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Articles 1621 - 1650 of 3365
Full-Text Articles in Law
Criminal Law—Mandatory Jail Sentences: An Effective Solution To The Drunk Driver Crisis?—Wash. Rev. Code § 46.61.515 (1979), John T. Oliver
Criminal Law—Mandatory Jail Sentences: An Effective Solution To The Drunk Driver Crisis?—Wash. Rev. Code § 46.61.515 (1979), John T. Oliver
Washington Law Review
In 1979 the Washington Legislature amended the drunk driver statute to prescribe a minimum mandatory one-day jail sentence. This sanction is an inappropriate response to the existing crisis of intoxicated drivers on state roads and highways. It is unlikely that the mandatory jail term will be more than marginally effective as a deterrent to drunk driving; this sanction has not previously proven effective as a deterrent for the offense of driving while intoxicated (DWI). Moreover, the amended statute is likely to create substantial practical problems. By restricting the flexibility of the criminal justice system and increasing the likelihood that offenders …
Torts—Wrongful Birth—New Jersey Recognizes Emotional Distress Damages In A Wrongful Birth Action Involving A Deformed Child—Berman V. Allan, 80 N.J. 421, 404 A.2d (1979), T. Ryan Durkan
Washington Law Review
This note begins by reviewing developments that created the legal and social setting for the Berman decision. After analyzing the court's opinion the focus shifts to the issue of damages. A valuation scheme is then proposed to effectuate the conclusion that both pecuniary and emotional damages should be awarded in wrongful birth actions involving impaired children.
Labor Law—Executive Legislation In The Federal Procurement System—A.F.L.-C.I.O. V. Kahn, 618 F.2d 784, Cert. Denied, 443 U.S. 915 (1979), Pam Mrkvicka
Washington Law Review
This note first explores prior uses of the section 205(a) powers to support executive orders. Second, it discusses flaws with analogizing from those orders to the wage and price control order, and highlights the missing element of congressional approval in this case. Lastly, it examines constitutional questions posed by the decision. This note concludes that the court was mistaken in finding a close nexus between the FPASA and President Carter's order. In its application of the close nexus test, the court abrogated the statutory standards limiting executive discretion under the FPASA. The court's interpretation of the Act delegates more power …
Constitutional Law—The Privileges And Immunities Clause Of Article Iv: Fundamental Rights Revived—Baldwin V. Fish & Game Commission, 436 U.S. 371 (1978), Walter G. Spilsbury, Jr.
Constitutional Law—The Privileges And Immunities Clause Of Article Iv: Fundamental Rights Revived—Baldwin V. Fish & Game Commission, 436 U.S. 371 (1978), Walter G. Spilsbury, Jr.
Washington Law Review
In Montana, nonresident sportsmen wishing to hunt solely for elk must purchase a big game combination license, though residents may acquire a separate elk license. In addition, Montana imposes substantially higher license fees on nonresidents, effectively requiring them to pay 28.2 times more than residents for the privilege of hunting elk. Plaintiffs challenged Montana's elk-hunting license fee scheme, charging that it discriminated against nonresident elk hunters in violation of the privileges and immunities clause of article IV, section 2 of the Constitution. A divided three-judge district court denied plaintiffs' demand for declaratory and other relief. In Baldwin v. Fish & …
Erisa Preemption Of Community Property Law—Francis V. United Technologies Corp., 458 F. Supp. 84 (N.D. Cal. 1978), Donald L. Shanks
Erisa Preemption Of Community Property Law—Francis V. United Technologies Corp., 458 F. Supp. 84 (N.D. Cal. 1978), Donald L. Shanks
Washington Law Review
The theory of modem domestic relations law—marriage as partnership—requires recognition of the non-employee spouse's ownership interest in the pension. This note challenges the Francis court's finding that recognition of the non-employee spouse's ownership interest was preempted by ERISA, concluding that Congress did not intend to bring about the regression in domestic relations law that Francis threatens.
Zoning—Judicial Enforcement Of The Duty To Serve The Regional Welfare In Zoning Decisions—Save V. City Of Bothell, 89 Wn. 2d 862, 576 P.2d 401 (1978), Michael H. Rorick
Zoning—Judicial Enforcement Of The Duty To Serve The Regional Welfare In Zoning Decisions—Save V. City Of Bothell, 89 Wn. 2d 862, 576 P.2d 401 (1978), Michael H. Rorick
Washington Law Review
After briefly noting the background of relevant Washington law, Part I of this note analyzes the SAVE court's reasoning to reveal indications of an underlying interventionism in its review of the rezone. Part II assesses the problems of such judicial intervention, first in the exclusionary zoning cases relied upon by the SAVE court for its regional welfare standard, and then in the context of zoning actions with the kind of extralocal environmental impacts presented by SAVE. Finally, arguments favoring increased judicial intervention are presented. The note concludes that there are both practical and doctrinal justifications for heightened judicial scrutiny of …
Dedication To William O. Douglas, William J. Brennan, Jr.
Dedication To William O. Douglas, William J. Brennan, Jr.
Washington Law Review
Short remarks on the passing of Justice William O. Douglas.
Mr. Justice Douglas, L. A. Powe, Jr.
Mr. Justice Douglas, L. A. Powe, Jr.
Washington Law Review
"The average American," according to William O. Douglas, "is an independent, rough and ready kind of fellow who wants to take a swing on his own." That statement goes a long way toward describing Douglas himself. Given his drive and intelligence, however, it would be inappropriate to equate Douglas with the "average American." He was, as his more than forty years of public service demonstrated, one of the extraordinary Americans in our history.
Wildlife And The Constitution: The Walls Come Tumbling Down, George Cameron Coggins
Wildlife And The Constitution: The Walls Come Tumbling Down, George Cameron Coggins
Washington Law Review
The federal law of wildlife has mushroomed during the past decade. Congress, in instances where certain species were suffering population crises, shed its historic reluctance to interfere with state wildlife management prerogatives. Opposition to federal intrusion has raised important constitutional issues, only some of which have been resolved definitively. Already the Congress and the courts have discarded some traditional assumptions about wildlife management, and the walls surrounding the traditional state prerogative to control resident wildlife are tumbling down. The fundamental question involves the extent to which the United States government constitutionally can regulate human activities that affect fauna and flora. …
State Statutory Restrictions On Financial Distributions By Corporations To Shareholders, Richard O. Kummert
State Statutory Restrictions On Financial Distributions By Corporations To Shareholders, Richard O. Kummert
Washington Law Review
After a long period of dormancy, interest appears to have quickened in the possible reform of the statutory provisions enacted by most states to regulate payments by corporations to their shareholders. The California legislature recently adopted a relatively unique series of restrictions on dividends and repurchases of shares as part of an overall revision of that state's Corporations Code. And the Committee on Corporate Laws of the American Bar Association section on Corporation, Banking and Business Law recently revised almost all of the financial provisions in the Model Business Corporation Act. In view of these developments, it is fair to …
Escalation Clauses In Washington Child Support Awards, Michael E. Gossler
Escalation Clauses In Washington Child Support Awards, Michael E. Gossler
Washington Law Review
This comment analyzes the Washington courts' interpretation of the statutes providing for making and modifying child support awards and the policies these statutes are designed to effect. It concludes that the use of escalation clauses is consistent with the statutes and policies on which the Washington support system is based, and that the use of such clauses is a more effective means of promoting the state's policy of providing adequate child support than the traditional approach of awarding support in fixed amounts subject to court modification. Finally, the comment suggests one possible escalation device that seeks to accurately predict future …
State Civil Service Law—Civil Service Restrictions On Contracting Out By State Agencies—Washington Federation Of State Employees V. Spokane Community College, 90 Wn. 2d 698, 585 P.2d 474 (1978), Timothy P. Dowling
Washington Law Review
This note will analyze the Spokane court's rationale for adopting the "nature of the services" test, which generally prohibits contracting for services which could be performed by civil service employees. The note argues that the Spokane rule is unsound for reasons of public policy, and contrary to the result reached in all but one jurisdiction which has addressed the issue. Finally, a rule will be proposed which would adequately protect the civil service system without unnecessarily hampering administrative flexibility and governmental economy in the areas where the 1979 Act is not applicable.
Workers' Compensation—Third-Party Tort Liability To Injured Workers Under R.C.W. Title 51—Seattle-First National Bank V. Shoreline Concrete Co., 91 Wn. 2d 230, 588 P.2d 1308 (1978), Cheryl A. Johnson
Washington Law Review
Washington's Industrial Insurance Act immunizes employers from tort actions brought by their injured employees. Dissatisfied with the modest compensation assured by the Act, employees often seek other parties to sue. Manufacturers who supply job-related equipment to employers are popular defendants because they are unprotected by the Act. In Seattle-First National Bank v. Shoreline Concrete Co. the Washington Supreme Court rendered the manufacturer's role as the employer's cotortfeasor particularly onerous. With only a cursory examination of policy, the court interpreted the Act as immunizing employers from suits by manufacturers for contribution, indemnity, or apportionment. In rejecting the trial court's innovative attempt …
School Finance Litigation—The Styles Of Judicial Intervention, William R. Andersen
School Finance Litigation—The Styles Of Judicial Intervention, William R. Andersen
Washington Law Review
Current debates about the legality of public school funding systems recognize that existing systems combine state, local, and federal revenue sources. The exact nature of the governmental partnership involved is seldom specified, however, and the result is that the institutional relationships are not clearly seen. This failure of perception leads to difficulties when a court is asked to determine the constitutionality of such systems. Two recent state school finance opinions will be analyzed here to compare two different styles of judicial intervention. This article does not deal with all school finance litigation nor with all styles of judicial involvement in …
Judicial Review Of Laws Enacted By Popular Vote, Marc Slonim, James H. Lowe
Judicial Review Of Laws Enacted By Popular Vote, Marc Slonim, James H. Lowe
Washington Law Review
This comment examines the thesis that the political process by which laws are enacted has constitutional significance and concludes that legislation enacted directly by voters warrants heightened judicial scrutiny under the fourteenth amendment. Part I chronicles the historical development of the initiative and referendum and surveys contemporary applications. Parts II and III examine the political underpinnings and ramifications of direct democracy and the constitutionality of the initiative process. Finally, Part IV proposes a constitutional law framework for heightened judicial scrutiny of laws enacted by popular vote.
Respective Roles Of Senate And President In The Making And Abrogation Of Treaties—The Original Intent Of The Framers Of The Constitution Historically Examined, Arthur Bestor
Washington Law Review
The first part of the present article examines the specific question of the placement in the constitutional system of the power to terminate a treaty originally ratified by and with the advice and consent of the Senate, two-thirds of the members present concurring. The power of terminating a treaty is, of course, only a particular segment or subdivision of the far more inclusive power of determining the foreign policy of the Nation. Accordingly, after considering the evidence bearing directly upon the narrow question of treaty abrogation, the present article turns to the larger question of the relationship the framers intended …
The Failure Of Situation-Oriented Professional Rules To Guide Conduct: Conflicting Responsibilities Of The Criminal Defense Attorney Whose Client Commits Or Intends To Commit Perjury, Joni Hammersla Ostergaard
The Failure Of Situation-Oriented Professional Rules To Guide Conduct: Conflicting Responsibilities Of The Criminal Defense Attorney Whose Client Commits Or Intends To Commit Perjury, Joni Hammersla Ostergaard
Washington Law Review
The legal profession has long promulgated rules in an effort to guide attorneys toward appropriate ethical behavior. By formulating such rules and by enforcing them through professional discipline, the profession has undertaken the admirable task of policing its own members. The past decade has seen a proliferation of different standards for attorney conduct, in part because of common law developments in the areas of legal malpractice and ineffective assistance of counsel. In addition, the bar has contributed to the proliferation of conduct rules by establishing standing committees that have promulgated advisory ethical standards in certain specialized fields. Despite the increasing …
Zoning—Rezones: New Standards For Governing Bodies—Parkridge V. City Of Seattle, 89 Wn. 2d 454, 573 P.2d 359 (1978), Alice L. Hearst
Zoning—Rezones: New Standards For Governing Bodies—Parkridge V. City Of Seattle, 89 Wn. 2d 454, 573 P.2d 359 (1978), Alice L. Hearst
Washington Law Review
This note examines four aspects of rezoning decisions addressed by the Parkridge court: the policy basis upon which rezoning actions may legitimately be grounded; the quantum of evidence necessary to support a rezoning decision;" the allocation of the burden of proof in rezoning actions; and the presumption of validity, if any, accorded local rezoning decisions.
Federal Estate Tax—Valuation Of A Deceased Spouse's Interest In Community Owned Stock—Estate Of Lee V. Commissioner, 69 T.C. 860 (1978), Lisa S. Frye
Washington Law Review
This note questions the propriety of allowing discounts to reflect lack of control where spouses enjoyed joint control over undivided interests in a majority block of shares. The issue is examined in light of existing case law and by reference to Washington community property law and federal estate taxation policies. The note concludes that, although Lee is not contrary to any explicit provision in the Internal Revenue Code, discounting a deceased spouse's share of a community owned majority block neither accurately reflects the degree of control its owners enjoyed nor effectively taxes wealth transfers at death.
Criminal Procedure—Washington's Standard For Determining Ineffectiveness Of Counsel—State V. Jury, 19 Wn. App. 256, 576 P.2d 1302 (1978), Joanne L. Tompkins
Criminal Procedure—Washington's Standard For Determining Ineffectiveness Of Counsel—State V. Jury, 19 Wn. App. 256, 576 P.2d 1302 (1978), Joanne L. Tompkins
Washington Law Review
This note first examines the development of the standards currently applied in Washington for determining whether a defendant has been denied effective assistance of counsel and whether that denial was prejudicial. It then analyzes the Jury court's application of the standards, and concludes that the court's interpretation of the standards, while better reasoned than prior Washington case law, is not supported by Washington Supreme Court precedent. Finally, it is suggested that Jury's primary importance is the increased pressure it may place on the Washington Supreme Court to review and clarify this area of Washington law
The Antitrust Consequences Of Manufacturer-Suggested Retail Prices—The Case For Presumptive Illegality, William R. Andersen
The Antitrust Consequences Of Manufacturer-Suggested Retail Prices—The Case For Presumptive Illegality, William R. Andersen
Washington Law Review
A manufacturer's suggestion of resale prices to dealers is an example of price-affecting conduct which is said to create no antitrust liability despite the fact that liability would result from identical conduct if the parties were horizontally related. This article argues that permitting parties to tamper with the price term in any fashion risks contravention of the policies behind the antitrust laws, and that making the antitrust consequence turn on whether the parties appear to be related vertically or horizontally is not an intelligible way of minimizing that risk. In conclusion it is recommended that suggested prices should be presumptively …
Federal Income Tax—Amoritization And The Expansion Sports Franchise—First Northwest Industries Of America, Inc. V. Commissioner, 70 T.C. 817 (1978), Roberta Reiff Katz
Federal Income Tax—Amoritization And The Expansion Sports Franchise—First Northwest Industries Of America, Inc. V. Commissioner, 70 T.C. 817 (1978), Roberta Reiff Katz
Washington Law Review
This note will first discuss past taxation practices of professional sports franchises. It will explain the "mass asset theory" as it has been applied to intangible assets outside the sports context and then examine the conflicting positions of the IRS and the Sonics as to the theory's applicability to the expansion franchise. Next, it will discuss the Tax Court's reasons for deciding not to apply the theory in First Northwest and suggest that the Ninth Circuit should similarly conclude that the theory is inappropriate in the context of expansion franchises. Finally, the note will explain the primary problem that results …
Collective Bargaining—Faculty Status Under The National Labor Relations Act—Nlrb V. Yeshiva University, 582 F.2d 686 (2d Cir. 1978), Cert. Granted, 99 S. Ct. 1212 (1979), James C. Howe
Washington Law Review
Supervisors and managerial employees were originally excluded from the NLRA's protections to solve problems caused by the unionization of decisionmakers working in the hierarchy of business organizations. Decisionmaking at Yeshiva, however, as in much of higher education, is organized on a non-hierarchical, collective basis. The Yeshiva court implicitly assumed, despite the University's non-hierarchial decisionmaking structure, that the policies underlying the exclusion of supervisors and managerial employees would be served by denying faculty the right to bargain collectively. This note tests that assumption. It examines the extent to which the purposes for excluding supervisory and managerial personnel from the NLRA's protections …
Private Suits Under Washington's Consumer Protection Act: The Public Interest Requirement, Carol Safron Gown
Private Suits Under Washington's Consumer Protection Act: The Public Interest Requirement, Carol Safron Gown
Washington Law Review
This comment discusses the current state of the law in the area of private remedies for unfair business practices and focuses on two questions: (1) Is the public interest requirement for private suits under the Act justified? (2) What are the appropriate tests for finding an effect on the public interest? The comment concludes that the statutory purpose and historical context justify the public interest requirement but that the Washington courts have not yet developed a sufficiently specific test for determining when the requirement has been met. A specific test is therefore suggested to fulfill the appropriate function of the …
Chemical Compounds Related As Genus And Species And The Patentability Requirement Of Novelty, Patricia E. Roberts
Chemical Compounds Related As Genus And Species And The Patentability Requirement Of Novelty, Patricia E. Roberts
Washington Law Review
The patentability of chemical compounds related as genus and species presents a problem in deciding the proper scope of patent protection granted to an inventor. Should the inventor of a genus be granted a patent covering all of the often numerous compounds which the genus might include? Should disclosure of the genus automatically eliminate a later inventor's ability to patent individual members of the genus, or should a court consider genus size and similarity of structure and properties in deciding patentability of the individual species? The Court of Customs and Patent Appeals has examined some of these issues.This comment will …
Water Law—Quantification Of Water Rights Claimed Under The Implied Reservation Doctrine For National Forests—United States V. New Mexico, 438 U.S. 696 (1978), Michael Wrenn
Washington Law Review
United States v. New Mexico is the first Supreme Court decision to quantify reserved water rights available for the national forests. The narrow scope accorded the implied reservation doctrine as applied to the United States' claims for water for recreational and wildlife purposes reflects recognition by the Court that the implied reservation doctrine will be limited in the face of competing claims based on state law. The Court's decision limits federal interests under the reserved rights doctrine without providing adequate protection for the water needs of the national forests. The decision also deprives the implied reservation doctrine of the flexibility …
Issues In Federal, State, And Tribal Taxation Of Reservation Wealth: A Survey And Economic Critique, Russel Lawrence Barsh
Issues In Federal, State, And Tribal Taxation Of Reservation Wealth: A Survey And Economic Critique, Russel Lawrence Barsh
Washington Law Review
This article will consider the most important Indian tax decisions, comparing the intended results of the decisions in the context of congressional Indian law with their probable economic consequences. Part II briefly reviews the main factors essential for proper economic evaluation of a tax. Part III critically surveys recent law of federal taxation of reservation wealth. Part IV similarly surveys and criticizes decisions regarding state taxation of reservation wealth. Part V offers alternate resolutions for state-Indian taxation disputes. In Part VI, the article proposes a framework for applying tax economics productively to the problem of meeting tribal revenue needs.
Benign Solicitation Of Clients By Attorneys, Joe Wishcamper
Benign Solicitation Of Clients By Attorneys, Joe Wishcamper
Washington Law Review
The purpose of this comment is to discuss the social benefits offered by benign commercial solicitation, examine the weaknesses in the current ABA rules and court doctrine, and suggest arguments that could be presented to persuade a court to abandon the traditional doctrine and provide protection for such solicitation. An alternative approach is presented which suggests dealing with solicitation cases by applying a "circumstances" oriented test. The suggested test would avoid some of the infirmities of the present doctrine and would be more useful in predicting outcomes of such cases.
A Standard For Judicial Review Of Administrative Decisionmaking Under Sepa—Polygon Corp. V. City Of Seattle, 90 Wn. 2d 59, 578 P.2d 1309 (1978), Michael W. Elsass
A Standard For Judicial Review Of Administrative Decisionmaking Under Sepa—Polygon Corp. V. City Of Seattle, 90 Wn. 2d 59, 578 P.2d 1309 (1978), Michael W. Elsass
Washington Law Review
This note will discuss the necessity of judicial review of administrative decisions which are made after the evaluation of an EIS. The note concludes that the relatively broad standard chosen by the court is appropriate for the review of administrative decisions made under SEPA.
Implied Limitation On The Jurisdiction Of Indian Tribes, Richard B. Collins
Implied Limitation On The Jurisdiction Of Indian Tribes, Richard B. Collins
Washington Law Review
In 1978 the Supreme Court in Oliphant v. Suquamish Indian Tribe held that the retained sovereignty of Indian tribes over tribal reservations does not include the power to punish non-Indians who commit offenses against tribal law.' Based on a number of facts and premises, the Court concluded that it had been assumed from the beginning that the tribes lack this authority except where expressly recognized or conferred by treaty provision or act of Congress. The Court also relied on the fact that during the formative years few Indian tribes had the governmental structure necessary to comply with Anglo-American requirements of …