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Articles 601 - 630 of 3365
Full-Text Articles in Law
The Legacy Of Solem V. Bartlett: How Courts Have Used Demographics To Bypass Congress And Erode The Basic Principles Of Indian Law, Charlene Koski
The Legacy Of Solem V. Bartlett: How Courts Have Used Demographics To Bypass Congress And Erode The Basic Principles Of Indian Law, Charlene Koski
Washington Law Review
Only Congress has authority to change a reservation’s boundaries, so when disputes arise over whether land is part of a reservation, courts turn to congressional intent. The challenge is that in many cases, Congress expressed its intent to diminish or disestablish a reservation as long as one hundred years ago through a series of “surplus land acts.” To help courts with their task, the Supreme Court in Solem v. Bartlett laid out a three-tiered analysis. This Comment examines how courts have applied modern demographics—part of Solem’s third and least probative tier—and demonstrates that they have consistently and primarily used the …
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Washington Law Review
The executive detention cases of the past several years demonstrate a rare but critical assertion of procedural law where the political branches fail to legislate or to properly implement substantive law. This is “muscular procedure”—the invocation of a procedural device to condition deference on political branch integrity. Courts have affected the law of national security in profound ways by requiring the political branches to adhere to a judicially imposed standard of transparency and deliberation. Courts have resolved the merits of individual enemy combatant challenges by rejecting executive branch decisions based on absolute secrecy, innuendo, tentativeness, or multiple levels of hearsay, …
American Federalism: Punching Holes In The Myth, Hugh D. Spitzer
American Federalism: Punching Holes In The Myth, Hugh D. Spitzer
Washington Law Review
Reviewing Safeguarding Federal: How States Protect Their Interests in National Policymaking, by John D. Nugent (2009).
Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones
Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones
Washington Law Review
Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change—albeit on a different trajectory—as …
The Cost Of Doing Business: Corporate Vicarious Criminal Liability For The Negligent Discharge Of Oil Under The Clean Water Act, Katherine A. Swanson
The Cost Of Doing Business: Corporate Vicarious Criminal Liability For The Negligent Discharge Of Oil Under The Clean Water Act, Katherine A. Swanson
Washington Law Review
In response to massive oil spills that damaged America’s waters, devastated local economies, killed wildlife, and cost taxpayers millions in clean-up costs, Congress passed the Oil Pollution Act of 1990. The Act amended the Federal Water Pollution Control Act to allow for criminal prosecution of negligent oil discharges. This Comment argues that although the plain language of the Federal Water Pollution Control Act’s negligent discharge provision is silent regarding corporate vicarious criminal liability, courts should give full effect to Congress’s intent—to protect the health and safety of the public and the environment and to stop corporations from accepting oils spills …
Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller
Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller
Washington Law Review
Administrative law doctrines for reviewing agency rulemaking, such as the Supreme Court’s dicta in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. and the D.C. Circuit’s hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis …
Urbanites Versus Rural Rights: Contest Of Local Government Land-Use Regulations Under Washington Preemption Statute 82.02.020, Donya Williamson
Urbanites Versus Rural Rights: Contest Of Local Government Land-Use Regulations Under Washington Preemption Statute 82.02.020, Donya Williamson
Washington Law Review
In Citizens’ Alliance for Property Rights v. Sims, the Court of Appeals of Washington held that King County clearing and grading regulations—recently enacted pursuant to the Washington State Growth Management Act—constitute an unlawful “tax, fee, or charge” on the development of land, thereby violating a Washington excise tax preemption statute. The court ruled that the clearing limitations do not qualify under the statutory exception for mitigation of development impacts since they are not calculated on a site-by-site basis. This Note argues that the ruling greatly expands the scope of this statutory limitation on local land-use regulation, compromises Growth Management …
Ninth Circuit V. Board Of Immigration Appeals: Defining "Sexual Abuse Of A Minor" After Estrada-Espinoza V. Mukasey, Enoka Herat
Ninth Circuit V. Board Of Immigration Appeals: Defining "Sexual Abuse Of A Minor" After Estrada-Espinoza V. Mukasey, Enoka Herat
Washington Law Review
Under the Immigration and Nationality Act (INA), lawful permanent residents are rendered removable if they commit an “aggravated felony” at any time after they are admitted into the United States. Significant interpretive issues arise in determining whether a non-citizen’s state-based criminal conviction meets the INA’s definition of an aggravated felony. One aggravated felony enumerated in the INA is “sexual abuse of a minor.” The Board of Immigration Appeals (BIA) has interpreted the phrase using a broad federal definition as a guide. In Estrada-Espinoza v. Mukasey, however, the Ninth Circuit declined to defer to the BIA’s interpretation because the BIA’s …
The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, Robert W. Gomulkiewicz
The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, Robert W. Gomulkiewicz
Washington Law Review
The Federal Circuit serves as the central appellate court for U.S. patent law appeals. Outside of patent law, scholars have noted the Federal Circuit’s distinct lack of influence on the law. Thus, unnoticed, the Federal Circuit has become one of the most influential actors in the creation of intellectual property licensing law. Its influence reaches across all areas of intellectual property, industries, and all federal circuits and state courts. But the Federal Circuit’s influence on licensing law is more than just a matter of academic interest: licensing is critical to innovation in the information economy. Licenses underlie the creation and …
Balancing Interests Under Washington's Statute Governing The Admissibility Of Extraneous Sex-Offense Evidence, Blythe Chandler
Balancing Interests Under Washington's Statute Governing The Admissibility Of Extraneous Sex-Offense Evidence, Blythe Chandler
Washington Law Review
American courts traditionally exclude evidence that a defendant has committed crimes other than the crime with which the defendant is charged. This rule, with exceptions, is codified as Federal Rule of Evidence 404(b) and Washington Evidence Rule 404(b). However, courts and legislatures have increasingly adopted the view that evidence of other sex offenses should be admissible in sex-offense prosecutions. The Washington State Legislature recently adopted a statute, RCW 10.58.090, which governs the admissibility of evidence of other sex offenses. This Comment argues that Washington courts should use precedent applying Rule 404(b) as a guide in applying robust Rule 403 balancing …
Code, Crash, And Open Source: The Outsourcing Of Financial Regulation To Risk Models And The Global Financial Crisis, Erik F. Gerding
Code, Crash, And Open Source: The Outsourcing Of Financial Regulation To Risk Models And The Global Financial Crisis, Erik F. Gerding
Washington Law Review
The widespread use of computer-based risk models in the financial industry during the last two decades enabled the marketing of more complex financial products to consumers, the growth of securitization and derivatives, and the development of sophisticated risk-management strategies by financial institutions. Over this same period, regulators increasingly delegated or outsourced vast responsibility for regulating risk in both consumer finance and financial markets to these privately owned industry models. Proprietary risk models of financial institutions thus came to serve as a “new financial code” that regulated transfers of risk among consumers, financial institutions, and investors. The spectacular failure of financial-industry …
Preempting State E-Verify Regulations: A Case Study Of Arizona's Improper Legislation In The Field Of "Immigration-Related Employment Practices", Rachel Feller
Washington Law Review
In 1996, Congress established E-Verify, a program that allows employers to confirm the employment eligibility of new hires by using a federal electronic database. Although the federal government makes the program voluntary for employers, some states and municipalities have enacted legislation requiring the program’s use to prevent the employment of undocumented workers. Some of these state laws have been challenged in federal court on the grounds that they are preempted by federal law, particularly the Immigration Reform and Control Act of 1986 (IRCA). Courts have divided on this issue. This Comment explains the boundaries of preemption in the context of …
Thoughts On The Ethical Culture Of A Prosecutor's Office, Patrick J. Fitzgerald
Thoughts On The Ethical Culture Of A Prosecutor's Office, Patrick J. Fitzgerald
Washington Law Review
I am truly honored to be asked to speak at this event, particularly an event held in honor of Norm Maleng. I want to talk about maintaining an ethical culture in a prosecutor’s office and give you a perspective on the things that have struck me after being an Assistant U.S. Attorney for about thirteen years—approaching seven years this fall as a U.S. Attorney, so about twenty years as a prosecutor. Some of the things I will say are obvious but worth repeating because we have to bear them in mind. Some are slightly subtle but worth pointing out. I …
The Legality Of Washington Shoreline Development Moratoria In The Wake Of Biggers V. City Of Bainbridge Island, Michelle E. Delappe
The Legality Of Washington Shoreline Development Moratoria In The Wake Of Biggers V. City Of Bainbridge Island, Michelle E. Delappe
Washington Law Review
The Washington State Supreme Court struck down the temporary shoreline development moratorium at issue in Biggers v. City of Bainbridge Island, 162 Wash. 2d 683, 169 P.3d 14 (2007); yet the court fragmented on the broader question of whether a local government has authority to adopt a moratorium on shoreline development during long-term land-use planning. In light of upcoming deadlines for the state’s local governments to revise their shoreline-management plans, constraints on local authority to adopt shoreline moratoria during the planning process take on heightened importance for hundreds of local governments. The question highlights the tension between private property …
York V. Wahkiakum School District And The Future Of School Searches Under The Washington State Constitution, Kerem Murat Levitas
York V. Wahkiakum School District And The Future Of School Searches Under The Washington State Constitution, Kerem Murat Levitas
Washington Law Review
In March 2008, the Supreme Court of Washington decided York v. Wahkiakum School District, a case involving mandatory, suspicionless drug testing of student athletes. The court struck down the testing regime, but, unable to agree on the grounds for invalidating the testing, issued three separate opinions. The lead opinion argued that suspicionless testing could never be countenanced under the Washington Constitution. Two concurrences argued that suspicionless testing could be permissible under certain circumstances pursuant to a variant of the federal special-needs doctrine. This Note reviews search-and-seizure protections under the United States and Washington constitutions, their application to school search …
Trading Information For Safety: Immigrant Informants, Federal Law-Enforcement Agents, And The Viability Of Non-Deportation Agreements, Colleen Melody
Trading Information For Safety: Immigrant Informants, Federal Law-Enforcement Agents, And The Viability Of Non-Deportation Agreements, Colleen Melody
Washington Law Review
Federal law-enforcement agents use informants to help guide investigations. Immigrants sometimes possess valuable information about organized crime connected with their home countries. To persuade an immigrant to divulge such information, federal agents and prosecutors often promise to reward cooperation with permission to stay in the United States. Non-deportation is a persuasive enticement to an informant who might otherwise be unwilling to help; criminal groups would likely harm a known informant returning home. After deciding to cooperate, many immigrants are placed in deportation proceedings notwithstanding their deals. This Comment discusses the persistent legal conundrum faced by immigrant informants after the U.S. …
The Domestic Incorporation Of Human Rights Law And The United Nations Convention On The Rights Of Persons With Disabilities, Janet E. Lord, Michael Ashley Stein
The Domestic Incorporation Of Human Rights Law And The United Nations Convention On The Rights Of Persons With Disabilities, Janet E. Lord, Michael Ashley Stein
Washington Law Review
This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic …
Four-Factor Disaster: Courts Should Abandon The Circuit Test For Distinguishing Government Speech From Private Speech, Lilia Lim
Washington Law Review
A recent addition to First Amendment jurisprudence, the government-speech doctrine was developed by the Supreme Court to insulate government speech from certain First Amendment challenges. Broadly, the doctrine rests on the notion that when the government speaks for itself, it may say what it wishes. Recently, government entities facing claims of viewpoint discrimination against speech have asserted a government-speech defense, claiming that their viewpoint-based actions were justifiable because they were not regulating private speech but speaking for themselves. Several federal courts deciding these cases have applied a circuit-developed, four-factor test to determine whether the speech at issue was private speech …
Disability, Vulnerability, And The Limits Of Antidiscrimination, Ani B. Satz
Disability, Vulnerability, And The Limits Of Antidiscrimination, Ani B. Satz
Washington Law Review
Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination—an approach for which activists fought for twenty years prior to the enactment of the ADA—may not adequately address disability discrimination. Some critics advocate a return to the social …
"Everybody Is Making Love Or Else Expecting Rain": Considering The Sexual Autonomy Rights Of Persons Institutionalized Because Of Mental Disability In Forensic Hospitals And In Asia, Michael L. Perlin
Washington Law Review
One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures. As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal-justice system: who may be incompetent to stand trial; who have been found incompetent …
Reading Too Much Into What The Court Doesn't Write: How Some Federal Courts Have Limited Title Vii's Participation Clause's Protections After Clark County School District V. Breeden, Lawrence D. Rosenthal
Reading Too Much Into What The Court Doesn't Write: How Some Federal Courts Have Limited Title Vii's Participation Clause's Protections After Clark County School District V. Breeden, Lawrence D. Rosenthal
Washington Law Review
In 2001, the Supreme Court issued its opinion in Clark County School District v. Breeden, in which it refused to determine what a plaintiff must prove to demonstrate that she engaged in “protected activity” under Title VII’s anti-retaliation provision’s opposition clause. Although the Court declined to answer this question, courts have interpreted Breeden as requiring an opposition-clause plaintiff to prove a good-faith, objectively reasonable belief of an unlawful employment practice. Although Breeden involved Title VII’s opposition clause, some courts are now applying Breeden to cases involving Title VII’s participation clause. This is baffling for two reasons. First, Breeden involved …
It's Not Too Late: Applying Continuing Violation Theory To The Designation Of Critical Habitat Under The Esa, Amelia Boone
It's Not Too Late: Applying Continuing Violation Theory To The Designation Of Critical Habitat Under The Esa, Amelia Boone
Washington Law Review
The Endangered Species Act (ESA or the Act) requires the United States Fish and Wildlife Service (the Service) to designate critical habitat for every species it lists as threatened or endangered. Generally, the Service must designate critical habitat within one year of listing the species. If it cannot determine the species’ habitat at the moment of listing, it can issue a finding of “not determinable,” which gives it one additional year to study the species and its habitat needs. At the end of that additional year, the Service must list the critical habitat, using whatever data is available. On close …
Forceful Minimization, Hein V. Freedom From Religion Foundation, Inc., And The Prudence Of "Not Doing", Brendan R. Mcnamara
Forceful Minimization, Hein V. Freedom From Religion Foundation, Inc., And The Prudence Of "Not Doing", Brendan R. Mcnamara
Washington Law Review
Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds …
Transitioning The Family Business, Dwight Drake
Transitioning The Family Business, Dwight Drake
Washington Law Review
By any measure, family-dominated businesses are the backbone of the American economy. Although a large majority of family businesses are managed by senior family members who are older than age 55 and more than 80 percent of such senior family members claim that they want the business to remain in the family, less than 30 percent of such businesses have tackled the challenge of developing a plan for transitioning the business to the next generation. For over 90 percent of such families, this planning challenge is aggravated by the fact that they have no diversified wealth: the family’s wealth is …
Bypassing Redundancy: Resolving The Jurisdictional Dilemma Under The Defense Base Act, Claire Been
Bypassing Redundancy: Resolving The Jurisdictional Dilemma Under The Defense Base Act, Claire Been
Washington Law Review
In 1941, Congress passed the Defense Base Act (DBA) to provide workers’ compensation coverage to civilian workers employed overseas under U.S. government contracts or on U.S. military bases. Congress modeled the DBA after the Longshore and Harbor Workers’ Compensation Act (Longshore Act), modifying certain provisions to provide for accidents that occur overseas. In 1972, Congress amended the procedures governing review of claims under the Longshore Act. The amendments required workers to appeal claim-related decisions to a new administrative board and then to a U.S. court of appeals. Before the amendments, a worker’s first appeal under the Longshore Act was to …
Got Water? Limiting Washington's Stockwatering Exemption To Five Thousand Gallons Per Day, Kara Dunn
Got Water? Limiting Washington's Stockwatering Exemption To Five Thousand Gallons Per Day, Kara Dunn
Washington Law Review
In Washington, a comprehensive groundwater code governs groundwater withdrawals and use. This regulatory scheme protects water users, minimizes disputes over water rights, and maximizes the beneficial use of public water resources. Despite these protections, groundwater resources are declining in many parts of the state. Washington exempts certain types of small withdrawals from the groundwater code’s regulations, including water for livestock. Conflicting interpretations of this stock-watering exemption have created uncertainty over whether exempt stock-watering withdrawals are unlimited, or are limited to 5000 gallons per day. This Comment analyzes the conflicting interpretations of the groundwater exemption statute under Washington’s rules of statutory …
Swiss Cheese That's All Hole: How Using Reading Material To Prove Criminal Intent Threatens The Propensity Rule, Jessica Murphy
Swiss Cheese That's All Hole: How Using Reading Material To Prove Criminal Intent Threatens The Propensity Rule, Jessica Murphy
Washington Law Review
In United States v. Curtin, the Ninth Circuit, sitting en banc, held that Federal Rule of Evidence 404(b) permits a defendant’s reading material to be introduced as evidence of his intent to commit a crime. The decision expressly overruled Guam v. Shymanovitz, an earlier Ninth Circuit opinion that called the admissibility of reading material into question. This Note argues that the Curtin decision failed to appreciate the extent to which reading material may reveal only a defendant’s propensity to commit a charged crime, rather than his or her intent to do so. To reduce the possibility that impermissible …
The Evolution Of Intellectual Infrastructure, Peter Lee
The Evolution Of Intellectual Infrastructure, Peter Lee
Washington Law Review
This Article explores the concept of intellectual infrastructure in intellectual property law. It makes three principal contributions. First, it builds upon prior work to elaborate an infrastructure-based theory of productivity that encompasses trademark, copyright, and patent law. It is well-recognized that intellectual property law promotes productivity through allowing exclusive rights on refined intellectual creations such as source-identifying marks, particularized expressions, and specific inventions. Somewhat less appreciated, these bodies of law also promote productivity through ensuring wide access to productivity-enabling “intellectual infrastructure,” such as generic words, ideas, and natural principles, by making these assets ineligible for exclusive rights. This Article argues …
Abortion, Persuasion, And Emotion: Implications Of Social Science Research On Emotions For Reading Casey, Jeremy A. Blumenthal
Abortion, Persuasion, And Emotion: Implications Of Social Science Research On Emotions For Reading Casey, Jeremy A. Blumenthal
Washington Law Review
Although abortion jurisprudence under Planned Parenthood of Southeastern Pennsylvania v. Casey condones State efforts to persuade a woman to forego an abortion in favor of childbirth, the opinion’s “truthful and not misleading” language can be read more broadly than it traditionally has. Specifically, even a truthful message may mislead when it inappropriately takes advantage of emotional influence to bias an individual’s decision away from the decision that would be made in a non-emotional, fully informed state. Drawing on empirical research in the social sciences, I suggest that the sort of emotional information that many states now provide in their “informed …
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
Washington Law Review
In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …