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Articles 781 - 810 of 3365
Full-Text Articles in Law
Freedom's Associations, Jason Mazzone
Freedom's Associations, Jason Mazzone
Washington Law Review
This Article offers a new approach to the protection of associations under the Constitution. Although the modem Supreme Court's doctrine of freedom of association is based on expression, in the early Republic associations were understood not in terms of free speech, but in terms of freedom of assembly and popular sovereignty. On this account, associations are constitutionally significant because they allow for self-government. Popular sovereignty also offers a more useful basis for understanding freedom of association today. This Article therefore provides tools for assessing the proper scope of constitutional protections for associations once they are understood in terms of popular …
Racketeering, Rico And The Revenue Rule In Attorney General Of Canada V. R.J. Reynolds: Civil Rico Claims For Foreign Tax Law Violations, Elizabeth J. Farnam
Racketeering, Rico And The Revenue Rule In Attorney General Of Canada V. R.J. Reynolds: Civil Rico Claims For Foreign Tax Law Violations, Elizabeth J. Farnam
Washington Law Review
When Congress passed the Racketeer Influenced Corrupt Organizations Act (RICO), it created a civil cause of action for any entity, including a foreign government, to recover for injury caused by a defendant's pattern of racketeering activity. However, Congress did not expressly indicate how the revenue rule, a conflict of laws doctrine that allows a court to decline to enforce a foreign government's tax claim or judgment, would relate to civil RICO claims. In Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., the United States Court of Appeals for the Second Circuit held that the revenue rule barred …
Pennies From Heaven—Why Washington Legal Foundation V. Legal Foundation Of Washington Violates The U.S. Constitution, Kristi L. Darnell
Pennies From Heaven—Why Washington Legal Foundation V. Legal Foundation Of Washington Violates The U.S. Constitution, Kristi L. Darnell
Washington Law Review
In Washington Legal Foundation v. Legal Foundation of Washington, the Ninth Circuit Court of Appeals held that Washington's Interest on Lawyers' Trust Account (IOLTA) program did not perpetuate a "taking without just compensation" in violation of the Fifth Amendment. Even though the court acknowledged that IOLTA-generated interest was client property, the first element necessary to establish a taking, it reasoned that the appropriate subsequent analysis for this problem was the ad hoc test. Applying the ad hoc test to the IOLTA program, the court concluded that the requisite unconstitutional elements were absent. This Note argues that the Ninth Circuit …
Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn
Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn
Washington Law Review
Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …
Keffeler V. Department Of Social And Health Services: How The Supreme Court Of Washington Mistook Caring For Children As Robbing Them Blind, Tobias J. Kammer
Keffeler V. Department Of Social And Health Services: How The Supreme Court Of Washington Mistook Caring For Children As Robbing Them Blind, Tobias J. Kammer
Washington Law Review
Social Security benefits aid in the basic care of beneficiaries. Washington's Department of Social and Health Services (DSHS) used benefits toward this end until Keffeler v. Department of Social and Health Services. In Keffeler, the Supreme Court of Washington ruled that DSHS, even when acting as representative payee, could not use a foster child's Social Security benefits to pay for his or her current maintenance. The court held that DSHS's use of Social Security benefits to pay for the current maintenance of foster children violated 42 U.S.C. § 407 of the Social Security Act, which protects Social Security …
Posner's Pragmatism And Payton Home Arrests, Matthew A. Edwards
Posner's Pragmatism And Payton Home Arrests, Matthew A. Edwards
Washington Law Review
In recent years, Richard A. Posner, a respected federal appellate judge and prolific scholar, has been at the vanguard of a resurgence of interest in legal pragmatism. Posner and other scholars have called for judges to expand their horizons beyond conventional legal reasoning and to embrace interdisciplinary methodology and empirical research in the legal decisionmaking process. At the same time, however, prominent jurisprudential scholars have expressed both practical and philosophical objections to Posner's controversial prescription for increased judicial reliance on social science research. This Article seeks to explore the value and limits of Posner's pragmatism and empirical inquiry in the …
Sovereign Impunity: The "Uniform Laws" Theory Tries (And Fails) To Take A Bankruptcy-Sized Bited Out Of The Eleventh Amendment, Cecily Fuhr
Washington Law Review
Sovereign immunity represents the principle that a state cannot be subjected to suit without its consent. In bankruptcy proceedings, it is sometimes necessary for a debtor to file an adversary proceeding against a creditor to determine the dischargeability of a debt. When the creditor is a state, the exercise of sovereign immunity by that state can pose an obstacle to the total discharge of debts contemplated by the bankruptcy system. Courts have found unconstitutional recent attempts by Congress to abrogate states' sovereignty in § 106(a) of the Bankruptcy Code. In response, some courts have adopted a "uniform laws" theory. This …
Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee
Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee
Washington Law Review
In LaVine v. Blaine School District, the Ninth Circuit allowed a school to expel a student for writing a poem about a school shooting. The court held that the school did not violate the student's First Amendment rights because the school could reasonably forecast that the student would cause a substantial disruption or material interference with school activities. This Note argues that the LaVine court incorrectly applied the established standards for evaluating the constitutionality of a school's decision to expel a student. The LaVine court also unwisely extended the Tinker doctrine to a new area of student speech. In …
Forum-Selection Clauses In Consumer Clickwrap And Browsewrap Agreements And The "Reasonably Communicated" Test, Kaustuv M. Das
Forum-Selection Clauses In Consumer Clickwrap And Browsewrap Agreements And The "Reasonably Communicated" Test, Kaustuv M. Das
Washington Law Review
Although forum-selection clauses in clickwrap and browsewrap agreements have been addressed in only a limited number of decisions, they are likely to become increasingly relevant with the growth of e-commerce. Courts that have enforced forum-selection clauses in click-wrap and browsewrap agreements have often done so without determining whether the consumer received notice of the clause. When courts have addressed notice, they have not used any uniform standard for determining adequacy of notice. Forum-selection clauses in dlickwrap and browsewrap agreements further the policies underlying the Supreme Court's decisions in MIS Bremen v. Zapata Off-Shore Co. and Carnival Cruise Lines, Inc. v. …
Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz
Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz
Washington Law Review
The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was …
Just Who Is The Person Having Ordinary Skill In The Art? Patent Law's Mysterious Personage, Joseph P. Meara
Just Who Is The Person Having Ordinary Skill In The Art? Patent Law's Mysterious Personage, Joseph P. Meara
Washington Law Review
Various patent validity and infringement questions are decided against the standard of the "person having ordinary skill in the art" (Phosita). For example, under 35 U.S.C. § 103(a), an invention must be nonobvious to one of ordinary skill in the art to be granted a patent. In this context, the Federal Circuit has set out six factors for measuring the level of skill of Phosita, yet the court has provided remarkably little guidance in their use and their relationship to nonobviousness. This situation has led to confusion and difficulties among courts trying to assess Phosita's skill. This Comment argues that …
The Error Of Kim V. Lee And Equitable Subrogation: Why Birfucating Lien Priorities Is A Better Remedy, Brad A. Goergen
The Error Of Kim V. Lee And Equitable Subrogation: Why Birfucating Lien Priorities Is A Better Remedy, Brad A. Goergen
Washington Law Review
Normally, the priority of an interest in real property is determined according to the date when the interest was recorded in the Recorder's Office of the county in which the property is located. The first interest recorded has first priority. When an interest is satisfied, junior interests are elevated to the next priority level. If a landowner is forced to sell the property to satisfy a debt through foreclosure, the priority of interests determines the order for distributing sale proceeds. Equitable subrogation is a remedy whereby a court gives a subsequent interest holder priority over a prior recorded interest because …
The Washington Equal Access To Justice Act: A Substantial Proposal For Reform, D. Greg Blankinship
The Washington Equal Access To Justice Act: A Substantial Proposal For Reform, D. Greg Blankinship
Washington Law Review
Under the Washington Administrative Procedures Act, a party can challenge an agency action in superior court. The Washington Legislature adopted the Equal Access to Justice Act, which provides fees to qualified parties that prevail in judicial reviews of agency actions, to encourage individuals and small businesses to oppose unjust agency actions. The effectiveness of this fee-shifting provision is significantly limited because awards are not authorized when a court decides that the agency action is substantially justified. The legislature should remove this limitation. Where the agency action involves factual determinations or the interpretation of statutes or regulations within the expertise of …
Action Is An Action Is An Action Is An Action, Bradley Scott Shannon
Action Is An Action Is An Action Is An Action, Bradley Scott Shannon
Washington Law Review
The misuse of legal language is both rampant and problematic. This is particularly true with respect to the terminology employed by the Federal Rules of Civil Procedure. This Article begins with a general discussion of the importance of using proper legal terminology (with an emphasis on Rules terminology), followed by a discussion as to why, in spite of the problems caused by the misuse of legal terminology, such misuse persists. The Article then considers six Rules terms that should be familiar to every attorney—action, claim, averment, paper, dismissal, and judgment—and discusses the various ways in which these terms are being …
The Original Understanding Of The Census Clause: Statistical Estimates And The Constitutional Requirement Of An "Actual Enumeration", Thomas R. Lee
The Original Understanding Of The Census Clause: Statistical Estimates And The Constitutional Requirement Of An "Actual Enumeration", Thomas R. Lee
Washington Law Review
This Article addresses the question of whether statistical methods of estimating the population for purposes of congressional apportionment are consistent with the constitutional requirement of an "actual enumeration." Although the existing literature generally asserts that history provides no meaningful guidance on this question, this Article uncovers an extensive historical record--of both British and American origin—that supports the conclusion that the generation of the Framers understood that an "actual enumeration" would consist of an actual count and would not be based on statistical estimation. Specifically, the Article shows that assessments of population on both sides of the Atlantic routinely contrasted methods …
Does The Ghost Of Lochner Haunt Mission Springs? Ruminations On § 1983 Due Process Claims In Light Of Mission Springs, Inc. V. City Of Spokane, Mark K. Funke
Washington Law Review
The last time the Washington Supreme Court applied substantive due process in a land use case was in Mission Springs, Inc. v. City of Spokane in 1998. Since then, the Washington Law Review has published four commentaries that address substantive due process in Washington land use, all of which characterize Washington's substantive due process law as producing undesirable results. However, none of the available commentary takes into consideration that there are two types of substantive due process cases in Washington land use. In one type, courts strike down local ordinances, while in the other they enforce the lawful application of …
Festo'S Effect On After-Arising Technology And The Doctrine Of Equivalents, Anthony H. Azure
Festo'S Effect On After-Arising Technology And The Doctrine Of Equivalents, Anthony H. Azure
Washington Law Review
In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., the Federal Circuit adopted a strict approach to prosecution history estoppel and thereby limited the availability of the doctrine of equivalents to patentees suing for infringement by after-arising technology. The court held that when a narrowing claim amendment creates prosecution history estoppel, the amended claim element maintains no range of equivalents and therefore the patentee is completely barred from applying the doctrine of equivalents. The court rejected the flexible approach, which allows a scope of equivalents even after a narrowing claim amendment. This Note argues that the Supreme Court should …
The Asymmetry Of State Sovereign Immunity, Richard H. Seamon
The Asymmetry Of State Sovereign Immunity, Richard H. Seamon
Washington Law Review
This Article discusses whether a State has sovereign immunity from claims for just compensation. The Article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the Article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide a means of paying just …
The Religious Land Use And Institutionalized Persons Act: An Analysis Under The Commerce Clause, Evan M. Shapior
The Religious Land Use And Institutionalized Persons Act: An Analysis Under The Commerce Clause, Evan M. Shapior
Washington Law Review
Congress based the Religious Land Use and Institutionalized Persons Act (RLUIPA) on accumulated evidence suggesting that the land use decisions of local governments unfairly burden religious uses. The RLUIPA is narrower in scope than two previous statutes aimed at protecting religious liberty. The United States Supreme Court held the first of these religious liberty statutes unconstitutional, and Congress failed to enact the other. This Comment examines the constitutionality of the RLUIPA under the Commerce Clause and argues that Congress exceeded its Commerce Clause authority because (1) land use regulation does not constitute "economic activity" as defined by the United States …
Holding Tortfeasors Accountable: Apportionment Of Enhanced Injuries Under Washington's Comparative Fault Scheme, Ryan P. Harkins
Holding Tortfeasors Accountable: Apportionment Of Enhanced Injuries Under Washington's Comparative Fault Scheme, Ryan P. Harkins
Washington Law Review
The enhanced-injury doctrine imposes a negligence-based duty to reasonably minimize the foreseeable risk of injury enhancement in the event of primary accidents, regardless of their cause. When apportioning responsibility for enhanced injuries under principles of comparative fault, a majority of courts outside of Washington use a plaintiffs fault in causing the primary accident to reduce recovery for enhanced injuries. A minority of courts, however, rule that because the enhanced-injury doctrine presupposes the occurrence of primary accidents, primary fault is legally irrelevant to apportionment of enhanced injuries. Washington courts have not addressed this issue. This Comment argues that Washington courts should …
Fire Sale? The Admissibility Of Evidence Of Environmental Contamination To Determine Just Compensation In Washington Eminent Domain Proceedings, Paul W. Moomaw
Fire Sale? The Admissibility Of Evidence Of Environmental Contamination To Determine Just Compensation In Washington Eminent Domain Proceedings, Paul W. Moomaw
Washington Law Review
Jurisdictions across the United States are split on the issue of whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. Jurisdictions that admit this evidence reason that environmental contamination is a property characteristic that necessarily affects the value of the property. Those that exclude the evidence cite procedural due process concerns and the risk of extra liability for the landowner. Washington's Model Toxics Control Act (MTCA) establishes a system of assigning liability and recovering cleanup costs for environmental contamination. No Washington court has addressed whether evidence of environmental contamination should be admissible …
Punitive Damages, Explanatory Verdicts, And The Hard Look, Richard W. Murphy
Punitive Damages, Explanatory Verdicts, And The Hard Look, Richard W. Murphy
Washington Law Review
Juries in most American jurisdictions can inflict punitive damages awards against tortfeasors who have committed especially blameworthy torts. Sometimes their awards are startlingly large-multi-billion dollar awards have become increasingly frequent. Nonetheless, juries are generally under no obligation to explain their use of this vast power—a punitive damages verdict typically takes the form of an unexplained number. Courts can and should change this practice. Under Federal Rule of Civil Procedure 49(b) and analogous state rules, courts could require juries to return "explanatory verdicts" that set forth the bases for their punitive damages awards. Several advantages would flow from adopting this simple …
E-Proxies For Sale? Corporate Vote-Buying In The Internet Age, Douglas R. Cole
E-Proxies For Sale? Corporate Vote-Buying In The Internet Age, Douglas R. Cole
Washington Law Review
Advances in electronic communications technology promise to invigorate shareholder voting as a viable tool for corporate governance, for example by decreasing the cost, and thereby increasing the frequency and effectiveness, of proxy fights. Increased use of shareholder voting, though, forces renewed focus on issues related to the shareholder voting process. One such issue is vote-buying. Traditionally, courts have treated vote-buying in the corporate context as per se illegal. More recently, however, courts have relaxed their attitude toward such transactions, a move generally applauded by commentators. This article argues that the newfound judicial acceptance of vote-buying is problematic, at least for …
In The Litigation Business: Insurance Company Liability For Acts Occurring In The Course Of Litigation Under The Washington Consumer Protection Act, Kasey D. Huebner
In The Litigation Business: Insurance Company Liability For Acts Occurring In The Course Of Litigation Under The Washington Consumer Protection Act, Kasey D. Huebner
Washington Law Review
Insurance companies generally have much greater bargaining power and resources than individual insureds When a claim by an insured against an insurance company fails to settle amicably and is followed by a lawsuit, the insured has few options should the insurance company behave unfairly or deceptively in the course of the litigation. The Washington Consumer Protection Act protects consumers from deceptive and bad faith acts by businesses, including insurance companies Although Washington courts have created a general exception disallowing CPA suits for acts occurring in the course of litigation, Washington case law has not directly or clearly addressed whether this …
Closing A Discrimination Loophole: Using Title Vii's Anti-Retaliation Provision To Prevent Employers From Requiring Unlawful Arbitration Agreements As Conditions Of Continued Employment, Sidney Charlotte Reynolds
Closing A Discrimination Loophole: Using Title Vii's Anti-Retaliation Provision To Prevent Employers From Requiring Unlawful Arbitration Agreements As Conditions Of Continued Employment, Sidney Charlotte Reynolds
Washington Law Review
Courts have long viewed mandatory arbitration agreements (MAAs) as contract provisions that employees may accept or decline based on the common law doctrine of employment at-will. However, employees may see such MAAs as attempts to curtail Title VII rights and may refuse to sign them. Title VII prohibits employers from retaliating against employees who oppose discriminatory employment practices. A legal loophole has developed where some employers seek explicitly or implicitly to exempt themselves from Title VII's provisions by drafting MAAs that eliminate statutory rights and remedies from the arbitration process or deter employees from filing discrimination claims altogether. The U.S. …
Echazabal V. Chevron: A Direct Threat To Employers In The Ninth Circuit, Deborah Leigh Bender
Echazabal V. Chevron: A Direct Threat To Employers In The Ninth Circuit, Deborah Leigh Bender
Washington Law Review
Although Congress enacted the Americans with Disabilities Act (ADA) in part to protect disabled individuals from paternalism, the ADA permits employers to adopt a requirement that individuals not pose a direct threat to others in the workplace. The Equal Employment Opportunity Commission (EEOC) has determined that this direct threat defense also protects an employer who discharges or refuses to hire individuals who pose a direct threat to their own health or safety in the workplace. In Echazabal v. Chevron, the Ninth Circuit struck down the EEOC interpretation of direct threat on the ground that it was paternalistic and inconsistent …
The Declaration Of Independence: A 225th Anniversary Re-Interpretation, Carlton F.W. Larson
The Declaration Of Independence: A 225th Anniversary Re-Interpretation, Carlton F.W. Larson
Washington Law Review
The importance of the Declaration of Independence to American law has been obscured by dubious associations with natural rights jurisprudence. Legal scholars have therefore overlooked the numerous ways in which the Declaration is relevant to a host of legal issues. Ample textual and historical evidence demonstrates that the Declaration, not the Articles of Confederation or the Constitution, legally constituted the United States of America as a distinct nation in the world community. The Declaration was not the act of thirteen states declaring their individual independence, but the act of one American people announcing the birth of an American nation. Nor …
Can Students Sue When Schools Don't Make The Grade? The Washington Assessment Of Student Learning And Educational Malpractice, Rebecca R. Glasgow
Can Students Sue When Schools Don't Make The Grade? The Washington Assessment Of Student Learning And Educational Malpractice, Rebecca R. Glasgow
Washington Law Review
Washington's Academic Achievement and Accountability Statute (AAA Statute) creates a statewide system of school accountability. It also requires that all students pass the tenth-grade level of the Washington Assessment of Student Learning standardized test (WASL) to receive a diploma. Unfortunately, when this graduation requirement takes effect in 2008, many students will not receive diplomas because they will be unable to pass the WASL before graduation. Some of these students will have met all local graduation requirements, so the only graduation requirement they will not be able to meet will be the statewide requirement that they pass the WASL. Their WASL …
A Shield, Not A Sword: Involuntary Leave Under The Family And Medical Leave Act, Megan E. Blomquist
A Shield, Not A Sword: Involuntary Leave Under The Family And Medical Leave Act, Megan E. Blomquist
Washington Law Review
Under the Family and Medical Leave Act of 1993 (FMLA), covered employers must grant an eligible employee's request for up to twelve weeks of unpaid leave to care for a new baby or an ill family member, or to accommodate the employee's own serious health condition. The statute prohibits employers from interfering with, restraining, or denying an employee's right to FMLA leave. Neither the statute itself nor its regulations directly address the practice of involuntary leave, a term that has been used to describe instances where an employer designates the leave of a qualifying employee as FMLA leave without an …
Attorney-Client Confidentiality And The Assessment Of Claimants Who Allege Posttraumatic Stress Disorder, Robert H. Aronson, Lonnie Rosenwald, Gerald M. Rosen
Attorney-Client Confidentiality And The Assessment Of Claimants Who Allege Posttraumatic Stress Disorder, Robert H. Aronson, Lonnie Rosenwald, Gerald M. Rosen
Washington Law Review
Posttraumatic Stress Disorder (PTSD) was first recognized by the American Psychiatric Association in 1980. A PTSD diagnosis requires an individual or individual's loved ones to have experienced a traumatic event that was a threat to life or physical integrity and caused the individual to react to the incident with a specific number of avoidance, reexperiencing, and hyper-arousal symptoms. Obtaining a PTSD diagnosis can be of great value to a personal-injury plaintiff who claims damages due to a traumatic event. Further, if the traumatic event is unquestioned and the individual reports the classic symptoms, a PTSD diagnosis is relatively easy to …