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Articles 1441 - 1470 of 3365
Full-Text Articles in Law
Stare Decisis In Lower Courts: Predicting The Demise Of Supreme Court Precedent, David C. Bratz
Stare Decisis In Lower Courts: Predicting The Demise Of Supreme Court Precedent, David C. Bratz
Washington Law Review
This Comment contends that under limited circumstances lower courts may refuse to follow authoritative precedent. The Comment begins by distinguishing the doctrine of stare decisis in the Supreme Court and the doctrine as applied to lower courts. Next, the Comment discusses the doctrine of implicit overrule and suggests that the concept of implicit overrule is not sufficiently broad to encompass all of the circumstances in which lower courts should be allowed to disregard precedent. Using McCray as a paradigm, this Comment concludes that lower courts, within narrow limits, should be free to disregard even authoritative precedent when it is predictable …
Compromise Merit Review—A Proposal For Both Sides Of The Debate, Gregory Gorder
Compromise Merit Review—A Proposal For Both Sides Of The Debate, Gregory Gorder
Washington Law Review
As is the case with many facets of modem life, government is involved in regulating the primary securities markets. Both federal and state laws require registration of initial securities offerings. Federal registration is procedural in nature, requiring full disclosure. State registiation, on the other hand, usually includes "merit review" of proposed securities offerings; state administrators typically may deny registration of a security if the offering would not be fair, just, and equitable or would be unreasonable in certain respects. This Comment analyzes the advantages and disadvantages of merit review, specifically the discretionary power reposed in the state administrator, and proposes …
Personal Jurisdiction In The Post-World-Wide Volkswagen Era—Using A Market Analysis To Determine The Reach Of Jurisdiction, Gregory Trautman
Personal Jurisdiction In The Post-World-Wide Volkswagen Era—Using A Market Analysis To Determine The Reach Of Jurisdiction, Gregory Trautman
Washington Law Review
This Comment proposes that courts should apply a market analysis to all "stream of commerce" cases. The proper question in such cases is whether the market for the defendant manufacturer's or dealer's products includes the forum state. If so, the defendant should be subject to jurisdiction in the forum state. The Comment begins with a look at the recent history of the doctrine of personal jurisdiction. It then proposes a market analysis approach as an alternative to the rigid unilateral contacts test, and discusses the market analysis approach in the context of several recent consumer-based contact cases. Finally, the Comment …
New Limits On Police Vehicle Searches In Washington—State V. Ringer, 100 Wn. 2d 686, 674 P.2d 1240 (1983), Miriam Metz
New Limits On Police Vehicle Searches In Washington—State V. Ringer, 100 Wn. 2d 686, 674 P.2d 1240 (1983), Miriam Metz
Washington Law Review
In State v. Ringer, the Washington Supreme Court announced two new constitutional rules for police searches and seizures. First, police arresting a suspect in a car may search the suspect and the area within the suspect's immediate control for weapons or evidence, but may not search the area beyond the arrestee's reach. Second, unless there are exigent circumstances that justify their dispensing with a warrant, police with probable cause to search a lawfully stopped vehicle must obtain a warrant before conducting a search. Various public officials and organizations have criticized Ringer, castigating the Washington Supreme Court for being soft on …
Washington Consumer Protection Act—Public Interest And The Private Litigant, David J. Dove
Washington Consumer Protection Act—Public Interest And The Private Litigant, David J. Dove
Washington Law Review
Under Washington's Consumer Protection Act, a private individual has standing to sue for unfair or deceptive business practices. The private litigant may not, however, use the Act as a vehicle to remedy those wrongs that impact only the private individual, because the Act's declared purpose is to protect the public interest. The public interest requirement thus imposes a restriction on the otherwise liberal construction of the Act. The Washington Supreme Court has established two tests by which the public interest requirement may be met: (1) the per se test and (2) the Anhold v. Daniels test.
Three New Exceptions To The Employment At Will Doctrine—Thompson V. St. Regis Paper Co., 102 Wn. 2d 219, 685 P.2d 1081 (1984), Susan Ward
Washington Law Review
In Thompson v. St. Regis Paper Company, the Washington Supreme Court limited the employer's right to discharge at will employees by carving out three specific exceptions to the at will rule. This approach is a tentative step toward protection of the interests of employees in Washington. However, because many unjustly discharged employees will be unable to frame a complaint that falls within one of these narrow exceptions, the Thompson decision falls short of a comprehensive solution to the problem of unfair discharge.
Scientific Uncertainty And The National Environmental Policy Act—The Council On Environmental Quality's Regulation 40 C.F.R. Section 1502.22, Mark Reeve
Washington Law Review
The National Environmental Policy Act (NEPA) requires federal agencies to prepare Environmental Impact Statements (EIS's) for all major actions significantly affecting the environment. The EIS must disclose and evaluate alternative actions and their environmental consequences. Congress did not address the problem of scientific uncertainty when it passed NEPA. Ten years later, the Council on Environmental Quality (CEQ) tackled the issue by including section 1502.22 in its new regulations governing EIS production. The section provides that if scientific uncertainty exists but can be cured by further research the agency must do or commission the research. If the necessary research is exorbitantly …
Streamlining Antitrust Litigation By "Facial Examination" Of Restraints: The Burger Court And The Per Se-Rule Of Reason Distinction, Edward Brunet
Streamlining Antitrust Litigation By "Facial Examination" Of Restraints: The Burger Court And The Per Se-Rule Of Reason Distinction, Edward Brunet
Washington Law Review
Against a backdrop of a definitional skepticism, this article focuses on the important Burger Court contribution to the per se and rule of reason approaches. The Burger Court now requires a facial examination of antitrust restraints that may improve the lethargic process of antitrust litigation. Much of the article concerns the differences between the per se and rule of reason tests. The Burger Court's decisions, however, require that careful attention be given to the similar and complementary features of the rule of reason and per se methods. The article examines carefully the methodologies courts employ to classify alleged restraints as …
Short-Swing Profiles In Failed Takeover Bids—The Role Of Section 16(B), Donna Darm
Short-Swing Profiles In Failed Takeover Bids—The Role Of Section 16(B), Donna Darm
Washington Law Review
This Comment examines the scope of section 16(b) liability for the unsuccessful takeover bidder. It then develops two possible analyses by which the courts might exempt the takeover bidder from section 16(b)'s provisions. Alternatively, it recommends that if the courts do not exonerate takeover bidders, they should at least allow a less harsh calculation of profit.
Politics And Principles: An Assessment Of The Roosevelt Record On Civil Rights And Liberties, Peter Irons
Politics And Principles: An Assessment Of The Roosevelt Record On Civil Rights And Liberties, Peter Irons
Washington Law Review
The central focus of this article is on the role played in these episodes by the U.S. Department of Justice, the primary federal agency entrusted with law enforcement duties and powers. In particular, the role of the attorney general as the department's titular head and as the personification of federal enforcement of civil rights and liberties provides this article with its analytic framework. A recent press commentary put this crucial cabinet post in perspective: "More than anyone but the President himself, it is the Attorney General who sets the moral tone of an Administration, symbolizing its commitment or lack of …
Entry To Arrest A Suspect In A Third Party's Home: Ninth Circuit Opens The Door—United States V. Underwood, 717 F.2d 482 (1983), Cert. Denied, 104 S. Ct. 1309 (1984), Sarah L. Klevit
Washington Law Review
This Note examines the Supreme Court's conflicting policies and how the Underwood court resolved them. To set a framework for analyzing the case, it discusses the Supreme Court's protection of privacy rights in the home and the Court's recent limitations on the standing doctrine. The Note reviews the facts and holding of Underwood, then illustrates both the problems with the court's reasoning and those created by its decision to uphold the search. Finally, this Note suggests that the Ninth Circuit's approach in Underwood was wrong and proposes, instead, a two-step test for analyzing similar search and seizure cases. Not only …
Recovery For "Loss Of Chance" In A Wrongful Death Action—Herskovits V. Group Health, 99 Wn. 2d 609, 664 P.2d 474 (1983), Linda M. Roubik
Recovery For "Loss Of Chance" In A Wrongful Death Action—Herskovits V. Group Health, 99 Wn. 2d 609, 664 P.2d 474 (1983), Linda M. Roubik
Washington Law Review
In Herskovits v. Group Health, the Washington Supreme Court held that loss of a less-than-50% chance of survival is a compensable injury under the Washington wrongful death statute. The court did not agree, however, on the proper method for determining causation in a loss of chance case. Neither of the two methods of causation analysis proposed by the court is satisfactory. Recovery for loss of a less-than-50% chance of survival is not possible under traditional causation principles, and should be allowed only if a court is willing to adopt a possibility standard of proof and adjust damages to reflect the …
The Activist Legacy Of The New Deal Court, Raoul Berger
The Activist Legacy Of The New Deal Court, Raoul Berger
Washington Law Review
The activist legacy of the New Deal Court was free-wheeling adjudication. It sprang from the Four Horsemen's obdurate identification of their economic and social predilections with constitutional mandates, halting the Rooseveltian reform measures in their tracks, and bringing on the Court-Packing Plan. Although the Plan failed, it was followed by a shake-out resulting in the "reconstructed Court,'' a Court that had learned from its predecessors how to manipulate the Constitution, albeit for a new set of goals.
The Great Depression, The New Deal, And The American Legal Order, Michael E. Parrish
The Great Depression, The New Deal, And The American Legal Order, Michael E. Parrish
Washington Law Review
Historians' reconceptualization of the nineteenth century American legal order has led to a reconsideration of law and the state in modem America. The origins of administrative law, redistributive social programs, and a concern for economic planning lie not in the progressive era of Theodore Roosevelt and Woodrow Wilson, as once thought, but in the final decades of the nineteenth century. The old liberal synthesis, which posited a continuing legal struggle between big business on the one hand and selfless, idealistic reformers on the other, began to lose credibility in light of modem research. Many historians now argue persuasively that corporate …
The New Deal And Its Current Significance In Re National Economic And Social Policy, Leon H. Keyserling
The New Deal And Its Current Significance In Re National Economic And Social Policy, Leon H. Keyserling
Washington Law Review
The recent celebration of the Franklin D. Roosevelt centenary and the fiftieth anniversary of his coming to the Presidency demonstrate that those who look back at one of the most momentous periods in American history are divided mostly into two camps—those who apotheosize the New Deal and those who excoriate it. But both sides commit the error of looking upon the New Deal as an historic past without treating it as a prelude. Neither side recognizes that the New Deal fundamentally changed the nature of economic and social conditions among the American people, as well as the public policies affecting …
Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh
Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh
Washington Law Review
The Supreme Court's decisions have been characterized by an absence of general principles, which the Justices rationalize as the "particularization" of their analysis. The standards that do appear from time to time, such as "balancing interests" and "implied repeal," are merely euphemisms for discretion. There has been no consistent authorship of opinions because the Justices hold little enthusiasm for Indian law cases, and the Court seems to treat each dispute as if it were a matter of first impression. "Generalizations on this subject have become . . . treacherous" as a result of the Court's failure to make and stick …
Constitutional Protection For Creative Tax Shelter Promoters: Ninth Circuit Restricts The Government's Arsenal Of Power—United States V. Dahlstrom, 713 F.2d 1423 (9th Cir. 1983), Cert. Denied, 104 S. Ct. 2363 (1984), Beryl N. Simpson
Washington Law Review
In United States v. Dahlstrom, the Ninth Circuit Court of Appeals reversed the criminal tax fraud convictions of five tax advisers. The defendants had been convicted for developing and promoting a program in which a United States taxpayer shifted taxable income to a controlled trust in a tax-haven country. The Ninth Circuit held that, as a matter of law, the promoters of the foreign trust arrangement could not be convicted of counseling fraud because the particular scheme had not yet been declared fraudulent. Through its decision the court has restricted the government's campaign against abusive tax shelters, and placed a …
Wildcat Strikes In Health Care Institutions—East Chicago Rehabilitation Center, Inc. V. Nlrb, 720 F.2d 397 (7th Cir. 1983), Cert. Denied, 104 S. Ct. 1414 (1984), Crissa Cugini
Washington Law Review
In 1974, Congress added section 8(g) to the National Labor Relations Act (NLRA), requiring labor organizations in health care institutions to give ten days' notice before striking. In East Chicago Rehabilitation Center, Inc. v. NLRB, the Seventh Circuit Court of Appeals interpreted the ten day notice provision in the context of a wildcat strike by seventeen nurse's aides. A divided court held that the wildcat strikers were not required to give ten days' notice because they were not a "labor organization." The court further held that the strikers were protected even though theirs was a wildcat strike not authorized by …
Administrative Agency Inaction: Misapplication Of The Finality Doctrine—Sierra Club V. Gorsuch, 715 F.2d 653 (D.C. Cir. 1983), Jacqualee Story
Administrative Agency Inaction: Misapplication Of The Finality Doctrine—Sierra Club V. Gorsuch, 715 F.2d 653 (D.C. Cir. 1983), Jacqualee Story
Washington Law Review
This Note first summarizes the finality doctrine, and then examines the Sierra Club court's misapplication of the finality analysis. The Note suggests an alternate analysis of the agency inaction in Sierra Club and proposes that such an analysis be applied in factual situations similar to that in Sierra Club.
Corporate Negligence Actions Against Hospitals—Can The Plaintiff Prove The Case?, Susan Ward
Corporate Negligence Actions Against Hospitals—Can The Plaintiff Prove The Case?, Susan Ward
Washington Law Review
This Comment first explains the theory of corporate negligence as adopted in Washington and describes the role of a hospital's quality review committees in fulfilling the hospital's corporate duty. It then reviews present law on the use of committee records in litigation. Next, this Comment considers the conflict between the goals of protecting medical staff committee records and permitting recovery in corporate negligence actions. It concludes that medical staff committee records should be protected from discovery in hospital corporate negligence actions and that the evidentiary use of hospital quality review committee records should be prohibited as well. Because this extended …
Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley
Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley
Washington Law Review
The legal systems of the Federal Republic and Japan have much in common. The basic institutions and concepts of German civil, criminal, and administrative law provided the principal models for Japan's legal reforms during the late nineteenth and early twentieth centuries. Contemporary legislation and doctrinal changes in the Federal Republic also continue to influence Japanese legal developments. Despite the American origins of Japanese antitrust legislation, which was drafted by Americans and imposed during the Occupation on a less than enthusiastic Japanese government, the influence of German law and practice on Japanese antitrust law, at least since 1953, has been profound. …
Autopsy Of A Plain English Insurance Contract: Can Plain English Survive Proximate Cause?—Graham V. Public Employees Mut. Ins. Co., 98 Wn. 2d 533, 656 P.2d 1077 (1983), Lynn B. Squires
Washington Law Review
This Note first analyzes the majority's introduction of a tort concept of proximate cause for deciding insurance cases-and for covertly making public policy. Second, the Note analyzes the dissent's failure to modify its traditional contract analysis to meet the needs of consumers who purchase standard form contracts. The Note recommends the use of an adhesion contract analysis and a common sense test of causation for deciding consumer insurance cases. The Note considers the insurance industry's dilemma as it attempts to respond to plain language legislation while still controlling its exposure to liability. The Note considers as well the public in …
Informants' Tips And Probable Cause: The Demise Of Aguilar-Spinelli—Illinois V. Gates, 103 S. Ct. 2317 (1983), Laura J. Buckland
Informants' Tips And Probable Cause: The Demise Of Aguilar-Spinelli—Illinois V. Gates, 103 S. Ct. 2317 (1983), Laura J. Buckland
Washington Law Review
The Supreme Court was expected to announce a decision in Illinois v. Gates modifying the exclusionary rule to include a "good-faith" exception. "[W]ith apologies to all," however, the Court declined to rule on that issue. The Supreme Court instead abandoned the Aguilar-Spinelli test for assessing probable cause based on information derived from informants. The Court replaced the Aguilar-Spinelli test with a "totality of the circumstances" approach, and upheld the search warrant in Gates. Gates is the first Supreme Court decision to specifically address the use of anonymous informants' tips as the probable cause basis for securing a search warrant. Gates …
The Ninth Circuit's Requirement Of Notice To Targets Of Third Party Subpoenas In Sec Investigations—A Remedy Without A Right—Jerry T. O'Brien, Inc. V. Sec, 704 F.2d 1065 (9th Cir. 1983), Rev'd, No. 83-751, Slip Op. (U.S. June 18, 1984), Judith Bellamy Peck
Washington Law Review
The threat of civil, criminal, or administrative sanctions is, of course, the greatest risk faced by a subject of an SEC investigation. However, regardless of the investigatee's guilt or innocence, an investigation poses other hazards, especially damage to business reputation. SEC investigatees traditionally have had virtually no protection against the economic risks that accompany the investigative process. These risks have been seen as the unavoidable cost of pursuing a regulated activity. This Note examines generally the economic interests of SEC investigatees and reviews prior judicial treatment of these interests. The Note then analyzes the O'Brien decision, focusing on the court's …
A Unified Approach To State And Municipal Tort Liability In Washington, Mark Mclean Myers
A Unified Approach To State And Municipal Tort Liability In Washington, Mark Mclean Myers
Washington Law Review
This Comment examines and analyzes the two judicially created limitations on governmental tort liability in Washington. It concludes that the discretionary governmental acts immunity is a proper limitation on governmental tort liability, but that the public duty doctrine should be abandoned.
Federalism And The Wild And Scenic Rivers Act: Now You See It, Now You Don't, Sally K. Fairfax, Barbara T. Andrews, Andrew P. Buchsbaum
Federalism And The Wild And Scenic Rivers Act: Now You See It, Now You Don't, Sally K. Fairfax, Barbara T. Andrews, Andrew P. Buchsbaum
Washington Law Review
This article investigates the proposed designation of the North Coast rivers under WSRA. It chronicles developments in the legal controversy and relates them to the larger issues of land and water management. The shifting legal framework and changing economic and political interests in the North Coast controversy are particularly enlightening to students of federalism. Lawyers are among those who may be tempted to view the North Coast controversy in terms of federal-state conflict or intergovernmental cooperation run amuck, and to view the courts as an umpire in a dispute over authority.
The Warranty Of Merchantability And Computer Software Contracts: A Square Peg Won't Fit In A Round Hole, Edward G. Durney
The Warranty Of Merchantability And Computer Software Contracts: A Square Peg Won't Fit In A Round Hole, Edward G. Durney
Washington Law Review
Courts have consistently held that Article 2 of the Uniform Commercial Code (U.C.C.) governs transactions involving computer hardware. Treatment of computer software transactions has been less consistent. This Comment contends that computer software, an intangible, is not within the scope of Article 2. It further contends that the warranty of merchantability cannot meaningfully be applied by analogy in computer software contracts. Finally, this Comment concludes that existing tort and contract causes of action provide software users with sufficient protection.
The Status Of Statutes Containing Legislative Veto Provisions After Chadha—Does The Eeoc Have The Authority To Enforce The Equal Pay Act And The Age Discrimination In Employment Act?, Tracy Pool
Washington Law Review
After Chadha, the constitutional status of unexercised legislative veto provisions, such as the one in the Reorganization Act of 1977, is uncertain. Part I of this Note examines this uncertainty and concludes that unexercised veto provisions should be held unconstitutional. Part II then examines three possibile methods of limiting the Chadha decision to avoid invalidating the EEOC's authority to enforce the Equal Pay Act and the ADEA.
Awards Of Attorneys' Fees To Nonprevailing Parties Under The Clean Air Act—Ruckelshaus V. Sierra Club, 103 S. Ct. 3274 (1983), Ingrid Holmlund
Awards Of Attorneys' Fees To Nonprevailing Parties Under The Clean Air Act—Ruckelshaus V. Sierra Club, 103 S. Ct. 3274 (1983), Ingrid Holmlund
Washington Law Review
The Clean Air Act (the Act) provides that in a suit for judicial review of an agency action under the Act, "the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such [an] award is appropriate." In Ruckelshaus v. Sierra Club, the United States Supreme Court held that this language permits an award of attorneys' fees only to parties who prevail on the merits. In a footnote, the Court extended its holding to sixteen other statutes with identical provisions. This Note will evaluate the soundness of the Supreme Court's holding in Ruckelshaus. …
Patenting Inventions That Embody Computer Programs Held As Trade Secrets—White Consolidated Industries V. Vega Servo-Control, 713 F.2d 788 (Fed. Cir. 1983), Ellen Lauver Weber
Patenting Inventions That Embody Computer Programs Held As Trade Secrets—White Consolidated Industries V. Vega Servo-Control, 713 F.2d 788 (Fed. Cir. 1983), Ellen Lauver Weber
Washington Law Review
An inventor develops a numerical control system that allows a computer program to control the complex operation of machine tools such as drill bits. One of the elements in the numerical control system is a trade secret available only from the inventor. The inventor would like to patent the system as a whole, but an inventor must generally disclose how the invention works in order to obtain a patent. Must this inventor completely disclose how the trade secret works in order to obtain a patent on the whole system? The Federal Circuit Court of Appeals said "yes" in White Consolidated …