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Washington Law Review

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Full-Text Articles in Law

Parallel Importation Of Trademarked Goods: A Comparative Analysis, Kaoru Takamatsu Jul 1982

Parallel Importation Of Trademarked Goods: A Comparative Analysis, Kaoru Takamatsu

Washington Law Review

This Article reviews how major countries and common markets, including the United States, Japan and the European Community, have dealt with the problem of parallel importation. It then suggests common criteria to solve this problem in each nation. It concludes that the proper results in parallel importation cases will be reached if the problem is analyzed in terms of the major functions of trademarks.

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Contribution Among Tort-Feasors In Washington: The 1981 Tort Reform Act, Scott I. Anderson Jul 1982

Contribution Among Tort-Feasors In Washington: The 1981 Tort Reform Act, Scott I. Anderson

Washington Law Review

Contribution is the right of a tort-feasor who has paid an injured plaintiff to obtain partial reimbursement from others responsible for the injury. Until 1981 this right was not available to tort-feasors in Washington. With the 1981 Tort Reform Act, Washington joined forty-one other states in allowing contribution. This Comment analyzes the legislation creating and regulating contribution in Washington. It examines the nature and scope of the right to contribution and discusses the procedural aspects of the Act. The Comment closes with an analysis of the interaction of contribution rights and settlements, and concludes that the settlement provisions of the …

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Washington's Useful Safe Life: Snipping Off The Long Tail Of Product Liability?, Bruce L. Schroeder Jul 1982

Washington's Useful Safe Life: Snipping Off The Long Tail Of Product Liability?, Bruce L. Schroeder

Washington Law Review

This Comment reviews the general law applicable to product liability claims. Next it analyzes the changes made by section. The Comment argues that it is doubtful whether section 7 will be able to achieve the legislature's desired goal of added certainty in product liability actions. The limited number of older claims, the limited spread of the law, and the use of a preponderance of the evidence test to overcome the twelve-year presumption stand as obstacles to achieving this end. Furthermore, this Comment argues that even if section 7 is successful in achieving its goal, the goal itself may be undesirable. …

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The Death Penalty In Washington: An Historical Perspective, Leonie G. Hellwig Jul 1982

The Death Penalty In Washington: An Historical Perspective, Leonie G. Hellwig

Washington Law Review

This Comment follows the evolution of Washington's capital punishment law through the 1981 legislation and analyzes the two cases that invalidated the 1977 death penalty statute. The Comment favors the reasoning behind the dissenting opinions of Martin and Frampton as more consistent with established principles of statutory construction. The Comment concludes with a discussion of Washington's new capital punishment legislation enacted in response to the supreme court's decisions.

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Antitrust And Health Care—Psychologists Entitled To Blue Shield Reimbursement—Virginia Academy Of Clinical Psychologists V. Blue Shield Of Virginia, 624 F.2d 476 (4th Cir. 1980), Cert. Denied 450 U.S. 916 (1981), Donna M. Moniz Jul 1982

Antitrust And Health Care—Psychologists Entitled To Blue Shield Reimbursement—Virginia Academy Of Clinical Psychologists V. Blue Shield Of Virginia, 624 F.2d 476 (4th Cir. 1980), Cert. Denied 450 U.S. 916 (1981), Donna M. Moniz

Washington Law Review

In Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, the Fourth Circuit Court of Appeals held that Blue Shield violated section 1 of the Sherman Antitrust Act because Blue Shield refused to pay psychologists who did not bill through physicians. The court held that Blue Shield constituted a conspiracy of individual physicians acting to reduce competition in the delivery of psychotherapeutic services. This holding significantly enhances the ability of psychologists and other licensed health care providers to compete with physicians. This Note discusses Virginia Academy in light of the pertinent antitrust doctrines. It approves the Fourth Circuit's holding …

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Criminal Law—Statutory Definition Of Knowledge—State V. Shipp, 93 Wn. 2d 510, 610 P.2d 1322 (1980), Robert C. Macaulay Mar 1982

Criminal Law—Statutory Definition Of Knowledge—State V. Shipp, 93 Wn. 2d 510, 610 P.2d 1322 (1980), Robert C. Macaulay

Washington Law Review

In State v. Shipp the Washington Supreme Court interpreted the meaning of "knowledge" as used in Washington's criminal culpability statute. Defendants in three different trials were convicted of crimes requiring proof of knowledge. In each case the trial court gave jury instructions directing the jury "to find that a person has knowledge if it finds that 'he has information which would lead a reasonable person in the same situation to believe that [the relevant] facts exist.'" The issue in Shipp was whether these instructions, which were taken almost verbatim from the statute, were correct. This note argues that, contrary to …

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Challenging State Acts Of Authorization Under The Fourteenth Amendment: Suggested Answers To An Uncertain Quest, G. Sidney Buchanan Mar 1982

Challenging State Acts Of Authorization Under The Fourteenth Amendment: Suggested Answers To An Uncertain Quest, G. Sidney Buchanan

Washington Law Review

The holdings in Flagg Brothers and Jackson suggest the central question addressed in this article: To what extent are state acts of authorization immunized from judicial review on the merits? Using the fact situations in Flagg Brothers and Jackson as paradigms, the two types of challenges that can be made in a typical fact situation involving the state action issue are first described. These two models are then discussed in relation to Flagg Brothers, Jackson, and other Supreme Court decisions that implicate the state action issue. With that discussion as a predicate, this article next considers the procedural problems that …

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Cameras In The Courtroom And Due Process: A Proposal For A Qualitative Difference Test, Jeremy Cohen Mar 1982

Cameras In The Courtroom And Due Process: A Proposal For A Qualitative Difference Test, Jeremy Cohen

Washington Law Review

The issue of cameras in the courtroom is at a crossroads. Many criminal defendants tried in the presence of the electronic media have claimed that they were denied due process, yet neither the Washington courts nor the federal courts have adequately defined the standards under which these claims will be evaluated. This failure to reach a definition has left the courts unable to state why cameras will be permitted at one trial and not at another. Creating standards to determine when the presence of cameras denies a defendant due process is not an easy task. The most promising judicial approach …

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Retaliatory Evictions In Washington And Seattle: In Search Of Public Policy, Brian T. Mcmanus Mar 1982

Retaliatory Evictions In Washington And Seattle: In Search Of Public Policy, Brian T. Mcmanus

Washington Law Review

Retaliatory eviction occurs when a landlord evicts a tenant because the tenant took action to compel the landlord to comply with the law. Because tenants had no laws with which to compel landlords to comply until the relatively recent advent of remedial housing legislation, the retaliatory eviction defense is a recent development in the law. After examining the historical basis for the retaliatory eviction defense, this comment discusses remedial housing legislation in Washington. It illustrates (i) the historical concern of both the state legislature and the state supreme court for quality rental housing; (ii) the state's historical dependence on municipalities …

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Medical Malpractice Statute Of Limitations In Washington, Darryl S. Vhugen Mar 1982

Medical Malpractice Statute Of Limitations In Washington, Darryl S. Vhugen

Washington Law Review

Generally, statutes of limitations run from the date of the alleged wrongful act. Because the average person lacks a good understanding of medical science and may not be aware of a wrongful medical practice when it occurs, medical malpractice plaintiffs have a more difficult time filing their causes of action within the allotted period than do other plaintiffs. As a result, many courts have devised methods of extending the statutory period. Two common-law techniques have predominated in Washington: (1) the discovery rule, and (2) the continuing course of treatment rule. This comment examines the Washington courts' use of these judicial …

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News-Source Privilege In Libel Cases: A Critical Analysis, David Joseph Smith Mar 1982

News-Source Privilege In Libel Cases: A Critical Analysis, David Joseph Smith

Washington Law Review

This comment first examines the recent cases in which a libel plaintiff was impeded by the use of a qualified privilege from obtaining the identity of news sources behind an allegedly defamatory story. It next discusses the historical development of the constitutional news-source privilege and concludes that neither traditional first amendment press clause doctrine nor the United States Supreme Court's decision in Branzburg v. Hayes is authority for such a privilege. This comment then points out that courts which nonetheless recognize a constitutional news-source privilege in civil cases have given the same protection to all sources, regardless of the publication's …

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Equitable Jurisdiction To Order Sterilizations, Craig L. Mcivor Mar 1982

Equitable Jurisdiction To Order Sterilizations, Craig L. Mcivor

Washington Law Review

Part I of this comment examines the historical development of nonconsensual sterilization and contrasts the earlier statutory schemes with modem equitable principles. Part II examines both sides of the question whether authority to order nonconsensual sterilizations should be inferred from a general jurisdictional grant. Part III concludes that courts of general jurisdiction should have such authority, but that its assertion is proper only if it is based on as narrow a rationale as possible, if its exercise furthers the rights of the retarded person, and if its application is strictly circumscribed by standards consistent with its equitable nature.

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Japan's Commission On The Constitution: The Final Report, Translated And Edited By John M. Maki (1980), Frank K. Upham Mar 1982

Japan's Commission On The Constitution: The Final Report, Translated And Edited By John M. Maki (1980), Frank K. Upham

Washington Law Review

The Final Report, which has been well translated and intelligently edited by John M. Maki, demonstrates to an almost excruciating extent this concern for fairness and balance. The first three parts of the Report chronicle the creation, structure, procedure, and central issues of the Commission's work. In doing so, they catalog issues and positions and explain the mechanics of the Commission, but do little else. For those interested in the substantive views espoused, Part Four, The Opinions of the Commissioners, will hold the most interest.

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Labor Unions—Vicarious Liability For Torts Committed By Members—Buchanan V. International Brotherhood Of Teamsters, 94 Wn. 2d 508, 617 P.2d 1004 (1980), Paul M. Feinsod Dec 1981

Labor Unions—Vicarious Liability For Torts Committed By Members—Buchanan V. International Brotherhood Of Teamsters, 94 Wn. 2d 508, 617 P.2d 1004 (1980), Paul M. Feinsod

Washington Law Review

This note first considers major developments in the law which preceded Buchanan. The reasoning of the Washington Supreme Court in this case then will be explicated, together with an analysis of the disparate views of the members of the court. This analysis will show that the majority position has unnecessarily excluded tort actions from the purview of RCW § 49.32.070. The note will conclude with a proposal for an alternative approach for the Washington courts to follow in future union-related tort cases.

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Washington's Zoning Vested Rights Doctrine, Fredrick D. Huebner Dec 1981

Washington's Zoning Vested Rights Doctrine, Fredrick D. Huebner

Washington Law Review

Part I of this comment reviews the judicial analysis underlying the Washington doctrine, and outlines the elements and scope of the vesting rule. Part II analyzes the Mercer decision and questions whether that decision promotes the purposes of the Washington doctrine in the PUD zoning context. This comment contends that the Mercer court's rule for vesting rights to develop land on the basis of incomplete building permit applications fails to consider important public policy interests. In conclusion, Part III proposes a modified vesting rule that addresses the problems inherent in the Mercer decision.

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Compliance With The New Continuity Of Business Enterprise Regulation, John J. O'Donnell Dec 1981

Compliance With The New Continuity Of Business Enterprise Regulation, John J. O'Donnell

Washington Law Review

Many questions unanswered by the new regulation have already been dealt with in these older forms of continuity of enterprise requirements. This article will discuss the major unanswered questions of the new regulation, examine how the older forms of continuity of enterprise have dealt with such issues, and consider the propriety of applying the older-form decisions to the new reorganization-enterprise continuity regulation. The result will be some guidance, although unfortunately no guaranteed methods, on how to avoid being forced to litigate the validity of the regulation itself.

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Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz Dec 1981

Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz

Washington Law Review

The Gypsum decision supplies the proper occasion for a renewed effort to sort out and line up the Court's pronouncements since Trans-Missouri concerning the respective functions in cases arising under section 1 of proof of anticompetitive purpose and effect. Once this is done, a reasonably coherent body of doctrine emerges and the unresolved issues come more clearly into focus. The first two sections of this article deal with purpose and effect as determinants, respectively, of "restraint of trade" and of "contract, combination . . . and conspiracy." The third section takes up the problems that arise when the doctrine that …

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Regulating Cable Television, Nicholas P. Miller, Alan Beals Dec 1981

Regulating Cable Television, Nicholas P. Miller, Alan Beals

Washington Law Review

The evolution of cable television from a community antenna television (CATV) system carrying only broadcast signals to a high capacity communications system carrying a wide variety of television and nonvideo services raises significant policy and legal questions about the role of government regulation of cable. Congress has recently considered legislation that would limit the ability of local governments to regulate the local cable franchise. Such legislation and the trend of the Federal Communications Commission (FCC) to reduce federal regulation of electronic media underscore the need for a clear definition of the appropriate regulatory role for government. To determine the appropriate …

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Ethical Conduct In A Judicial Campaign: Is Campaigning An Ethical Activity?, J. Scott Gary Dec 1981

Ethical Conduct In A Judicial Campaign: Is Campaigning An Ethical Activity?, J. Scott Gary

Washington Law Review

The purpose of this comment is twofold. First, through a comprehensive survey of the codes that comprise the sources of legal ethics, the comment elucidates a body of ethical law governing the conduct of candidates in a judicial campaign. Second, after identifying the basic principle found to underlie these ethical codes, this comment argues that the scope of permissible judicial campaigning should be strictly confined.

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Parody And Fair Use: The Critical Question, Susan Linehan Faaland Dec 1981

Parody And Fair Use: The Critical Question, Susan Linehan Faaland

Washington Law Review

Criticism has long been grounds for fair use status. This comment argues that parody's value, and its qualification for fair use status, should be defined by its critical effect. It follows then, that the amount which the parody should be able to borrow should be measured in terms of this critical effect: the parodist should be able to borrow the amount necessary to achieve effectively her work's critical purpose, which is the only reason for allowing fair use in the first place. This comment begins with an examination of the fair use doctrine and its application to parody by courts …

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Community Property—Washington Allows Separate Tort Recovery From Community Property—Deelche V. Jacobsen, 95 Wn. 2d 237, 622 P.2d 835 (1980), Elizabeth Jane Blagg Dec 1981

Community Property—Washington Allows Separate Tort Recovery From Community Property—Deelche V. Jacobsen, 95 Wn. 2d 237, 622 P.2d 835 (1980), Elizabeth Jane Blagg

Washington Law Review

With the deElche decision, Washington joined the majority of community property states, but did not address several important questions, which will be the subject of this note. This note begins by reviewing prior case law and the structure of community property ownership in general. An analysis of the majority and dissenting opinions in deElche follows. The majority's reasoning and the impact of the decision will then be analyzed. The note concludes that the deElche holding is basically sound, but that the lack of clarity in the opinion leaves several community property questions unsettled.

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Statutory Construction—Wildlife Protection Versus Indian Treaty Hunting Rights—United States V. Fryberg, 622 F.2d 1010 (9th Cir.), Cert. Denied, 449 U.S. 1004 (1980), Karl Forsgaard Dec 1981

Statutory Construction—Wildlife Protection Versus Indian Treaty Hunting Rights—United States V. Fryberg, 622 F.2d 1010 (9th Cir.), Cert. Denied, 449 U.S. 1004 (1980), Karl Forsgaard

Washington Law Review

While hunting for deer on his reservation, Dean Fryberg, an Indian, shot and killed a bald eagle. Although he had a treaty right to hunt on the Tulalip Reservation under the 1855 Treaty of Point Elliot, Fryberg was charged by information with taking a bald eagle in violation of the Eagle Protection Act of 1940. He did not possess a permit which would have allowed such a taking under the Act. This note concludes that the loose test used to find abrogation in Fryberg is unsatisfactory where a statute regulating a nonendangered resource is involved and instead proposes an alternative …

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"Property Rights" In Constitutional Analysis Today, James L. Oakes Nov 1981

"Property Rights" In Constitutional Analysis Today, James L. Oakes

Washington Law Review

The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they …

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Pleading Principles And Problems In Washington, Philip A. Trautman Nov 1981

Pleading Principles And Problems In Washington, Philip A. Trautman

Washington Law Review

It has now been a little over two decades since the present rules governing pleading became effective in Washington. It was on January 1, 1960 that the pertinent Washington Civil Rules, patterned after the Federal Rules of Civil Procedure, took effect. With some twenty years of experience to draw upon, it seems appropriate to review that experience with the hope of embellishing the stark provisions of the rules themselves, clarifying some of the problems that have arisen, and evaluating whether the objectives sought in the rules have been achieved.

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Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson Nov 1981

Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson

Washington Law Review

In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within …

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The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer Nov 1981

The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer

Washington Law Review

Private landowners in Washington have been required to reforest land after logging since 1945. The Washington Forest Practices Act of 1974 and its predecessor have primarily affected the state's timber industry, which has long been familiar with the reforestation requirement. Many nonindustrial forest landowners, however, are unaware of the requirements of the 1974 Act. The 1974 Act requires that any owner of forest land who removes the trees for any reason, whether to log one hundred acres for income or to clear one acre for a homesite, must satisfy the reforestation requirements of the Act. Part I of this comment …

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Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson Nov 1981

Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson

Washington Law Review

In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within …

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Liability Of Accountants For Proxy Violations—The Appropriate Standard Of Culpability—Adams V. Standard Knitting Mills, Inc., 623 F.2d 422 (6th Cir.), Cert. Denied, 449 U.S. 1067 (1980), Bruce E. Dick Nov 1981

Liability Of Accountants For Proxy Violations—The Appropriate Standard Of Culpability—Adams V. Standard Knitting Mills, Inc., 623 F.2d 422 (6th Cir.), Cert. Denied, 449 U.S. 1067 (1980), Bruce E. Dick

Washington Law Review

This note will first examine whether in fact accountants can be held primarily liable for proxy violations. Concluding that they can, the note will scrutinize the court's opinion to determine whether it requires scienter for all primary violators or only for accountants. The court's rationale suggests that the court intended to apply a uniform standard of culpability. This note will then compare the court's reasoning with the reasoning that led courts in two other circuits to choose, at least in some cases, negligence as the standard for primary violators. The comparison will show negligence to be the more appropriate minimum …

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"Property Rights" In Constitutional Analysis Today, James L. Oakes Nov 1981

"Property Rights" In Constitutional Analysis Today, James L. Oakes

Washington Law Review

The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they …

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Pleading Principles And Problems In Washington, Philip A. Trautman Nov 1981

Pleading Principles And Problems In Washington, Philip A. Trautman

Washington Law Review

It has now been a little over two decades since the present rules governing pleading became effective in Washington. It was on January 1, 1960 that the pertinent Washington Civil Rules, patterned after the Federal Rules of Civil Procedure, took effect. With some twenty years of experience to draw upon, it seems appropriate to review that experience with the hope of embellishing the stark provisions of the rules themselves, clarifying some of the problems that have arisen, and evaluating whether the objectives sought in the rules have been achieved.

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