Law Commons^™

The Price Of Justice: An Analysis Of The Costs That Are Appropriately Considered In A Cost-Based Vindication Of Statutory Rights Defense To An Arbitration Agreement, Ramona L. Lampley

Faculty Articles

In the wake of AT&T Mobility LLC v. Concepcion, parties opposing enforcement of an arbitration agreement with a class waiver increasingly relied on the prohibitive-costs-based vindication of statutory rights defense. The Supreme Court recently held in American Express Co. v. Italian Colors Restaurant that the effective vindication doctrine cannot be used to invalidate an otherwise enforceable arbitration agreement with class-action waiver simply because the opponents have no “economic incentive” to pursue individual arbitration. However, the Court's bases for this holding are unclear and unnecessarily call into question the very existence of the “effective vindication doctrine.” This Article examines the historical …

Not What, But When Is An Offer — Rehabilitating The Rolling Contract, Colin P. Marks

Faculty Articles

To what degree are rolling, or layered, contracts binding? A number of courts, starting with the now infamous case of ProCD, Inc. v. Zeidenberg, have held that, rather than a contract for the sale of a good, such as a computer, being completed in-store, the contract is formed when deferred terms found inside the package are reviewed by the buyer and accepted by some act -- usually use of the good (or declining to return it). This approach, which has been called the rolling contract, has been widely criticized by commentators as an abomination of contract law that ignores a …

Oil, Gas, And Mineral Titles: Resolving Perennial Problems In The Shale Era, Laura H. Burney

Faculty Articles

Mineral deeds present a list of perennial interpretative problems, which create uncertainty about ownership rights in mineral estates and the proceeds from the sale of oil and gas production. Consequently, the following issues arise: (1) deeds with conflicting fractions; (2) the “mineral or royalty” question; (3) the application of the common law “rule against perpetuities” to non-participating royalties, a common interest in the oil patch; (4) the meaning of “minerals”—does it include oil and gas?; (5) the executive’s duty to lease; and (6) deed interpretation versus “reformation.”

States with long histories of production and case law have grappled with several …

Border Wars & The New Texas Navy: International Treaties, Waterways, And State Sovereignty After Arizona V. United States, Bill Piatt, Rachel Ambler

Faculty Articles

The Texas Department of Public Safety Tactical Marine Unit’s law enforcement authority does not extend to stopping people crossing the border. Whether the Tactical Marine Unit, colloquially known as the New Texas Navy, possesses sufficient legal authority to enforce federal law is questionable. Arizona v. United States affirmed the principles of federalism and the preemption doctrine. However, the Court suggested that State officers were legally permitted to “cooperate” with the U.S. Attorney General in the identification, apprehension, and detention of illegal aliens. But, this does not allow a State to unilaterally choose to enforce federal law, which the New Texas …

The Lawyer Bubble: A Profession In Crisis, By Stephen J. Harper (Book Review), Michael S. Ariens

Faculty Articles

Stephen J. Harper’s The Lawyer Bubble: A Profession in Crisis, is the latest iteration of the “institutional failure” or “business disaster” story. A number of such books were published around 1990, and have been quite popular since then, for businesses (such as Enron and Tyco) keep failing in such spectacular fashion. The Great Recession that began in December 2007 led to another round of business disaster books, and like their forebears these books make a hard sell for the claim that the disaster was of a titanic nature. And where the business disaster book is found, the legal disaster book …

Inside The Castle: Law And Family In 20th Century America, By Joanna L. Grossman And Lawrence M. Friedman (Book Review), Michael S. Ariens

Faculty Articles

Inside the Castle: Law and Family in 20th Century America, by Joanna L. Grossman and Lawrence M. Friedman, is an entertaining and occasionally frustrating history. In the book’s introduction, the authors offer two big ideas. Their first idea promotes the instrumental explanation of law, and the second idea is the rise in the last part of the twentieth century of what the authors call “individualized marriage.”

Both these ideas have been long promoted by Lawrence M. Friedman, one of the nation’s foremost legal historians, and in many respects, the evidence adduced by the authors confirms both big ideas. Grossman and …

The Military Justice Conundrum: Justice Or Discipline?, David A. Schlueter

Faculty Articles

This article focuses on the long-standing debate over the purpose and functions of the American military justice system and whether the system is intended to provide for good order and discipline or to provide justice. The author provides a summary of the current procedures and practices in that legal system and discusses the roles of commanders and armed forces attorneys. He addresses the various thematic approaches which have been used to describe the relationship between justice and discipline and applies a crime-control and due process model to various features of the military justice system. He concludes that the system was …

Secured Transaction History: Protecting Holmes’ Notes Through The Conditional Sales Acts, George Lee Flint Jr

Faculty Articles

The historical explanation for the adoption of the conditional sales acts is woefully lacking. How and why the first conditional sales acts arose are investigated. Grant Gilmore, when presenting his theory, confessed ignorance concerning the origins of the conditional sale transaction, first known as Holmes’ notes. The failure of traditional legal historians to explain the passage of the conditional sales acts encourages inquiry into their legislative history to find an explanation. Pre-Act American decisions provide clues regarding the ratification of the acts. The courts provided three explanations for their passage: to treat the conditional sale as a chattel mortgage, to …

The Cisg After A Generation (Book Review), Vincent R. Johnson

Faculty Articles

Contracts for the International Sale of Goods, by Franco Ferrari, is a well-conceived and executed reference work. It is a valuable addition to scholarship focused on the 1980 United Nations Convention on the Law Applicable to Contracts for the International Sale of Goods (“CISG”).

In this work, Ferrari tracks the most important features of the CISG. Ferrari provides a brief history of the development and ratification of the CISG, careful consideration of the Convention’s sphere of applicability, its exclusions, and its broad deference to party autonomy. He then addresses two issues of recurring importance, namely those arising from disputes relating …

The Rule Of Law In China And The Prosecution Of Li Zhuang, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The rule of law is a philosophical concept, an ideal against which any legal system can be measured. Whether China adheres to the rule of law is critical not only to people in China but also to other nations that look to China for leadership. Serious questions can be raised about whether the recent Chongqing da hei fell short of compliance with the rule of law in the criminal law field. This article considers the Li Zhuang case from a comparative perspective rooted in legal principles that resonate cross-culturally. The article recounts the recent development of a new Chinese legal …

Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson

Faculty Articles

American legal ethics are based upon a set of legal principles that ensure clients are protected from unnecessary harm and that the provision of legal services is consistent with the public interest. However, the fabric of American legal ethics is threatened by a looming transformation of the legal profession. Such changes, if they come to pass, will undercut the foundations upon which the principles and law of modern legal ethics is founded.

The current model of American legal ethics is animated by three important assumptions, each of which is now under attack. The first is that legal services are ordinarily …

The Strange Case Of Lieutenant Waddell: How Overly Restrictive Rules Of Engagement Adversely Impact The American War Fighter And Undermine Military Victory, Jeffrey F. Addicott

Faculty Articles

A rules of engagement (“ROE”) Review Board should be created in order to provide an impartial review process for service members facing adverse administrative action for violations of ROE. Politicians defining the ROE, rather than military experts, create rules that are so restrictive and confusing that they ultimately run counter to the military objective of victory. A violation of a ROE can be a criminal offense under the Uniform Code of Military Justice, but violations are issued arbitrarily, and often the military does not charge the service member with a crime, instead using adverse administrative measures to impose punishment.

While …

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 …

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 …