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 …

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 …

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 …

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 …

Resolving Disputed Elections Through Negotiation, Rishi Batra

Faculty Articles

Could a disputed election—one in which the winner is not clear and the result is within the "margin of litigation"—be resolved through a negotiated result? Given the "winner take all" nature of these elections, where one candidate ends up holding the office, and all others do not, it would seem that negotiated solutions and other alternative dispute resolution techniques would have no application. This article explores why self-interested candidates and their associated parties may be interested in a negotiated outcome, what the scope of such an agreement could look like, and how to overcome barriers to such a negotiated result.

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.

The Romantic Collective Author, Margaret Chon

Faculty Articles

Although the romantic collective author is a much more elusive creature than its romantic individual counterpart, it can be discerned amidst the proliferation of expression on the Internet. This article first outlines the ways in which the romantic author effect operates through both its genius and its arbiter prongs within collaborative authorship practices in digital networks. It next turns to scientific collaboration, where this author effect is attenuated, to assess whether scientific authorship practices might contribute to a more realistic and less romantic understanding of expressive authorship practices. A subsequent case study of collaborative digital authorship by Wikipedia contributors uncovers …

Centennial Reflections On The California Law Review'S Scholarship On Race: The Structure Of Civil Rights Thought, Richard Delgado

Faculty Articles

The author reviews one hundred years of the California Law Review's rich body of scholarship on race and civil rights in an effort to discern its general direction and contours. Discerning two broad paradigms--a black-white binary of race and a liberty-equality divide--he notes that the two not only have been emerging in roughly the same period but are beginning to occupy the same territory. After describing the two paradigms and explaining their origin and operation, he puts forward a prediction for what their convergence may portend for the future of civil rights thought.

Naim V. Naim, Richard Delgado

Faculty Articles

Part of a law review symposium on the worst Supreme Court cases, this essay nominates Naim v. Naim, in which the Court declined to review a Virginia antimiscegenation law, postponing action in this area for over a dozen years. This article argues that the Court's reluctance to enter this arena was unfortunate, short-sighted, and cruel; and that we might be a different nation if the Supreme Court had been less concerned about appearances and more about doing the right thing in 1955.

Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching, Richard E. Flint

Faculty Articles

An essay is presented on consumer bankruptcy policy in the U.S. It informs about the significant changes in the consumer bankruptcy introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 including incorporation of an ability-to-pay test as a requirement for getting the benefits of the act. It reviews the Catholic social teaching related to the interrelationship between the dignity of man and his rights and duties to promote justice and the common good.

Mexican Children Of U.S. Citizens: “Viges Prin” And Other Tales Of Challenges To Asserting Acquired U.S. Citizenship, Lee J. Teran

Faculty Articles

Mexican children with a U.S. parent face both historic and current challenges in acquiring U.S. citizenship. Following changes in U.S. immigration law, the number of individuals removed from the United States has swelled dramatically. This campaign against non-citizens has led to the removal of United States citizens, particularly individuals who were born abroad but claim citizenship through a U.S. citizen parent. Citizens are caught in the middle of conflicting goals between government efforts to adjudicate claims to acquired U.S. citizenship and the focus on crime and national security interests.

Even though many U.S. parents and their children born abroad are …

Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong

Faculty Articles

The United States has long embraced the concept of regulatory litigation, whereby individual litigants, often termed “private attorneys general,” are allowed to enforce certain public laws as a matter of institutional design. Although several types of regulatory litigation exist, the U.S. class action is often considered the paradigmatic model for this type of private regulation.

For years, the United States appeared to be the sole proponent of both regulatory litigation and large-scale litigation. However, in February 2012, the European Union dramatically reversed its existing policies toward mass claims resolution when the European Parliament adopted a resolution proposing to create a …

Clinical Faculty In The Legal Academy: Hiring, Promotion, And Retention , Bryan L. Adamson, Calvin Pang, Bradford Colbert, Kathy Hessler, Katherine Kruse, Robert Kuehn, Mary Helen Mcneal, David Santacroce

Faculty Articles

No abstract provided.

Don’T Blame Crawford Or Bryant: The Confrontation Clause Mess Is All Davis’S Fault, Deborah Ahrens, John Mitchell

Faculty Articles

In Michigan v. Bryant, a dying victim lying in a parking lot provided responding officers with the identity of the man who shot him. In determining whether the subsequent use of the deceased declarant’s statement at trial violated the Confrontation Clause, the Bryant Court applied the testimonial versus nontestimonial analysis established in the Court’s previous decision, Crawford v. Washington. Holding that testimonial hearsay covered statements involving past events, while nontestimonial statements were directed at an “ongoing emergency,” the Bryant Court applied a multi-factor, totality of the circumstances analysis and found that the deceased declarant’s identification had been directed …

Gringo Alley, Steven W. Bender

Faculty Articles

As a tribute to the late Professor Keith Aoki, this piece engages an uncompleted collaboration with Professor Aoki sketching through art and words a profoundly dystopian immigration nightmare centered in the Southwestern United States. In detailing the plot and themes of the borderlands gauntlet of "Gringo Alley," the article confronts some of the disturbing recent developments in immigration policy that approach or match the horrors imagined in fictional Gringo Alley. Finally, the article draws on science fiction influence and demographic reality to suggest a frightening future for all U.S. residents -- the prospect of economic collapse in a landscape of …

Unbound By Law: Keith Aoki As Our Avatar, Steven W. Bender, Ibrahim J. Gassama

Faculty Articles

Introducing the memorial symposium in the Oregon Law Review for the late Professor Keith Aoki, who taught at Oregon from 1993 to 2006, we frame the contributions of invited scholars who address Keith’s impact on the law and legal academy through his prolific work on diverse areas of law — intellectual property, local government, critical geography, Asian American jurisprudence, immigration and critical Latina/o jurisprudence. Collectively, the pieces evidence a scholar armed with an unwavering commitment to critical analysis and social justice, while wielding a vast array of cultural and intellectual influences from his career as an artist. Given Keith’s legacy …

Many-To-Many Contracts, Heidi S. Bond

Faculty Articles

In classical contract law the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered we will see that the point of …

Powerful Buyers And Merger Enforcement, John B. Kirkwood

Faculty Articles

Although large buyers like Walmart and Tyson Foods occupy important positions in the American economy, antitrust law remains focused on the conduct of sellers. Moreover, when mergers of buyers have been challenged, the cases have been based on a single theory – that the merger would create a dominant buyer (or group of buyers) that would exploit small, powerless suppliers. Most powerful buyers, however, face suppliers with power of their own, and in such cases, the buyers exert “countervailing power,” which can also be anticompetitive. Yet buyer mergers that reduce competition through the exercise of countervailing power are not addressed …

Crimes Of Misery And Theories Of Punishment, John B. Mitchell

Faculty Articles

Increasingly, one sees the homeless on the streets, alleys, and doorways of commercial, recreational, and living spaces of our cities otherwise populated by the affluent and relatively affluent. At the same time, there has been an increase in the creation and use of so-called “public order laws,” such as forbidding sitting on sidewalks, lying down on benches, and panhandling in certain tourist areas. Together with laws already on the books forbidding public intoxication, open containers of liquor in public and urinating in public, this suite of laws provide police with a means to control the day-to-day lives of the homeless …