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Washington Law Review

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Full-Text Articles in Law

Introduction To Indian Law Symposium. Indian Law And Policy: The Historian's Viewpoint, Rennard Strickland Jun 1979

Introduction To Indian Law Symposium. Indian Law And Policy: The Historian's Viewpoint, Rennard Strickland

Washington Law Review

One purpose of this special section is to bring new and fresh perspectives to the field of Indian law. The editors hope to create a broader understanding of the concerns of the Indian, the non-Indian community, the states, and the federal government. I hope to give you a look from yet another viewpoint, the historian's viewpoint. To historians there is the appearance of great circularity yet underlying continuity in the course of Indian law and policy. In this brief introduction I want to convey to you something of that historian's viewpoint in the hope that these new perspectives on Indian …


Indians And Equal Protection, Ralph W. Johnson, E. Susan Crystal Jun 1979

Indians And Equal Protection, Ralph W. Johnson, E. Susan Crystal

Washington Law Review

This article analyzes the recent Indian equal protection cases in an attempt to formulate the equal protection doctrine as applied to Indians, to examine the theoretical foundation for that doctrine, and to indicate how that doctrine will likely be applied in situations not yet addressed by the courts.


Tribal Preemption, Eric R. Biggs Jun 1979

Tribal Preemption, Eric R. Biggs

Washington Law Review

This comment analyzes the sources for the tribal preemption doctrine and the application of the doctrine. Because preemption necessarily involves a conflict between entities which seek to assert jurisdiction over the same subject matter, the general contours of jurisdiction over Indians must first be examined. The comment then discusses the federal preemption doctrine in order to explain more fully the aspects of tribal preemption which rest upon federal preemption. After an examination of how tribal preemption is applied in various settings, the comment will briefly look at the possibilities of partial tribal preemption. Finally, the comment concludes that a two-step …


The Puyallup Indians And The Reservation Disestablishment Test, Richard M. Slagle Jun 1979

The Puyallup Indians And The Reservation Disestablishment Test, Richard M. Slagle

Washington Law Review

This comment considers whether the Puyallup Indian Reservation was disestablished when it was opened near the turn of the century for settlement by non-Indians. Although the Ninth Circuit Court of Appeals has held that "the Puyallup Indian Reservation continues to exist," subsequent dictum of the United States Supreme Court casts doubt upon the continuing validity of this holding. The question of the reservation's continued existence has also been raised in recent litigation. After reviewing the Puyallup Indian Reservation's history and analyzing it in the context of Supreme Court decisions concerning disestablishment, this comment concludes that the Puyallup Indian Reservation was …


Constitutional Law—Sex Discrimination Under The Equal Rights Amendment—Marchioro V. Chaney, 90 Wn. 2d 298, 582 P.2d 487 (1978), Prob. Juris. Noted, 99 S. Ct. 718 (1979), Irene Hecht Jun 1979

Constitutional Law—Sex Discrimination Under The Equal Rights Amendment—Marchioro V. Chaney, 90 Wn. 2d 298, 582 P.2d 487 (1978), Prob. Juris. Noted, 99 S. Ct. 718 (1979), Irene Hecht

Washington Law Review

Two of several statutes governing the composition and organization of the major political parties in Washington, R.C.W. § 29.42.020 and R.C.W. § 29.42.030, require that certain pairs of party representatives consist of one man and one woman. Following an intraparty dispute various interested persons filed suit, challenging, inter alia, the constitutionality of R.C.W. §§ 29.42.020-.030 under Washington's Equal Rights Amendment (ERA). The trial court granted the plaintiffs summary judgment on this claim. In a five to four decision the Washington Supreme Court reversed, upholding the constitutionality of both statutes under the ERA because they did not discriminate on the basis …


Historic Preservation—Transferable Development Rights As Mitigation Rather Than Just Compensation—Penn Central Transportation Co. V. New York City, 438 U.S. 104 (1978), Douglas L. Batey Jun 1979

Historic Preservation—Transferable Development Rights As Mitigation Rather Than Just Compensation—Penn Central Transportation Co. V. New York City, 438 U.S. 104 (1978), Douglas L. Batey

Washington Law Review

Plaintiff was prevented by the New York City Landmarks Preservation Law from erecting a multi-story office building above Grand Central Railroad Terminal. Plaintiff was not compensated, but was allowed to transfer the Terminal's unused development rights to other sites. The trial court found this restriction unconstitutional unless "just compensation" was provided, and granted injunctive and declaratory relief. The New York Supreme Court, Appellate Division, reversed, finding that Penn Central, the plaintiff, had not been unconstitutionally deprived of its property. This decision was affirmed by the New York Court of Appeals. In a six to three decision, the United States Supreme …


Water Resources—Reclaiming State Power Over Federal Reclamation Projects—California V. United States, 98 S. Ct. 2925 (1978), Peggy Williams Jun 1979

Water Resources—Reclaiming State Power Over Federal Reclamation Projects—California V. United States, 98 S. Ct. 2925 (1978), Peggy Williams

Washington Law Review

The U. S. Supreme Court held in California v. United States, 98 S. Ct. 2985 (1978), that under section 8 of the Reclamation Act of 1902, a state may impose on a permit granting water to the United States for a federal reclamation project any conditions which are not inconsistent with federal statutes. The six-three majority opinion, written by Justice Rehnquist, marks a significant departure from prior cases which had severely limited the role of state law in federal reclamation projects. A strongly worded dissent argued that the federal government must follow state law to a limited extent in the …


Beyond Bakke—The Use Of Noncognitive Factors In Professional School Admissions Decisionmaking, Catherine Wright Smith Mar 1979

Beyond Bakke—The Use Of Noncognitive Factors In Professional School Admissions Decisionmaking, Catherine Wright Smith

Washington Law Review

This comment suggests that professional schools constitutionally need not and, as a matter of policy, should not be deterred from considering at least some noncognitive criteria in admissions decisions. An exhaustive constitutional analysis of the standard of inquiry appropriate for each noncognitive criterion is not attempted. Instead, the comment shows in Part I that, regardless of the standard of scrutiny applied, any constitutional adjudication will involve some inquiry into the relationship between the school's articulated admissions goals and the admissions criteria used to implement them. The focus of the comment, then, is to analyze those goals that are typically advanced …


Codification And The Rise Of The Restatement+A5 Movement, Nathan M. Crystal Mar 1979

Codification And The Rise Of The Restatement+A5 Movement, Nathan M. Crystal

Washington Law Review

This article first critically examines and disputes the theses of Professors Gilmore and Friedman. It then presents an argument that the Restatement movement was, in fact, sympathetic to the goals of codification and, far from being a reaction to the challenge of realism, originated before realism developed as a coherent position. Both the Restatement movement and the codification movement of the late nineteenth and early twentieth centuries attempted to solve the problems of uncertainty, complexity, and consequent delay which plagued the legal system after the Civil War. Both were instituted, in substantial part, by the same segments of the bar, …


Harbor Lines And The Public Trust Doctrine In Washington Navigable Waters, Ralph W. Johnson, Eileen M. Cooney Mar 1979

Harbor Lines And The Public Trust Doctrine In Washington Navigable Waters, Ralph W. Johnson, Eileen M. Cooney

Washington Law Review

Since 1971 the Shoreline Management Act (SMA) has been the dominant legal tool for managing the Washington coastal zone. However, use of state-owned beds of navigable fresh and salt waters below low tide or the low-water line is still controlled largely by the harbor line system established in the 1889 state constitution. Almost no attention has been paid to the harbor line system in the legal literature, or to its relationship to the other laws concerned with coastal zone management. This article briefly analyzes the relationship of the harbor line system to the SMA, to the various federal laws concerned …


State Regulation Of Federally Chartered Financial Institutions: Washington's Anti-Redlining Act, Richard H. Cleva Mar 1979

State Regulation Of Federally Chartered Financial Institutions: Washington's Anti-Redlining Act, Richard H. Cleva

Washington Law Review

The purpose of this comment is to analyze the law on state regulation of federal financial institutions and then to apply that analysis to the Washington act in order to determine whether the act can validly be applied to national banks and federal savings and loan associations. Part II critically describes the Washington act and compares it with federal law on the same subject. Part III surveys the judicially developed limits on state regulation of federal financial institutions. Part IV then considers the validity of the Washington act as applied to federal financial institutions in light of the judicial limits …


Domestic Relations—Post-Minority Child Support In Dissolution Proceedings—Childers V. Childers, 89 Wn. 2d 592, 575 P.2d 201 (1978), Patrick Charles Marshall Mar 1979

Domestic Relations—Post-Minority Child Support In Dissolution Proceedings—Childers V. Childers, 89 Wn. 2d 592, 575 P.2d 201 (1978), Patrick Charles Marshall

Washington Law Review

This note will first explore the purpose of child support and the changes in Washington law resulting in the court's construction of the Dissolution Act in Childers. Following an analysis of the Childers opinion, the remainder of this note will outline the present operation and scope of the child support provisions in the Dissolution Act and discuss the impact the provisions might have upon custody of children.


Accommodation Of Indian Treaty Rights In An International Fishery: An International Problem Begging For An International Solution, Kenneth E. Petty Mar 1979

Accommodation Of Indian Treaty Rights In An International Fishery: An International Problem Begging For An International Solution, Kenneth E. Petty

Washington Law Review

This comment will analyze the relative success of the various approaches taken to implement Indian treaty rights in the international fishery. It will discuss the domestic litigation resulting from these approaches and will identify the key legal issues involved. Finally, it will suggest possible means of resolving the dilemma in which the United States currently finds itself. By providing an appreciation of both the scientific complexities of managing this valuable resource and the limitations on unilateral judicial efforts in the United States, it will become apparent that the solution to this sensitive problem rests not in unilateral, but in cooperative …


The Referendum: Democracy's Barrier To Racial Equality, Derrick A. Bell, Jr. Dec 1978

The Referendum: Democracy's Barrier To Racial Equality, Derrick A. Bell, Jr.

Washington Law Review

To criticize the trend toward direct democracy appears reactionary, if not un-American. Yet, as suggested earlier, the growing reliance on the referendum and initiative poses a threat to individual rights in general and in particular creates a crisis for the rights of racial and other discrete minorities. This article seeks to explain why this is so and how courts might use existing constitutional principles to recognize legitimate interests in direct legislation, yet protect minority rights against majoritarian abuse.


Antenuptial And Postnuptial Contracts In Washington, Nancy C. Phelps Dec 1978

Antenuptial And Postnuptial Contracts In Washington, Nancy C. Phelps

Washington Law Review

Each state has developed its own standards for deciding when an antenuptial or postnuptial contract is "fairly" made. This comment analyzes the current requirements for validity imposed by the decisional and statutory law of the State of Washington.


The Federal Rules Of Evidence: A Model For Improved Evidentiary Decisionmaking In Washington, Robert H. Aronson Dec 1978

The Federal Rules Of Evidence: A Model For Improved Evidentiary Decisionmaking In Washington, Robert H. Aronson

Washington Law Review

This article discusses the underlying reasons for establishing rules of evidence, defines two unavoidable conflicts encountered in attempting to effectuate the purposes for adopting such rules, suggests that the Federal Rules of Evidence help resolve these conflicts by adhering to several clearly enunciated rationales, and, finally, indicates how the Rules recognize and accommodate important new scientific and social insights on the admissibility of evidence.


Elimination Of The Agency Fiction In The Vicarious Admissions Exception, Norman B. Page Dec 1978

Elimination Of The Agency Fiction In The Vicarious Admissions Exception, Norman B. Page

Washington Law Review

This note will compare the Washington courts' application of the common law vicarious admissions exception to the broad rule embodied in Federal Rule 801(d)(2)(D). Furthermore, it will identify and analyze the policies upon which the vicarious admissions rule is grounded and will compare the effectiveness of the common law rule and the federal or "broad" rule in fulfilling those policies. It will demonstrate how, in focusing on the substantive law of agency rather than directly on those circumstances which tend to assure a statement's trustworthiness, both rules share a fundamental flaw and, as a result, accomplish only imprecisely the basic …


The Marital Privileges In Washington Law: Spouse Testimony And Marital Communications, Teresa Virginia Bigelow Dec 1978

The Marital Privileges In Washington Law: Spouse Testimony And Marital Communications, Teresa Virginia Bigelow

Washington Law Review

This comment is an attempt to analyze and clarify Washington marital privilege law. Each privilege is presented against the backdrop of policy rationales. This overview of the privileges is designed to facilitate their use and also to point out the great need for revision of the Washington law. In conclusion, two alternative approaches are presented as models for a revised set of Washington marital privileges.


Proposed Rule Of Evidence 609: Impeachment Of Criminal Defendants By Prior Convictions, D. Joseph Hurson Dec 1978

Proposed Rule Of Evidence 609: Impeachment Of Criminal Defendants By Prior Convictions, D. Joseph Hurson

Washington Law Review

This comment describes current Washington law on the use of criminal convictions to impeach the testimony of criminal defendants and examines the factors which are relevant to the formation of a more acceptable rule. Adoption of the proposed rule would also affect the rules for impeaching nondefendant witnesses. Only a criminal defendant, however, is in jeopardy of actually being convicted as a result of a jury's misuse of evidence of prior convictions. Because the interests of the criminal defendant witness will be so drastically affected by the prior conviction rule which the Washington Supreme Court ultimately adopts, this comment will …


Environmental Law: Progress Toward A Coherent Standard For The "Threshold Determination", John C. Hammar Dec 1978

Environmental Law: Progress Toward A Coherent Standard For The "Threshold Determination", John C. Hammar

Washington Law Review

Washington enacted the State Environmental Policy Act (SEPA) in 1971, which required that consideration be given to environmental factors for all developments proposed by either private or public entities. The legislature delegated authority to promulgate rules for SEPA's interpretation and implementation to a specially created state agency, the Council on Environmental Policy (CEP).9 The CEP was specifically directed to detail the procedures for completion of the "threshold determination," the test to determine whether an environmental impact statement (EIS) must be prepared. Responding to this task, it issued the SEPA Guidelines in December 1975, the culmination of two years of extensive …


Washington's New Home Implied Warranty Of Habitability—Explanation And Model Statute, Holly Keesling Towle Dec 1978

Washington's New Home Implied Warranty Of Habitability—Explanation And Model Statute, Holly Keesling Towle

Washington Law Review

This comment examines the status in Washington of the implied warranty of habitability as applied to the sale of new houses. The comment will explore the identity of the builder-vendor, the general nature of the warranty, and its specific elements. The Washington warranty is contrasted to those of other jurisdictions, suggestions are made for its modification, and a model statutory warranty is proposed.


Women's Self-Defense Under Washington Law—State V. Wanrow, 88 Wn. 2d 221, 559 P.2d 548 (1977), Jennifer Marsh Dec 1978

Women's Self-Defense Under Washington Law—State V. Wanrow, 88 Wn. 2d 221, 559 P.2d 548 (1977), Jennifer Marsh

Washington Law Review

The Washington Supreme Court, in State v. Wanrow, examined the issue of self-defense for women under Washington law and held that the application of traditional self-defense rules resulted in prejudicial treatment of women defendants. This note will examine the meaning of the Wanrow decision and offer support for its holding in light of available psychological and sociological data. Additionally, this note will suggest a special analytical framework utilizing social science data to test accepted legal doctrines for latent sex discrimination. The importance of these data in exposing such discrimination will be shown by examining related cases in the area of …


Special Estate Tax Valuation Of Farmland And The Emergence Of A Landholding Elite Class, Roland L. Hjorth Oct 1978

Special Estate Tax Valuation Of Farmland And The Emergence Of A Landholding Elite Class, Roland L. Hjorth

Washington Law Review

Examines Internal Revenue Code provisions on farmland as an inheritable asset, including those provisions that offer substantial tax savings.


The Longshoremen's And Harbor Workers' Compensation Act And The Invitee Standard: Maritime Law Gone Aground?, Thomas W. Burt Oct 1978

The Longshoremen's And Harbor Workers' Compensation Act And The Invitee Standard: Maritime Law Gone Aground?, Thomas W. Burt

Washington Law Review

Considers the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, especially circumvention of the exclusive benefits provision and "redistributing the liability for longshoring accidents so as to promote safety in the industry."


Jurisdiction To Zone Indian Reservations, Robert D. Wilson-Hoss Oct 1978

Jurisdiction To Zone Indian Reservations, Robert D. Wilson-Hoss

Washington Law Review

This comment will examine one of the most critical aspects of the civil jurisdiction issue—tribal jurisdiction to exercise land use planning and zoning control. With such jurisdiction, a tribe may regulate or prohibit the development of reservation lands, and thus exercise a measure of control over the future of its reservation. Without zoning jurisdiction, most tribes would be forced to submit to the judgments of non-Indians about the uses of reservation lands. An introduction to the history and patterns of land ownership on Indian reservations is important to an understanding of the clashes between Indian and non-Indian reservation residents. Equally …


Limited Partnership—Limited Control Through A Corporate General Partner—Frigidaire Sales Corp. V. Union Properties, Inc., 88 Wn. 2d 400, 562 P.2d 244 (1977), Lawrence Repeta Oct 1978

Limited Partnership—Limited Control Through A Corporate General Partner—Frigidaire Sales Corp. V. Union Properties, Inc., 88 Wn. 2d 400, 562 P.2d 244 (1977), Lawrence Repeta

Washington Law Review

Plaintiff entered into a contract to sell appliances to a limited partnership. The contract was signed on behalf of the limited partnership by two officers of its corporate general partner. The officers each owned fifty percent of the outstanding shares of the corporation. In addition, they each held a limited partner's unit in the limited partnership. When the partnership failed to pay installments due, plaintiff brought an action against the corporate general partner and against its two officers as individuals. The assertion of personal liability was based on a provision of the limited partnership statute under which limited partners may …


Malicious Prosecution Counterclaims Now Allowable In The Principal Action—Implicit Abandonement Of The Doctrine Of Strict Limitation—Wash. Rev. Code § 4.24.350 (Supp. 1977), Richard D. Vogt Oct 1978

Malicious Prosecution Counterclaims Now Allowable In The Principal Action—Implicit Abandonement Of The Doctrine Of Strict Limitation—Wash. Rev. Code § 4.24.350 (Supp. 1977), Richard D. Vogt

Washington Law Review

With the enactment of R.C.W. § 4.24.350,however, the Washington State Legislature has made the malicious plaintiff an endangered species in this state. The statute eliminates two major common law roadblocks—one procedural, the other substantive—to successful assertion of an action for malicious prosecution of an ordinary civil suit. Unfortunately, because the new law is so intimidatingly expansive in its apparent scope, potential plaintiffs with arguably valid claims may also be deterred from seeking legal redress.


Washington's Public Law 280, Jurisdiction On Indian Reservations, Allan Baris Oct 1978

Washington's Public Law 280, Jurisdiction On Indian Reservations, Allan Baris

Washington Law Review

In April 1977 a Ninth Circuit panel in Yakima I 5 ruled that R.C.W. ch. 37.12 violates the equal protection clause of the fourteenth amendment. The Supreme Court, in accepting review, has instructed the parties to prepare briefs on both the equal protection challenge and the issue of Washington's compliance with PL-280.17 Several Washington tribes have contended that R.C.W. ch. 37.12 fails to comply with PL-280 because (1) Washington failed to amend its constitution in order to remove a disclaimer of jurisdiction on Indian lands 18 and (2) PL-280 does not permit the assumption of partial jurisdiction by a state. …


Herring, Sardines, And Foreign Affairs: Determination Of Optimum Yield Under The Fishery Conservation And Management Act Of 1976—Maine V. Kreps, 563 F.2d 1043 (1st Cir.), Remanded, No. 77-45-Sd (S.D. Me. Aug. 26, 1977), Aff'd, 563 F.2d 1052 (1st Cir. 1977), William H. Beaver, Jr Oct 1978

Herring, Sardines, And Foreign Affairs: Determination Of Optimum Yield Under The Fishery Conservation And Management Act Of 1976—Maine V. Kreps, 563 F.2d 1043 (1st Cir.), Remanded, No. 77-45-Sd (S.D. Me. Aug. 26, 1977), Aff'd, 563 F.2d 1052 (1st Cir. 1977), William H. Beaver, Jr

Washington Law Review

This note will analyze the major issue of Maine v. Kreps, whether Secretary Kreps fulfilled the FCMA's requirements in her determination of optimum yield. This issue is discussed in two parts. First, the criteria expressed in the preliminary management plan are analyzed in light of the relevant provisions of the FCMA. Second, the inclusion of foreign policy considerations in the optimum yield calculations (a factor not discussed in the preliminary management plan) is analyzed by (1) inferring from the Maine opinion the proper use of foreign policy in management decisions, and (2) suggesting criteria which may affect the role of …


Domestic Relations—Breach Of Promise To Marry: Relic Revisited To Exclude Expectation Damages—Stanard V. Bolin, 88 Wn. 2d 614, 565 P.2d 94 (1977), D. Joseph Hurson Oct 1978

Domestic Relations—Breach Of Promise To Marry: Relic Revisited To Exclude Expectation Damages—Stanard V. Bolin, 88 Wn. 2d 614, 565 P.2d 94 (1977), D. Joseph Hurson

Washington Law Review

Plaintiff, relying on defendant's proposal of marriage, trained a replacement for her job, placed her home for sale, sold her furniture, and incurred normal expenses incidental to a future union. One month before the date of marriage, defendant informed plaintiff he would not fulfill his promise of marriage; she subsequently became ill, repurchased her home furnishings, and cancelled all wedding plans. Plaintiff brought suit for breach of promise to marry, seeking damages for (1) direct pecuniary losses; (2) pain, impairment to health, humiliation, embarrassment; and (3) loss of the expected financial security of marriage. The superior court dismissed the complaint …