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Articles 901 - 930 of 3365
Full-Text Articles in Law
In The Wake Of Lough V. Brunswick Corp.: Who Decides Experimental Purpose In 35 U.S.C. § 102(B) Public Use Cases?, Chad P. Webster
In The Wake Of Lough V. Brunswick Corp.: Who Decides Experimental Purpose In 35 U.S.C. § 102(B) Public Use Cases?, Chad P. Webster
Washington Law Review
Pursuant to 35 U.S.C. § 102(b), a defendant can avoid liability for patent infringement if the patented invention was in public use in the United States more than one year prior to the date of patent application. Although "public use" is broadly construed to include most nonsecret uses, a nonsecret use pursued primarily for bona fide experimental purposes is merely an "experimental use." Experimental use negates the conclusion that an invention was in public use within the meaning of section 102(b). In Lough v. Brunswick Corp., the U.S. Court of Appeals for the Federal Circuit held that the issues …
The Press: Its Sins And Grace, Anthony Lewis
The Press: Its Sins And Grace, Anthony Lewis
Washington Law Review
Under the First Amendment, as it has come to be understood, the American press has more freedom than the press of any other country. I want to explore the question of what our press does with that great freedom. Does it show a matching responsibility? How well does it perform the role that the framers of the Constitution thought justified the protection they were giving us, the role of holding government accountable to the people? James Madison put it that in the United States "the people, not the government, possess the absolute sovereignty." That was "altogether different" from Britain, he …
"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski
"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski
Washington Law Review
The split-enforcement model of agency administration creates a dilemma for the adjudicating agency regarding how much deference it should allot interpretive documents promulgated by the agency with rulemaking authority. In 1992, Congress sought to resolve this problem in the area of aviation safety by statutorily mandating that the adjudicating agency, the National Transportation Safety Board (NTSB), defer to "validly adopted" interpretations generated by the rulemaking agency, the Federal Aviation Administration (FAA). Ironically, the statute created even more uncertainty because the term "validly adopted" is vague and remains undefined. Subsequent decisions have not clarified exactly when the NTSB considers itself bound. …
The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist
The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist
Washington Law Review
By utilizing both a backward and forward looking perspective, this Article develops a model conducive to better understand the Internet's legal implications on economic regulation. The model is also intended to help legislators and regulators adapt their legal and regulatory frameworks to the Internet. This Article canvasses and builds upon the burgeoning development of Internet law. It suggests that the Internet's impact on economic regulation is best understood by classifying its effects into four categories, each of which requires a different regulatory response. It also considers potential solutions for adapting economic regulation to the Internet. This Article concludes that no …
Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris
Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris
Washington Law Review
The Americans with Disabilities Act (ADA) protects individuals with disabilities from discrimination. Since its passage in 1991, the number of individuals seeking protection under the Act has steadily increased and the types of impairments claimed to qualify as disabilities have dramatically expanded. Many disability claims test the boundaries of the Act and reveal a muddied conception of what constitutes a disability for purposes of the ADA. This Article investigates the meaning of the term disability to define more clearly who should benefit under the Act. By focusing on controlled impairments, a group of disability claims that has produced a split …
A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines
A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines
Washington Law Review
Maintaining the success and fairness of mediation requires mediators to be impartial toward all parties and to protect the confidentiality of mediation sessions. Attorney-mediators encounter conflicts of interest, based on prior or subsequent representation of clients, that can disrupt impartiality or confidentiality. When attorneys practice mediation, it is unclear where they should look for guidance: attorney rules of professional conduct, mediator ethical standards, or both. Additionally, attorney-mediators encounter unique issues that ethical guidelines designed for attorneys or mediators do not address adequately. This Comment proposes a comprehensive conflict of interest rule for inclusion in the Rules of Professional Conduct that …
No More Messing Around: Substantive Due Process Challenges To State Laws Prohibiting Fornication, Traci Shallbetter Stratton
No More Messing Around: Substantive Due Process Challenges To State Laws Prohibiting Fornication, Traci Shallbetter Stratton
Washington Law Review
Anglo-American law has historically prohibited fornication, and through the 1960s fornication remained illegal in all but ten states. Few questioned the validity of laws proscribing various forms of private, adult, consensual sexual behavior until the early 1970s. Aside from legislative repeal, substantive due process has been the primary weapon in the fight against state sex laws. Although the U.S. Supreme Court's substantive due process jurisprudence, particularly in the area of personal privacy, has brought the constitutionality of fornication statutes into question, it has not definitively resolved the matter. This Comment argues that laws prohibiting fornication do not violate substantive due …
The Drudge Case: A Look At Issues In Cyberspace Defamation, Robert M. O'Neil
The Drudge Case: A Look At Issues In Cyberspace Defamation, Robert M. O'Neil
Washington Law Review
In the days following Newsweek's January 1998 decision to defer publication of an exposé of President Clinton's alleged affair with White House intern Monica Lewinsky, attention focused on the medium where the story first appeared: Matt Drudge's online gossip column, The Drudge Report. Though his postings on this issue seem to have been substantially accurate, Mr. Drudge has recently been sued for defamation because an earlier Report carried a story of a quite different sort, in which even he conceded there were some flaws. That lawsuit provides a vehicle through which to explore a fascinating array of legal …
Seeley V. State: The Need For Definitional Balancing In Washington Substantive Due Process Law, Kristiana L. Farris
Seeley V. State: The Need For Definitional Balancing In Washington Substantive Due Process Law, Kristiana L. Farris
Washington Law Review
Seeley v. State, concerning the medical use of marijuana, underscored yet again the fundamental tensions and flaws in federal substantive due process analysis. The U.S. Supreme Court has increasingly restricted the definition of fundamental rights, leaving many important interests exposed to the highly deferential rational relationship standard for state regulation. Under the bifurcated federal substantive due process test, the initial classification of an individual interest as fundamental or non-fundamental is highly outcome determinative, leading to contorted definitions of individual rights before the test for the validity of a regulation is even applied. Washington has generally followed federal constitutional law …
Law Student Advocates And Conflicts Of Interest, Adrienne Thomas Mccoy
Law Student Advocates And Conflicts Of Interest, Adrienne Thomas Mccoy
Washington Law Review
Law students who represent clients under attorney supervision are subject to no clear conflict of interest rules. Whether they are considered lawyers or nonlawyers for purposes of each state's ethics rules is uncertain. Available rules governing lawyer and nonlawyer conflicts of interest ignore the competing interests of legal education, law student employment, clients, and public service. This Comment proposes a student conflict of interest rule that balances these interests by (1) holding student advocates to high ethical standards and (2) allowing screening to cure most conflicts that occur within student representation and that would otherwise handicap students in future employment
Sex Discrimination And Insurance For Contraception, Sylvia A. Law
Sex Discrimination And Insurance For Contraception, Sylvia A. Law
Washington Law Review
Unintended pregnancy is a serious problem in the United States. Most private insurance plans do not pay for contraception even though they pay for other prescription drugs and devices. This Article argues that this pattern constitutes sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. It discusses the reasons this issue has been neglected and suggests ways federal and state officials might remedy this common form of gender discrimination.
Asymptomatic Hiv As A Disability Under The Americans With Disabilities Act, Elizabeth C. Chambers
Asymptomatic Hiv As A Disability Under The Americans With Disabilities Act, Elizabeth C. Chambers
Washington Law Review
The Americans with Disabilities Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected …
Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.
Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.
Washington Law Review
Swygert and Yanes, in an article in this issue of the Washington Law Review, suggest a means to achieve this integration. In this Article, I first discuss the shortcomings of the approach suggested by Swygert and Yanes. Next, I suggest a more practical approach for integrating efficiency and equity that relies on benefit cost analysis. Finally, I consider some of the cases to which Swygert and Yanes apply their analysis. The fundamental shortcoming of the Swygert and Yanes approach is that it offers little for deciding practical cases. The authors combine two abstract and heuristic proposals and quite naturally …
Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen
Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen
Washington Law Review
Professors Swygert and Yanes seek to bring efficiency and equity to bear explicitly on the economic analysis of law by merging Rawlsean social contract philosophy into law and economics' basic premise, the Coase Theorem. We are in complete agreement with Swygert and Yanes that good legal policy should be concerned with both efficiency and equity, and we welcome their attempt to merge the two as a useful step in an important debate. Ultimately, though, we are unconvinced by their argument as it currently stands for two reasons. First, by focusing only on the way in which their approach might affect …
Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes
Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes
Washington Law Review
An idea generally shared by both economists and philosophers is that a legal rule may either achieve distributive fairness or bring about an efficient outcome, but not both. In this Article, the authors argue that justice requires that legal rules consider both fairness and efficiency. The Article discusses the Coase Theorem, as a tool for determining the most efficient allocation of rights and duties, and the ideas of John Rawls for deriving a fair social contract. The authors then combine aspects of these two hypothetical consensus models into a unified theory of justice that considers the question of what agreements …
Riss V. Angel: Washington Remodels The Framework For Interpreting Restrictive Covenants, Casey J. Little
Riss V. Angel: Washington Remodels The Framework For Interpreting Restrictive Covenants, Casey J. Little
Washington Law Review
In Riss v. Angel, the Supreme Court of Washington declared that in disputes between subdivision homeowners, courts must construe restrictive covenants to give effect to the covenants' intended purposes by considering surrounding circumstances to protect the homeowners' collective interests. The court further held that when restrictive covenants grant discretion to architectural review committees (ARCs) to approve new construction or remodels, ARCs or other homeowners association committees that enforce such covenants must exercise their authority reasonably and in good faith. Riss represents a departure from prior precedent that required courts to construe strictly the terms of restrictive covenants to limit …
The Property Scope Of Habeas Corpus Review In Civil Removal Proceedings, Andrea Lovell
The Property Scope Of Habeas Corpus Review In Civil Removal Proceedings, Andrea Lovell
Washington Law Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), two 1996 amendments to the Immigration and Nationality Act, eliminated direct judicial review in the federal courts of appeals of final removal orders for aliens convicted of certain enumerated crimes. The legislation also appears to limit the habeas corpus jurisdiction of the federal district courts. While most circuit courts agree that some degree of habeas corpus review of removal orders is constitutionally mandated, several have interpreted AEDPA and IIRIRA as limiting the scope of that review. This Comment argues that the scope …
Capitalizing The Target's Transaction Costs In Hostile Takeovers, David J. Roberts
Capitalizing The Target's Transaction Costs In Hostile Takeovers, David J. Roberts
Washington Law Review
In A.E. Staley Manufacturing Co. v. Commissioner, the Court of Appeals for the Seventh Circuit held that costs a corporation incurred to resist a hostile takeover were analogous to costs incurred to defend a business against attack and thus qualified as ordinary and necessary business expenses deductible under Internal Revenue Code section 162. Alternatively, the court held that those costs associated with abandoned capital transactions qualified for loss deductions under section 165. This Note argues that although the court reached approximately the right result in this case, its primary reliance on a defense of business rationale for deductibility under …
Determining The Scope Of A Copyright Owner's Right To Bar Imports: L'Anza Research International, Inc. V. Quality King Distributors, Maureen M. Cyr
Determining The Scope Of A Copyright Owner's Right To Bar Imports: L'Anza Research International, Inc. V. Quality King Distributors, Maureen M. Cyr
Washington Law Review
In L'Anza Research International, Inc. v. Quality King Distributors, the Ninth Circuit held that a copyright owner's right to bar imports is not limited by the first sale doctrine, which ordinarily prohibits a copyright owner from controlling the further distribution of copies after the copyright owner has consented to their sale. This Note examines the importation right in light of the purposes of the Copyright Act's distribution and first sale provisions, congressional intent behind the importation right, and the underlying purposes of copyright law. The Note argues that the first sale doctrine properly limits a copyright owner's right to …
The "Same Actor Inference" In Employment Discrimination: Cheap Justice?, Julie S. Northup
The "Same Actor Inference" In Employment Discrimination: Cheap Justice?, Julie S. Northup
Washington Law Review
In Proud v. Stone, a 1991 age-related employment discrimination case, the Fourth Circuit established the evidentiary principle that a "strong inference" of nondiscrimination arises when the same person hires and then fires the plaintiff within a short period of time. This "same actor inference" has been adopted in varying degrees by six other circuits. Only the Third Circuit has expressly declined to recognize the hirer-firer relationship as more than evidence from which the trier of fact may draw a reasonable inference. Courts invoking the "inference" have extended its applicability far beyond the original context so as to permit theoretically …
Should Labor Be Allowed To Make Shareholder Proposals?, Randall S. Thomas, Kenneth J. Martin
Should Labor Be Allowed To Make Shareholder Proposals?, Randall S. Thomas, Kenneth J. Martin
Washington Law Review
In this Article, we investigate whether labor unions and related entities should be permitted to continue to make shareholder proposals using Rule 14a-8 of the federal securities laws. We focus on the claim that labor is using the shareholder proposal mechanism to further the interests of workers at the expense of other shareholders. In particular, corporate management groups have suggested that when labor is involved in collective bargaining negotiations with management, it should be barred from submitting shareholder proposals because labor proposals seek to further interests not shared by other security holders of the company. Using data on shareholder proposals …
Quixotic Attempt? The Ninth Circuit, The Bia, And The Search For A Human Rights Framework To Asylum Law, Shelley M. Hall
Quixotic Attempt? The Ninth Circuit, The Bia, And The Search For A Human Rights Framework To Asylum Law, Shelley M. Hall
Washington Law Review
The Ninth Circuit and the Board of Immigration Appeals (BIA) historically have disagreed about the application of human rights norms in many areas of asylum law. Although recent decisions by the BIA indicate more receptiveness toward the Ninth Circuit's broader approach, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 seeks to stifle judicial review in many areas of immigration law, including asylum. This Comment analyzes the potential impact of the law on the development of asylum jurisprudence and recommends areas for future dialogue between the Ninth Circuit and the BIA.
Marital Status Discrimination In Washington: Relevance Of The Identity And Actions Of An Employee's Spouse, Katrina R. Kelly
Marital Status Discrimination In Washington: Relevance Of The Identity And Actions Of An Employee's Spouse, Katrina R. Kelly
Washington Law Review
Before 1993, Washington's employment anti-discrimination statute did not define the term "marital status," and courts interpreted the term broadly to include discrimination based upon the actions or identity of an employee's spouse. A 1993 amendment to the Law Against Discrimination added a definition of marital status. Although the Supreme Court of Washington has not yet considered the impact of this amendment, the dissent in Magula v. Benton Franklin TitlCeo . argued that the change in the statute should narrow the interpretation of marital status to exclude the identity and actions of an employee's spouse. This Comment argues that the scope …
Preventing Insider Misappropriation Of Not-For-Profit Health Care Provider Assets: A Federal Tax Law Prescription, John F. Coverdale
Preventing Insider Misappropriation Of Not-For-Profit Health Care Provider Assets: A Federal Tax Law Prescription, John F. Coverdale
Washington Law Review
Not-for-profit health care providers are converting to for-profit status on an unprecedented scale. Directors and officers have too frequently taken advantage of the conversions to misappropriate the organizations' assets. Common law remedies have proven inadequate, and many states have no specific statutory remedies. The state statutory remedies that have been enacted range from fairly comprehensive to quite inadequate. Not-for-profit health providers are generally also subject to the federal tax rules governing tax-exempt organizations. Until recently, however, the only sanction available to the Internal Revenue Service (IRS) was to revoke the organization's tax-exempt status. The IRS rarely invoked this remedy both …
The Roles Of Comparative Law: Inaugural Lecture For The Dan Fenno Henderson Professorship In East Asian Legal Studies, Daniel H. Foote
The Roles Of Comparative Law: Inaugural Lecture For The Dan Fenno Henderson Professorship In East Asian Legal Studies, Daniel H. Foote
Washington Law Review
Being named to the Dan Fenno Henderson Professorship in East Asian Legal Studies is at one and the same time a proud and truly humbling moment. It is especially humbling to hold a professorship bearing the illustrious name of Dan Fenno Henderson. In the Japanese law field, Henderson is without peer. He created the field as we know it today, and his accomplishments are truly staggering.
Right Of Publicity Tarnishment And The First Amendment, Edgar Sargent
Right Of Publicity Tarnishment And The First Amendment, Edgar Sargent
Washington Law Review
This Comment proposes a new cause of action for tarnishment of the right of publicity. The claim would protect the rights holder from uses that create offensive or degrading associations and thus harm the value of the protected persona. To prevent undue constraint upon First Amendment protected speech about public figures, publicity rights protection must be carefully balanced against free speech interests. In most cases, a speaker's right to refer to a public figure will be superior to the publicity rights holder's interest in controlling the manner in which a persona is used. However, publicity rights holders should prevail when …
Overextended Borrowing: Tribal Peacemaking Applied In Non-Indian Disputes, Carole E. Goldberg
Overextended Borrowing: Tribal Peacemaking Applied In Non-Indian Disputes, Carole E. Goldberg
Washington Law Review
Respected figures within the U.S. legal system are saying that the system could be improved by borrowing elements from Native American dispute resolution. To longtime students of Indian Law, this is a striking shift of rhetoric. Historically, non-Indian America has either ignored or dismissed tribal law, often characterizing tribes as lawless. But has the rhetoric merely shifted from condescension to impractical romanticizing? This article examines and analyzes the position taken by non-Indian advocates of borrowing from tribal justice systems and considers whether such borrowing can really work.
Wolf Warriors And Turtle Kings: Native American Law Before The Blue Coats, Rennard Strickland
Wolf Warriors And Turtle Kings: Native American Law Before The Blue Coats, Rennard Strickland
Washington Law Review
One of the great myths of the white invention of the Indian was that there was no law among Native Americans before the white man except for a single Indian "primitive" legal system of blood revenge, uniform across the North American continent. This is not so. Law existed among Native Peoples long before white contact. Quite simply, the Indians had law. Before white contact, Native America nourished a rich and diverse system of law-a system of law that varied dramatically from people to people.
Sierra Club V. Commissioner And The Royalty Exemption To The Unrelated Business Income Tax: How Much Activity Is Too Much?, Katherine A. Vanye
Sierra Club V. Commissioner And The Royalty Exemption To The Unrelated Business Income Tax: How Much Activity Is Too Much?, Katherine A. Vanye
Washington Law Review
In Sierra Club v. Commissioner, the Ninth Circuit decided that royalties are payments for the right to use intangible property and are by definition "passive." The court applied this definition and held that Sierra Club's income from renting its mailing list was a royalty payment and thus exempt from taxation. This Note argues that while the court reached the correct conclusion, it did not propose a clear standard to guide future cases. Two alternative approaches could be adopted: (1) ancillary versus significant services; or (2) comparative value of property and services. These alternatives will provide clearer guidelines and enable …
Landowners Or Lifeguards? Degel V. Majestic Mobile Manor, Inc. And Liability For Visitors' Injuries From Natural Bodies Of Water, Joseph Z. Lell
Landowners Or Lifeguards? Degel V. Majestic Mobile Manor, Inc. And Liability For Visitors' Injuries From Natural Bodies Of Water, Joseph Z. Lell
Washington Law Review
Under an exception to the attractive nuisance doctrine, landowners typically owe no duty to warn and protect trespassing children from the dangers inherent in ponds, streams, and other natural bodies of water located on the owners' property. In Degel v. Majestic Mobile Manor, Inc., however, the Washington Supreme Court declined to extend this premises liability exception to situations where the injured visitor is an invitee of the landowner. This Note examines the natural bodies of water exception and argues that Degel's refusal to apply it in the invitee context ultimately conflicts with the court's earlier policy statement favoring …