) Treaty of Friendship, Commerce, and Navigation (FCN Treaty). A criminal case instituted by Apple Computer in Taiwan illustrates the …
Relevance Of Industry Custom In Strict Product Liability, Kathleen M. Doyle
Relevance Of Industry Custom In Strict Product Liability, Kathleen M. Doyle
Washington Law Review
In Lenhardt v. Ford Motor Co., the Supreme Court of Washington held that evidence of industry custom is inadmissible in a strict product liability case. The Washington court held that the custom of the industry is not always a relevant factor in determining the reasonable expectations of the ordinary consumer. The court reasoned that admitting evidence of industry or manufacturers' customs and practices would improperly shift the inquiry from the reasonableness of the buyer's expectations to the reasonableness of the seller's conduct. The court recognized that this shift in focus would introduce concepts of fault that are relevant in a …
The Washington Environmental Policy Act, William H. Rodgers Jr.
The Washington Environmental Policy Act, William H. Rodgers Jr.
Washington Law Review
As the Washington State Environmental Policy Act of 1971 (SEPA) approaches its fourteenth birthday, the time is ripe for an assessment of its recent history and foreseeable future. Several SEPA milestones have come and gone in the last several months, and a period of stability is in order. Reported Washington decisions citing SEPA now number close to one hundred; more than fifty of these are decisions of the Washington Supreme Court. The books are closed on the two-year efforts of the Washington Commission on Environmental Policy (the SEPA Commission), whose work culminated in a report to the 1983 Legislature. There …