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Articles 1741 - 1770 of 3365
Full-Text Articles in Law
Criminal Law—Multiple Punishment Under The Organized Crime Control Act—A Need For Reexamination Of Wharton's Rule And Double Jeopardy—Iannelli V. United States, 420 U.S. 770 (1975), Christopher L. Koch
Criminal Law—Multiple Punishment Under The Organized Crime Control Act—A Need For Reexamination Of Wharton's Rule And Double Jeopardy—Iannelli V. United States, 420 U.S. 770 (1975), Christopher L. Koch
Washington Law Review
Robert lannelli and seven other petitioners were charged with conspiring to violate and violating 18 U.S.C. § 1955, a federal gambling statute which makes it a crime for five or more persons to conduct, finance, manage, supervise, direct, or own a gambling business prohibited by state law. Each petitioner was convicted of both offenses, and each was sentenced under both counts. On appeal the petitioners argued that conviction of both conspiracy and the substantive offense was precluded by Wharton's Rule, a common law exception to the principle that a substantive offense and a conspiracy to commit the offense are distinct …
Attorneys' Fees—Public Interest Law—Beyond Alyeska: Creating A Workable Private Attorney General Exception—Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975), Stephen M. Todd
Washington Law Review
Following a successful appeal in litigation undertaken in the public interest, plaintiffs Wilderness Society and others requested an award of attorneys' fees. The Court of Appeals for the District of Columbia Circuit adopted the "private attorney general" exception to the American rule which bars fee shifting and authorized an award against codefendant Alyeska Pipeline Service Company of one-half of the reasonable value of the legal services utilized by plaintiffs. On certiorari, the Supreme Court reversed. Held: Absent congressional authorization, federal courts lack the equity power to award attorneys' fees to a private litigant for the vindication of a statutory right. …
The New Dimensions Of Constitutional Adjudication, Archibald Cox
The New Dimensions Of Constitutional Adjudication, Archibald Cox
Washington Law Review
The new dimensions to which my title refers are of a different order; they are not substantive but institutional. That the Supreme Court has always played a partly political role—that it has always made a certain amount of public policy in some areas under the guise of interpreting the Constitution—is all too obvious. That it has usually felt partly bound by "law" is equally obvious to anyone who understands the self-discipline of the legal method. The question of emphasis always remains. How large or small is—or should be—the political element in judicial decisions? There also remains a second question. How …
Reductions In Force Rationale: Teachers "Riffed" In Levy Losses, Patricia J. O'Hanley
Reductions In Force Rationale: Teachers "Riffed" In Levy Losses, Patricia J. O'Hanley
Washington Law Review
This comment will review the development of due process requirements for teacher reduction in force in Washington, and will consider the specificity of notice required and the use of seniority as a standard for nonrenewals. It will examine the adverse impact of the Pierce decision in implicitly upholding the delegation of staff reduction responsibility by schools' boards of directors to individual building personnel, concluding that seniority no longer holds the preferred position of the earlier interpretation in Thayer v. Anacortes School District, but is modified by individual district policies and guidelines.
Restructuring The Legislature: A Proposal For Unicameralism In Washington, Randall A. Peterman, Philip Talmadge
Restructuring The Legislature: A Proposal For Unicameralism In Washington, Randall A. Peterman, Philip Talmadge
Washington Law Review
The tenability of such a unicameral legislature in Washington will be analyzed by examining: 1) the background and history of unicameralism; 2) the effect of the reapportionment cases on the need for a bicameral legislature; 3) the "efficiency" of a unicameral as opposed to a bicameral legislature; and 4) means of implementing a change from bicameralism to unicameralism. In addition, results of the authors' poll of state legislators and a sample constitutional amendment are presented.
Criminal Law—Affirmative Defenses In The Washington Criminal Code—The Impact Of Mullaney V. Wilbur, 421 U.S. 684 (1975), Pamela Cowan
Criminal Law—Affirmative Defenses In The Washington Criminal Code—The Impact Of Mullaney V. Wilbur, 421 U.S. 684 (1975), Pamela Cowan
Washington Law Review
A Maine jury found Stillman E. Wilbur, Jr., guilty of murder after the prosecution's proof of two elements: (1) that the homicide was unlawful, and (2) that it was intentional. Wilbur offered no evidence on his behalf to negate or otherwise refute the state's case other than his statement that he attacked the deceased in a frenzy provoked by a homosexual advance. The trial judge instructed the jury that if the prosecution established the above two elements, malice aforethought was to be conclusively inferred, unless the defendant proved by a fair preponderance of the evidence that he had acted in …
Medical Malpractice—Unconscious Patient—Liability For Defective Instruments—Hospitals And Enterprise Liability—Anderson V. Somberg, 67 N.J. 291, 338 A.2d 1 (1973), John Ludlow
Washington Law Review
In November 1967, defendant Dr. Somberg performed spinal surgery, using general anesthetic, on the plaintiff. During the procedure a jaw of the pituitary rongeur he was using broke off and lodged in the plaintiff's spine. The doctor terminated the operation after numerous unsuccessful attempts to recover the fragment. Four months later he retrieved the jaw in a second operation. The plaintiff suffered permanent injuries for which he sought recovery from the following: (1) Dr. Somberg for negligently causing the rongeur to break; (2) the hospital in which the surgery was performed for negligently furnishing a defective instrument; (3) the medical …
Constitutional Law—Freedom Of The Press—Newsman's Privilege To Refuse Disclosure Of Confidential Sources In Criminal Trial—Farr V. Pitchess, 522 F.2d 464 (9th Cir. 1975), Cert. Denied, 98 S. Ct. 3200 (1976), Brian A. Morrison
Washington Law Review
Although interpreting prior case law to create a limited constitutional newsman's privilege, the Farr court did not adequately weigh the appropriate competing interests in denying the reporter's privilege to protect the confidentiality of his sources. This note will suggest that the court's overreliance upon the fair trial interest and its failure to analyze the newsman's testimonial privilege precluded the court from effectively utilizing the balancing test it stated to be applicable. As will be demonstrated, evaluation of the first amendment interest, when weighed against the opposing need for disclosure, should have led to a contrary decision in Farr.
Federal Securities Law—Fraud—Supreme Court Affirmation Of The Birnbaum Rule—Blue Chip Stamps V. Manor Drug Stores, 421 U.S. 723 (1975), Douglass A. North
Federal Securities Law—Fraud—Supreme Court Affirmation Of The Birnbaum Rule—Blue Chip Stamps V. Manor Drug Stores, 421 U.S. 723 (1975), Douglass A. North
Washington Law Review
This note will examine the historical background and development of the Birnbaum rule and will consider the Supreme Court's reasoning in its first examination of that rule. Taking the position that the Birnbaum rule is generally a useful one, this note nevertheless suggests that the rule should be applied more flexibly in the future in order to achieve its twin objectives of admitting valid claims and excluding nuisance suits. Particularly questioned will be the Court's failure to delineate and consider separately the validity of the substantive portion of the Birnbaum rule; the Court's wholehearted acceptance of the rule, which casts …
Symposium: Law And The Correctional Process In Washington. Editor's Note, Philip Talmadge
Symposium: Law And The Correctional Process In Washington. Editor's Note, Philip Talmadge
Washington Law Review
In recent months the Washington correctional system has come under aittack for failing to limit criminal activity by effectively deterring future offenders or successfully treating those offenders presently within the system. Responding to this public interest, this Symposium issue examines the adult correctional system, the jails, juvenile proceedings, and commitment procedures in Washington. The reader is provided with a step-by-step explanation of these proceedings, and personal observations from those intimately involved with corrections are also included to acquaint the reader with the thought processes of individuals implementing the correctional system. The Washington Law Review hopes that these materials will not …
Improving The Criminal Justice System: The Need For A Commitment, Donald J. Horowitz
Improving The Criminal Justice System: The Need For A Commitment, Donald J. Horowitz
Washington Law Review
Society asks a great deal of the criminal justice system. It asks for protection, punishment, rehabilitation, and humanity; it simultaneously asks that the system operate accurately, efficiently and fairly. Recently, societal concern has been sharply focused on the criminal justice system and most particularly on its correctional and sentencing aspects. The rising crime rate is blamed on the failure of the system to deal properly with offenders. This assumes too great a potency in the criminal justice system however; many other factors in society have a far greater impact on the incidence of crime and violence. The criminal justice system, …
A Rebuttal To The Attack On The Indeterminate Sentence, Sue Titus Reid
A Rebuttal To The Attack On The Indeterminate Sentence, Sue Titus Reid
Washington Law Review
As the preceding sentence indicates, the indeterminate sentence has recently come under attack. Although criticisms that should be considered seriously can be directed at the indeterminate sentence, the time for its abolition has not yet arrived. This article will discuss the history and treatment philosophy underlying the indeterminate sentence, but will not consider all the objections to the indeterminate sentence. Rather, the focus will be on the philosophical and practical problems of implementing the treatment philosophy. It will conclude that the system itself should not be viewed as solely responsible for its shortcomings because abuses of the system, as well …
Washington Jails: A Legislative Failure, Bob Free
Washington Jails: A Legislative Failure, Bob Free
Washington Law Review
This article will examine the present condition of Washington's jails and the existing statutes governing them. It concludes that the passage of comprehensive jail standards legislation is needed to protect the rights of the confined.
Juvenile Court: The Legal Process As A Rehabilitative Tool, Bobbe Jean Ellis
Juvenile Court: The Legal Process As A Rehabilitative Tool, Bobbe Jean Ellis
Washington Law Review
The author's study, reported in this comment, had two objectives. First, it attempted to determine whether a juvenile's experience with the traditional sociological model or with the legal due process model is more likely to motivate him to feel positively toward the legal system. Second, this study attempted to measure the attitudes of the professionals in the juvenile system (judges, attorneys, and caseworkers) toward the two models. The results of the study, although not all were statistically significant, indicated that although the professionals favored the traditional sociological model, the use of the legal-due process model was more likely to result …
Constitutional Law—Due Process—Civil Commitment—Absent Treatment, A Nondangerous Mentally Ill Person Able To Survive Safely In Society Has A Constitutional Right To Release—O'Connor V. Donaldson, 422 U.S. 563 (1975), Sheila M. Burnstein
Washington Law Review
Plaintiff Kenneth Donaldson, a former state mental patient, brought an action for damages under 42 U.S.C. § 19831 in federal district court against five state hospital officials alleged to have intentionally and maliciously deprived him of his constitutional right to liberty. Despite repeated efforts to secure his release, the plaintiff was confined in a Florida state mental hospital for nearly fifteen years following his civil commitment in 1957 for care, maintenance, and treatment. Although the plaintiff was provided with routine custodial care during his hospital stay, he received no psychiatric treatment for his presumed mental illness. Contending that the defendants …
Prisoners' Right Of Access To Courts: Planning For Legal Aid, Geoffrey P. Alpert
Prisoners' Right Of Access To Courts: Planning For Legal Aid, Geoffrey P. Alpert
Washington Law Review
The civil rights movement has reached into prisons and jails, directing public attention to the fact that prisoners are also beneficiaries of the rights and privileges that the Constitution extends to all citizens. After a discussion of the development of prisoners' rights, this article will survey the major cases establishing prisoners' rights of access to courts and legal assistance. It will summarize previous research dealing with prisoners and their legal problems on a national scale, and extend that research by presenting the findings of a recent research project conducted in the Washington State prison system evaluating the legal needs of …
The Board Of Prison Terms And Paroles: Criteria In Decision Making, George W. Johnson
The Board Of Prison Terms And Paroles: Criteria In Decision Making, George W. Johnson
Washington Law Review
The following is a summary of the mechanics of the Board's operation in the sentencing process, after which the policies underlying its decision-making process will be examined. The State of Washington has a modified indeterminate sentence structure. The maximum term for each felony is limited by statute and, if the arrestee is convicted, the court must impose a maximum term within the statutory guidelines. The minimum term is generally fixed by the Board. Neither the court-imposed maximum nor the Board-determined minimum actually indicates the length of time necessarily spent in prison, however, because Washington has a good time law which …
A Judge's Personal Perspective On Criminal Sentencing, Solie M. Ringold
A Judge's Personal Perspective On Criminal Sentencing, Solie M. Ringold
Washington Law Review
The imposition of sanctions on convicted offenders is a principal vehicle for accomplishing the goals of the criminal law. An appropriate sentencing disposition is as important to the integrity of our system of justice as is the just determination of guilt. Yet the problems, questions, frustrations and self-analysis involved in the sentencing process are complex and heavy burdens. Each judge required to impose a criminal sentence is faced with the difficult tasks of determining the future life of the individual before him or her, balancing the impact on the individual with the needs of society, and drawing the line between …
The Board Of Prison Terms And Paroles And Indeterminate Sentencing: A Critique, Jack Meyerson
The Board Of Prison Terms And Paroles And Indeterminate Sentencing: A Critique, Jack Meyerson
Washington Law Review
The Board of Prison Terms and Paroles is given the authority to release most felons from prison when it has determined that the prisoner has been rehabilitated, regardless of the length of time the prisoner has served. Rehabilitation usually consists of satisfactory participation in a formal prison program designed to change the person's criminal behavior into behavior which is more acceptable. The Board has, however, become a target of manipulation by prisoners who indicate outward compliance with rehabilitation procedures in order to be deemed "rehabilitated" and therefore released from prison prior to the expiration of their maximum sentences. In order …
A Perspective On Adult Corrections In Washington, Richard C.J. Kitto, Jr.
A Perspective On Adult Corrections In Washington, Richard C.J. Kitto, Jr.
Washington Law Review
Any proposals for reform of Washington's correctional process must be evaluated in the context of factual information concerning the present system. This comment will familiarize those interested in correctional issues with the legal and institutional framework of the Washington system. The first section of the comment describes the course of events experienced by an adult offender immediately after conviction of a felony, whether upon a guilty plea or by a verdict of guilty following a trial. It examines the probation decision, the sentencing process, the institutions, and the parole considerations for those offenders subject to the correctional system. The second …
Good Intentions Gone Awry—A Proposal For Fundamental Change In Criminal Sentencing, Christopher T. Bayley
Good Intentions Gone Awry—A Proposal For Fundamental Change In Criminal Sentencing, Christopher T. Bayley
Washington Law Review
This article will discuss the individual treatment model and analyze the fallacies of current sentencing practices and philosophies. Concluding that the treatment model is inappropriate because it fails to consider fundamental principles of justice and the purposes of the criminal law, it will offer an alternative proposal for sentencing that is not dependent on the theory of rehabilitation.
Mental Commitment And The Principle Of Equivalence, Stephen E. Oliver
Mental Commitment And The Principle Of Equivalence, Stephen E. Oliver
Washington Law Review
This comment advances the argument—herein referred to as the principle of equivalence—that because these trial and commitment proceedings are analytically more similar than different, the same standards of due process should be applied to each.
Tax Consequences Of Post-Dissolution Support Payment Arrangements, Roland L. Hjorth
Tax Consequences Of Post-Dissolution Support Payment Arrangements, Roland L. Hjorth
Washington Law Review
The economic settlement accompanying a marriage dissolution may consist of one or both of the following: (1) the initial "property settlement," sometimes referred to as a "division" of property when only community property is involved; and (2) provisions for maintenance payments categorized as alimony, child support, or some combination thereof. The tax problems of property settlements have been analyzed previously by the author. They are considered here only to the extent necessary to distinguish property settlements paid in installments from periodic maintenance payments made for the support of a former spouse, or for children of the marriage, or both. The …
Professional Responsibility: Education And Enforcement, Robert H. Aronson
Professional Responsibility: Education And Enforcement, Robert H. Aronson
Washington Law Review
The failure of the Bar to regulate effectively the ethical conduct of its members is not solely the failure of law school teaching methodology. A much more serious deficiency-and one far more difficult to resolve—concerns the way lawyers perceive and attempt to enforce professional responsibility. Instead of providing an analytical framework which the individual lawyer can employ in considering problems arising in practice, the legal profession has chosen a series of ambiguous and only tangentially related rules which are often contradictory or misleading. Because these situation-oriented rules do not clearly encompass even a majority of the myriad factors potentially relevant …
Unemployment Compensation—Spouse's Relocation Due To Employment Is A Compelling Person Reason Constituting Good Cause For Voluntary Termination—Ayers V. Department Of Employment Security, 85 Wn. 2d 550, 536 P.2d 610 (1975), Pamela A. Okano
Washington Law Review
This note will analyze the impact of Ayers upon the traditional dual administrative test of "no alternative" and "preservation of employment" used to determine whether, under the particular facts and circumstances, "compelling personal reasons"' meeting the statutory requirement of good cause for voluntary termination of employment exist. Although the Washington court did not discuss this test, the Ayers decision should not be construed as a rejection of its continued vitality. In addition, this note will analyze the factors which should be considered when applying the "no alternative" and "preservation of employment" standards to spouse relocation situations in the wake of …
Criminal Procedure—Filing By Information: Determination Of Probable Cause Required Before Extended Restraint On Liberty—Gerstein V. Pugh, 420 U.S. 103 (1975), Cynthia B. Whitaker
Criminal Procedure—Filing By Information: Determination Of Probable Cause Required Before Extended Restraint On Liberty—Gerstein V. Pugh, 420 U.S. 103 (1975), Cynthia B. Whitaker
Washington Law Review
Robert Pugh was arrested in Florida without a warrant and charged by prosecutor's information. Pugh and other incarcerated arrestees charged by information without a preliminary hearing brought a class action suit in federal district court challenging the constitutionality of the charging procedure. Plaintiffs maintained that the due process clause of the fourteenth amendment required that accused persons be accorded a determination of probable cause for detention soon after their arrest. They also argued that the prosecuting attorney was not sufficiently neutral or detached to make the necessary determination. The district court accepted the plaintiffs' arguments, and the Court of Appeals …
Property—Probate Law & Procedure—No More Probate? Wash. Rev. Code § 11.02.090 (1974), Tom Graafstra
Property—Probate Law & Procedure—No More Probate? Wash. Rev. Code § 11.02.090 (1974), Tom Graafstra
Washington Law Review
A new section of the Revised Code of Washington, effective October 1, 1974, has the potential for making probate the exception in Washington rather than the rule. The statute, R.C.W. § 11.02.090, characterizes as nontestamentary certain provisions in a variety of written instruments and enables property to pass at death without compliance with the statute of wills. It may extend the concept of probate-avoidance, best exemplified by the community property agreement, to a broader range of circumstances than under prior Washington case law. Although this section makes the Washington law on probate-avoiding instruments clearer and more consistent, as it was …
Community And Separate Property Interests In Life Insurance Proceeds: A Fresh Look, James M. Higbee
Community And Separate Property Interests In Life Insurance Proceeds: A Fresh Look, James M. Higbee
Washington Law Review
This comment examines the difficult problem of characterizing the proceeds of a life insurance policy as separate or community property where the policy insures the life of a spouse and premiums have been paid with both separate and community funds. The problem commonly arises when a person takes out a life insurance policy while single, pays the first few premiums from separate funds, and then maintains the policy with community funds following marriage. Upon death of the insured spouse, the characterization of the proceeds as separate or community or partially both is significant for two reasons. Not only may such …
Administrative Law—Shorelines Management—Judicial Review Of Shorelines Hearings Board Decisions—Department Of Ecology V. Ballard Elks Lodge No. 827, 84 Wn. 2d 551, 527 P.2d 1121 (1974), Glenna Spitzer Hall
Administrative Law—Shorelines Management—Judicial Review Of Shorelines Hearings Board Decisions—Department Of Ecology V. Ballard Elks Lodge No. 827, 84 Wn. 2d 551, 527 P.2d 1121 (1974), Glenna Spitzer Hall
Washington Law Review
Appellant, a fraternal lodge owning a parcel of real estate including tidelands on Shilshole Bay in Seattle, Washington, applied to the City for a substantial development permit pursuant to requirements of the Washington Shoreline Management Act (SMA). The initial application proposed an over-the-water lodge building, constructed entirely on filled tideland, exceeding the SMA's 35-foot height restriction. A second, modified application reduced the building's height, provided an easement for public access to the water's edge, and proposed construction of the lodge building over the water on pilings rather than on filled tidelands. The area selected for construction was one of relatively …
Labor Law—Arbitration And Award—Limits To Arbitral Authority And A Standard Of Review For Arbitral Awards Against Successor Employers—United Steelworkers V. United States Gypsum Co., 492 F.2d 714 (5th Cir.), Cert. Denied 419 U.S. 998 (1974), Eric Richter
Washington Law Review
In United Steelworkers v. United States Gypsum Co. the Court of Appeals for the Fifth Circuit reviewed an arbitral award against a successor employer. In so doing, the court applied the doctrine which traditionally has governed arbitration awards against parties who have contracted to arbitrate. This note will examine the arbitral process in Gypsum against the background of the successor's duty to arbitrate and the standards evolved to govern this arbitration process. It concludes that the special circumstances under which the successor employer faces arbitration require imposition of cognizable limits on the authority of the arbitrator, subject to the review …