Law Commons^™

Comments Of The Center For Indian Law & Policy On Washington’S Fish Consumption Rate Technical Support Document, Catherine O’Neill

Faculty Articles

Comments Submitted to the Washington State Department of Ecology.

Same Violence, Same Sex, Different Standard: An Examination Of Same-Sex Domestic Violence And The Use Of Expert Testimony On Battered Woman's Syndrome In Same-Sex Domestic Violence Cases, Leonard Pertnoy

Faculty Articles

1971 marked the genesis of the Battered Women's Movement and, since then, remarkable strides have been made to address and combat domestic violence. Today, for example, a myriad of domestic abuse agencies offer an array of services, including: 24-hour hotlines; counseling; safe houses; transitional living; children's services; life skills education; professional training; batterers' intervention; and legal assistance. These strides, however, cannot extirpate two ugly truths: domestic violence still pervades our society, and it afflicts more than those in heterosexual relationships. Anecdotal evidence and a growing body of literature indicate that domestic abuse is not unique to heterosexuals, but occurs in …

The Least Of These: In Praise Of Professor Tom Holdych’S Integrity And Dedication To Justice For The Disadvantaged, Henry Mcgee

Faculty Articles

An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.

Tribute To Professor Tom Holdych, John Weaver

Faculty Articles

An obituary for Thomas J. Holdych, contracts and commercial law professor at the Seattle University is presented.

Orphan Works As Grist For The Data Mill, Matthew Sag

Faculty Articles

The phenomenon of library digitization in general, and the digitization of so-called “orphan works” in particular, raises many important copyright law questions. However, as this Article explains, correctly understood, there is no orphan works problem for certain kinds of library digitization.

The distinction between expressive and non-expressive works is already well recognized in copyright law as the gatekeeper to copyright protection—novels are protected by copyright, while telephone books and other uncreative compilations of data are not. The same distinction should generally be made in relation to potential acts of infringement. Preserving the functional force of the idea-expression distinction in the …

Prosecution In 3-D, Kay L. Levine, Ronald F. Wright

Faculty Articles

Despite the multidimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutors’ case-handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience.

In this Article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps …

Un-Apologizing For Context And Experience In Legal Education, John Mckay

Faculty Articles

This Essay accompanies the Fifth Annual Symposium at Creighton University School of Law addressing the rapidly changing legal profession and our not-so-rapidly changing legal education and law school pedagogy. The Symposium's focus on the changing practice of law provides an opportunity to reconsider the woefully incomplete effort by law schools to respond to the challenge of the Carnegie Report and its many preceding critics. Rather than merely pile on, however, this Essay suggests that Jesuit law schools in particular might have something to offer their colleagues-an experiential teaching style grounded in centuries old pedagogy inspired by the founder of the …

The Guardians Of Knowledge In The Modern State: Post’S Republic And The First Amendment, David M. Skover, Ronald K. L. Collins

Faculty Articles

Collins and Skover’s essay examines Yale Law School Dean Robert Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale, 2012). Collins and Skover describe and examine Dean Post’s dichotomy between the realm of “democratic legitimation,” where the First Amendment should offer its strongest protections, and the realm of “democratic competence,” where the First Amendment should yield to the findings of knowledgeable experts. Questioning the theoretical premises of Dean Post’s book, they argue that a “harm principle” may better explain much of the First Amendment doctrine that Post attempts to reconcile with his …

The Homeowners’ Illusory Safety Net: Mortgage Broker Surety Liability, Bryan Adamson

Faculty Articles

This Article exposes a critical consumer protection flaw in Washington State’s Mortgage Brokers Practices Act. While allowing aggrieved borrowers to bring claims against mortgage brokers at least up to three years from the date of injury, it requires a borrower to bring an action against the mortgage broker’s surety within one year of the injury. This Article posits that the one-year statute of limitations for actions against the mortgage surety is procedurally counterintuitive. Importantly, it also compels filing of possibly frivolous claims, and subverts all other statute of limitations provisions otherwise available to a wronged consumer. The Article explains why …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark A. Chinen

Faculty Articles

The article presents information on the Syrophoenician woman with respect to the international law and the international response to global crisis like climatic change. The views of scholars like Bhalakrishna Rajagopal, Amartya Sen and David Boucher are presented on the issue of modern challenges that pose a threat to international justice and international law. Information on the Syrophoenician woman is presented with reference to a passage in the Gospel of Mark.

The Vanishing Plaintiff, Brooke D. Coleman

Faculty Articles

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it …

A Theoretical Case For Standardized Vesting Documents, Chad J. Pomeroy

Faculty Articles

Practitioners, real estate professionals, and lay people throughout the country rely on the recording system to provide critical information regarding ownership rights and claims. Indeed, the recording system acts as a virtually mandatory repository and disseminator of all potential parties’ claims. This system, in turn, relies on these claimants and their agents to publicize their claims: property purchasers, lenders, lien-claimants, title companies, attorneys - these parties interact, make deals, make claims, order their affairs, and then record. The information system available to us, then, is only as good as what we make of it and what we put into it. …

Leaving The Fda Behind: Pharmaceutical Outsourcing And Drug Safety, Chenglin Liu

Faculty Articles

During the 2008 heparin crisis, a tainted blood-thinning drug imported from China caused the deaths of at least eighty people in the United States. However, despite the Food and Drug Administration’s (“FDA”) reactive measures, the American regulatory framework for drug safety remains largely unchanged. Currently, about 80% of active pharmaceutical ingredients, 40% of finished drugs, and 50% of all medical devices used in the United States are imported from over 100 countries. With the growth of product outsourcing, pharmaceutical companies in the United States have stopped manufacturing many essential medicines. Nevertheless, the FDA’s foreign inspections have lagged. It would take …

Perils And Pontifications: Reflections On The Failures And Joys Of A Law Teacher, John W. Teeter Jr

Faculty Articles

Next to fatherhood and my faith, teaching is what matters most to me, and yet it has been filled with failures as well as undeniable fulfillment and joy. I hope to enrich the lives of teachers who will replace me behind the podium, and that this article will serve as both an inspiration and a warning to new professors and those contemplating life in academics.

I offer the following guidance. Look outside yourself so you can look within yourself and then share what you find with the world. Actively seek the friendship and guidance of others, especially those from different …

Higher Education, Corruption, And Reform, Vincent R. Johnson

Faculty Articles

Educational corruption is a problem in every country, particular at the college and university level. With illustrations drawn from the United States, this article considers what “basic principles” should shape efforts to deter, expose, and penalize corruption in academic institutions. The article then identifies “best practices” that should be followed by colleges and universities aspiring to high standards. The discussion explores the role that ethics codes and ethics education can play in fighting corruption. More specifically, the article addresses what types of substantive rules and systematic procedures are essential parts of effective higher education ethics codes. Mindful of the fact …

On The Abuse And Limits Of Lawyer Discipline, Vincent R. Johnson

Faculty Articles

Despite being routinely underfunded, lawyer disciplinary processes must operate in ways that merit the confidence of both society at large and the American legal profession. This means that those who participate in lawyer grievance adjudication must be vigilant against systemic abuse (whether deliberate or unintentional) and mindful of factors that limit institutional competence. This Essay argues that, in many instances, disciplinary authorities should abstain from deciding grievances that would require them to rule on unresolved scientific questions, particularly if controversial matters are involved. The Essay further urges that grievance rulings must be consistent with American constitutional principles which favor robust …

Cyber Security And The Government/ Private Sector Connection, Jeffrey F. Addicott

Faculty Articles

The United States does not possess a sufficient cyber security framework. Over eighty-five percent of the critical infrastructure in the United States is controlled by private industry. The greatest concern is an intentional cyber attack against electronic control systems that regulate thousands of interconnected computers, routers, and switches. The centralized computer networks controlling the U.S. infrastructure presents tempting targets.

Generally, there are four types of cyber attacks. First, the most common, is service disruption—which aims to flood the target computer with data packets or connection requests, thereby making it unavailable to the user. The second type is designed to capture …

Fire Losses And Conflicting Judicial Rulings Over Whether Property Insurers Must Indemnify Insureds And Pay Third-Party Claims - Some Implications For Wildfire Litigation In Texas's Courts, Willy E. Rice

Faculty Articles

Wildfires in Texas have generated two interrelated questions: (1) whether insurers have a duty to indemnify residential and commercial property owners if a wild forest, brush, grass, or prairie fire destroys homeowners' property in Texas, and (2) whether insurers have a duty to pay or settle third-party claims in Texas if a property owner starts a fire on her property, which evolves into a wildfire and destroys a third party's residential or commercial property.

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia W. Moore

Faculty Articles

The effect of Ashcroft v. Iqbal on pleading standards and behavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data …

When Coercion Lacks Care: Competency To Make Medical Treatment Decisions And Parens Patriae Civil Commitments, Dora W. Klein

Faculty Articles

The subject of this Article is people who have been civilly committed under a state’s parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This …

The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein

Faculty Articles

In the past decade, at least eight cases involving issues at the intersection of criminal law and clinical psychology have reached the United States Supreme Court. Of particular interest are those cases which concern three general topics: the culpability of juvenile offenders; mental states and the criminal process, including the presentation of mental disorder evidence, competency to stand trial, and competency to be executed; and the preventive detention of convicted sex offenders.

Of these eight cases, two cases cases adopted categorical exclusions from certain kinds of punishment, three involved questions about mental states (and in two of these the Court …

Allegedly “Biased,” “Intimidating,” And “Incompetent” State Court Judges And The Questionable Removal Of State Law Class Actions To Purportedly “Impartial” And “Competent” Federal Courts—A Historical Perspective And An Empirical Analysis Of Class Action Dispositions In Federal And State Courts, 1925-2011, Willy E. Rice

Faculty Articles

Judges as well as members of plaintiffs’ and defense bars agree: a class action is a superior, efficient, and inexpensive procedural tool to litigate disputes that present similar questions of fact and law. To be sure, corporations and insurers have a long history of filing successful class actions against each other in state courts. Yet those corporate entities convinced Congress to embrace an uncommon view: continuing to allow allegedly “hostile” and “biased” state judges and juries to hear and decide everyday consumers’ “purely substantive state law class actions” is unfair and inefficient. Responding to the plea, Congress enacted the Class …

The Court Of Appeals For The Fifth Circuit: A Selective Review And Analysis Of The Panels' 2010-2011 Insurance-Law Opinions, Willy E. Rice

Faculty Articles

No abstract provided.

Restitution In Texas: Civil Liability For Unjust Enrichment, David A. Dittfurth

Faculty Articles

The Texas Supreme Court must clarify the law of restitution. The law of restitution regulates a major area of litigation in Texas and suffers from a significant degree of confusion. The Texas Supreme Court has adopted the modern view of restitution, but its rulings lack the detailed guidance needed by lower courts. The Texas Supreme Court should establish an independent and generally applicable cause of action for unjust enrichment, describe clearly the elements of that cause of action, and lend its authority to the modern terms that describe the law of restitution.

The Texas Supreme Court’s rulings on restitution describe …

Location, Location, Location: Using Cost Of Living To Achieve Tax Equity, James Puckett

Faculty Articles

All other things being equal, the federal income tax ignores whether the taxpayer lives in a relatively affordable or expensive location. This approach can lead to unfairness; moreover, special deductions for the taxpayer's actual living expenses, such as home mortgage interest and state and local taxes, do not solve the problem. Tax law scholars have generally been quick to dismiss the equity issues based on assumptions about taxpayer mobility. The existing literature would tax comparable workers equally, regardless of salary and living costs. This approach would unfairly equate differently situated workers. This article questions the assumption of taxpayer mobility, considers …

Saving The Puget Sound Wild Salmon Fishery, George Van Cleve

Faculty Articles

This article focuses on the prevention of future habitat losses. Part I explores flaws in how existing law deals with habitat protection and outlines alternative policies to improve it. Part II charts the decline of the Puget Sound salmon fishery and discusses the scientific support for the conclusion that habitat protection and restoration is a central element in restoring it. Part III considers how effective administrative action and related endangered species litigation are likely to be as means of protecting habitat. Since Native American tribes face very severe harm from the fishery's potential destruction, Part III also explores their distinctive …

A Pragmatic Republic, If You Can Keep It, Bill Sherman

Faculty Articles

The administrative state has been bedeviled by doubts about its democratic legitimacy and its questionable Constitutional provenance. Courts and scholars attack or shore up this weakness, but almost all proceed on the assumption that the administrative state is a modern leviathan unimaginable to the Founders. Consequently, questions about the role of politics in agency decisions assign a disfavored role to “pure politics” in rulemaking. This Book Review Essay challenges that assumption and its implications for the role of politics in administrative decisionmaking. Centering on a review of Jerry L. Mashaw’s new book, Creating the Administrative Constitution: The Lost One Hundred …

What Every Guarantor Should Know About The One-Action Rule And Deficiency Actions, David R. Hague

Faculty Articles

Personal guarantees are an inherent part of obtaining a business loan. A personal guarantee is an unsecured promise from an individual to make loan payments when the business is not able to do so. In other words, it is simply an added assurance for the lender that the loan will be paid in full. Generally, if the borrower defaults, the lender can file suit against both the borrower and the guarantor for payment. Oftentimes, lenders require another layer of protection, in addition to the personal guarantee: collateral to secure the loan.

Signing a personal guarantee comes with substantial risks, primarily …

It's Time For An Alternative Dispute Resolution Procedure, James Rosenfield

Faculty Articles

No abstract provided.

Supercolleague, Margaret Chon

Faculty Articles

This memorial tribute to the late Keith Aoki traces the impact of his overlapping activities as an artist, warrior, and mentor, particularly in the area of Asian-American jurisprudence.