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Articles 1 - 30 of 40
Full-Text Articles in Law
State Taxation Of Indians—Federal Preemption Of Taxation Against The Backdrop Of Indian Sovereignty—Mcclanahan V. Arizona State Tax Commission, 411 U.S. 164 (1973); Mescalero Apache Tribe V. Jones, 411 U.S. 145 (1973); Tonasket V. Washington, 411 U.S. 451 (1973), Clydia J. Cuykendall
Washington Law Review
Over the years, the policy of the federal government toward American Indians has vacillated between attempts to assimilate them into American society on the one hand and efforts to preserve their independence and cultural identity on the other. Like a pendulum, this policy, as expressed in congressional legislation, has swung from efforts in 1887 to break up the reservations by transferring tribal lands to individual Indians in fee, to the halting in 1934 of further such alienation, and then back again since the 1950s to renewed efforts to end tribal existence. The legal theories and canons of construction generated by …
In Quest Of A "Decent Society": Obscenity And The Burger Court, Donald C. Harrison
In Quest Of A "Decent Society": Obscenity And The Burger Court, Donald C. Harrison
Washington Law Review
It is the thesis of this Comment that the Burger Court, in its search for constitutional certainty and structure, and for neutral principles of constitutional adjudication, has seized upon the Meiklejohn model and applied it to the area of obscenity. It has done so gropingly and in an effort to restrict, not to expand, openness of expression; nevertheless, as a repository of constructive constitutional theory, Miller and its companion cases may prove more beneficial to future first amendment adjudication than all the confusing obscenity decisions of the Warren years.
Products Liability—Strict Liability In Tort: Defect Need Not Render Product "Unreasonably Dangerous"—Cronin V. J.B.E. Olson Corp., 8 Cal. 3d 121, 501 P.2d 1153, 104 Cal. Rptr. 433 (1972), Charles L. Coleman
Washington Law Review
Plaintiff Cronin was injured when the bread delivery truck he was driving for his employer collided with another vehicle. An aluminum safety hasp designed to hold the truck's bread racks in place failed during the collision; as a result, plaintiff was pushed forward through the windshield of the truck and injured seriously. Plaintiff's expert witness testified that the hasp was unusually weak because of bubbles and organic matter in the metal, that the hasp would have withstood the forces exerted by the racks during the collision had it not been flawed, and that the flaws and weakness of the metal …
Regulation Of Real Estate Syndications: An Overview, Stephen B. Hazard
Regulation Of Real Estate Syndications: An Overview, Stephen B. Hazard
Washington Law Review
This comment will attempt to make some sense out of the controversy raging around real estate syndications and will attempt to determine what, if anything, should be done to regulate them. First, the mechanism of the real estate syndication and the specific problems it poses for the investor will be briefly examined. Second, the existing legal framework including restrictions imposed on real estate syndications by common law partnership and state and federal securities laws will be examined to determine whether the investor is adequately protected. Third, various proposed regulatory schemes will be examined, including the SEC's proposals for new disclosure …
International Law—Act Of State Doctrine—First National City Bank V. Banco Nacional De Cuba, 406 U.S. 759 (1972), Jack E. Sands
International Law—Act Of State Doctrine—First National City Bank V. Banco Nacional De Cuba, 406 U.S. 759 (1972), Jack E. Sands
Washington Law Review
International comity demands that one sovereign ordinarily recognize the legitimacy of the acts of another, questioning their validity under neither internal nor international law. A challenge to the legality of the acts of another nation-state may entail serious international repercussions; such challenges thus have been considered grave matters of national diplomatic policy within the exclusive competency of the political branches of government. Judicial recognition of this fact is reflected in the act of state doctrine—the refusal of the courts of one nation-state to investigate the legality of official governmental acts performed in another. This doctrine, accepted in varying degrees by …
Impeachment, Arthur Bestor
Impeachment, Arthur Bestor
Washington Law Review
A book review essay considering Impeachment: The Constitutional Problems, by Raoul Berger (1973).
Equal Protection, Affirmative Action And Racial Preferences In Law Admissions: De Funis V. Odegaard, Arval A. Morris
Equal Protection, Affirmative Action And Racial Preferences In Law Admissions: De Funis V. Odegaard, Arval A. Morris
Washington Law Review
The purpose of this article is to explore the constitutional dimensions of the equal protection problem presented by a law school's voluntary adoption of racial classifications in a preferential admissions policy, and to do so, in part, by focusing on the recent case of De Funis v. Odegaard.
Initiative And Referendum In Washington: A Survey, Philip A. Trautman
Initiative And Referendum In Washington: A Survey, Philip A. Trautman
Washington Law Review
It is the purpose of this article to analyze some of the more perplexing problems, both at the state and local level, and to provide a better understanding of the initiative and referendum as they presently exist in Washington.
The Need For Judicial Reform, Tom C. Clark
The Need For Judicial Reform, Tom C. Clark
Washington Law Review
Mr. Justice Holmes once said that "one may criticize even what one reveres." With this caveat I shall proceed to offer some critical comments concerning the Washington judicial structure, its proliferation, its inefficiencies of operation and its methods of selecting and disciplining judges. I am well aware of Mr. Justice Brewer's observation that "many criticisms may be, like their authors, devoid of good taste." However, I shall endeavor to escape this categorization, remembering instead that "better all sorts of criticism than no criticism at all." Indeed, it is "open season" on the courts these days. As Mr. Justice Story reminds …
Mental Illness: A Legal Fiction, James H. Hardisty
Mental Illness: A Legal Fiction, James H. Hardisty
Washington Law Review
Professor Hardisty examines the use of the term "mental illness" by the law, focusing upon competency and insanity defense tests. After determining that the term has no accepted medical definition, the author analyzes the necessity for legal usage of the term. Professor Hardisty concludes that the term "mental illness" should be deleted from the law.
Due Process And Deeds Of Trust—Strange Bedfellows?, David A. Leen, Peter A. Galbraith, John Gant
Due Process And Deeds Of Trust—Strange Bedfellows?, David A. Leen, Peter A. Galbraith, John Gant
Washington Law Review
The authors examine in detail the validity of the private sale provisions of the Washington Deed of Trust Act in light of the recent procedural due process decisions of the United States Supreme Court. In addition to concluding that the present Washington Act appears to be unconstitutional, the authors briefly discuss the policy considerations involved and suggest general guidelines for change.
Selection And Retention—A Judge's Perspective, Robert F. Utter
Selection And Retention—A Judge's Perspective, Robert F. Utter
Washington Law Review
If all persons are to be treated equally in our courts, the process of selecting judges to oversee courts must be one that insures selection of efficient, intelligent and compassionate judges. It must also be one that insures selection and retention of judges who are truly able to administer, and give the impression that they are administering, their duties impartially to all. Toward this end, the Citizens' Committee on Washington Courts examined the current process for selecting judges and recommended a constitutional amendment which, if approved, would substantially improve the process by which judges are now selected in Washington state.
On Criteria For Redistricting, Robert L. Morrill
On Criteria For Redistricting, Robert L. Morrill
Washington Law Review
The one month effort to reapportion the legislative and congressional districts of the State of Washington did not provide an extensive opportunity to probe either the logical human bases for or methods of reapportionment. However, on the basis of the redistricting experience and subsequent analysis and reflection, an appraisal of the generally accepted criteria for reapportionment is appropriate
Discretion In Felony Sentencing—A Study Of Influencing Factors, Barbara L. Johnston, Nicholas P. Miller, Ronald Schoenberg, Laurence Ross Weatherly
Discretion In Felony Sentencing—A Study Of Influencing Factors, Barbara L. Johnston, Nicholas P. Miller, Ronald Schoenberg, Laurence Ross Weatherly
Washington Law Review
The desirability and constitutionality of discretionary criminal sentencing can be ascertained only if the factors influencing sentencing decisions are known. The authors analyze data generated by a 1971 survey of Washington State superior court trial judges in order to identify the significant factors and to evaluate their relative importance in criminal sentencing. The results indicate that discretionary sentencing is influenced strongly by social biases in no way dependent upon the culpability of the offender, his personal behavior patterns, or circumstances of the crime.
Constitutional Law—Equal Protection: Validity Of R.C.W. § 9.87.010(13), Washington's School Loitering Statute—State V. Oyen, 78 Wn. 2d 909, 480 P.2d 766 (1971), Vacated Mem. Sub Nom. Oyen V. Washington, 408 U.S. 933 (1972), R. W. E.
Washington Law Review
Defendants were arrested under authority of R.C.W. § 9.87.010(13), Washington's school loitering statute, for having distributed anti-Vietnam war leaflets to students on school premises in knowing violation of a school board regulation which required prior approval by the superintendent of nonschool-related handouts. The peaceful distribution occurred prior to morning classes as students were leaving their busses. Defendants subsequently were convicted, although they contended that the statute was unconstitutionally vague and overbroad and as applied violated their right to free speech. On appeal to the Washington Supreme Court, the conviction was affirmed. Held: R.C.W. § 9.87.010(13) is constitutional: the statute is …
Unification, Funding, Discipline And Administration: Cornerstones For A New Judicial Article, Luvern V. Rieke
Unification, Funding, Discipline And Administration: Cornerstones For A New Judicial Article, Luvern V. Rieke
Washington Law Review
Need for adjustments in the structure and operation of the judiciary is occasioned by the same factors that require modification of other institutions and is more accurately described as a continuing process than as a response to a specific crisis. In recent years, however, demands upon existing judicial resources have burgeoned, and it has been said that the "old ways of doing things are clearly inadequate to meet the burdens imposed on our courts by the 'law explosion' of the mid-20th century." The legitimacy of these demands already has been recognized in Washington. Partial reform of the courts of limited …
Securities Regulation—Private Offering Exemption: Sec Proposed Rule 146, S. M. L.
Securities Regulation—Private Offering Exemption: Sec Proposed Rule 146, S. M. L.
Washington Law Review
This note will examine the present ambit of the private offering exemption, consider proposed amendments to it and propose changes to clarify its application.
Torts—Nuisance Actions Against Municipal Airports—Nestle V. City Of Santa Monica, 6 Cal. 3d 920, 496 P.2d 480, 101 Cal. Rptr. 568 (1972), G. E. F.
Washington Law Review
Plaintiffs, homeowners living near Santa Monica Municipal Airport, brought suit against the municipality of Santa Monica, the airport operator, seeking damages for diminution of property value and personal injury resulting from jet aircraft noise. The homeowners' principal theory for recovery was that the jet noise emanating from the airport constituted a nuisance. Both the trial and the appellate courts dismissed the nuisance action. The California Supreme Court reversed. Held: a nuisance action against a municipal airport is not precluded by governmental tort immunity. Nestle v. City of Santa Monica, 6 Cal. 3d 920, 496 P.2d 480, 101 Cal. Rptr. 568 …
Symposium: Comprehensive Judicial Reform—A Timely Alternative To Piecemeal Modification. Introduction, Anon
Washington Law Review
The Washington Legislature currently has before it SJ. Res. 113, a proposal to comprehensively reform the judicial system in Washington by amending Article IV of the Washington constitution. The proposed changes include a new system for selecting, disciplining and removing judges; a new procedure for financing and administering the courts; and unification of Washington's judicial system. Carefully analyzing this proposal for judicial reform in Washington, United States Supreme Court Justice Tom C. Clark (retired), Washington Supreme Court Justice Robert F. Utter, and Professor Luvern V. Rieke probe and discuss the substantive issues raised by the legislation. Their analysis should be …
Equality For Spouses In Washington Community Property Law—1972 Statutory Changes, Harry M. Cross
Equality For Spouses In Washington Community Property Law—1972 Statutory Changes, Harry M. Cross
Washington Law Review
In 1972, the Washington Legislature amended Washington's community property laws, granting the wife management powers equal to those of her spouse. Professor Cross examines the impact of the amendments upon existing Washington law, emphasizing expected practical difficulties in community business transactions and transactions involving household goods.
Outcomes Of Six- And Twelve-Member Jury Trials: An Analysis Of 128 Civil Cases In The State Of Washington, Gordon Bermant, Rob Coppock
Outcomes Of Six- And Twelve-Member Jury Trials: An Analysis Of 128 Civil Cases In The State Of Washington, Gordon Bermant, Rob Coppock
Washington Law Review
Support is growing for increased use of six-member juries in civil cases. Presently, a jury with less than twelve members is available by stipulation in Washington superior courts, and the possibility that a six-member panel will become compulsory in the future is enhanced by positive reports from those experimenting with a mandatory six-member jury.
Constitutional Law—Creditor-Debtor Law: Procedural Due Process And Washington's Prejudgment Seizure Procedures—Fuentes V. Shevin, 407 U.S. 67 (1972), P. A. G.
Washington Law Review
A recent United States Supreme Court decision, Fuentes v. Shevin, and two recent Washington Court of Appeals decisions, Lucas v. Stapp and Seattle Credit Bureau v. Hibbitt, held that except in extraordinary situations the due process clause of the fourteenth amendment to the United States Constitution requires notice and an opportunity to be heard before any significant property interest can be seized by actions involving government officials. Under these cases, Washington's attachment, garnishment, and replevin statutes appear to be unconstitutional insofar as they provide for prejudgment seizure of a defendant's property without prior notice and an opportunity to be heard. …
Physicians And Surgeons—Malpractice—Informed Consent Of Patient: Duty To Inform Patient To Be Established By Expert Medical Testimony—Zebarth V. Swedish Hospital Medical Center, 81 Wn. 2d 12, 499 P.2d 1 (1972), L. D. K.
Washington Law Review
Plaintiff was suffering from a highly malignant form of cancer resulting in serious obstruction of the trachea. He was admitted to the defendant hospital where it was determined that radiation therapy was necessary to reduce the obstruction before it completely blocked the plaintiff's breathing. After completion of the radiation therapy, plaintiff began to suffer from a progressive paralysis which plaintiff claimed was caused by damage to his spinal cord, attributable to the manner in which the radiation was administered. Plaintiff sued in the Superior Court for King County, alleging that since he was neither warned of the risk of damage …
Meretricious Relationships—Property Rights: A Meretricious Relationship May Create An Implied Partnership—In Re Estate Of Thornton, 81 Wn. 2d 72, 499 P.2d 864 (1972), W. P. F.
Washington Law Review
In the early 1950's, decedent separated from his wife and began living with appellant. During the subsequent seventeen years decedent, appellant and their four children operated a cattle ranch in Washington. In 1961 profits from that business were used to purchase property known as the Malo farm in the name of decedent. During the following years, appellant participated both in the decisions concerning the farm's management and in its day-to-day operations. Upon the death of the decedent in 1969, his surviving spouse filed a petition for probate of his will. Thereafter appellant filed a petition alleging a partnership interest in …
Torts—Emotional Harm: Limitations On Third Party Recovery For Emotional Harm Caused By Fear Or Concern For Another—Schurk V. Christensen, 80 Wn. 2d 652, 497 P.2d 937 (1972), J. R. R.
Washington Law Review
Plaintiff hired fifteen-year-old Reed Christensen to care for her five-year-old daughter upon the representation of his parents that he was a good and capable baby-sitter. The parents knew but did not disclose that their son had a lengthy history of sexually assaulting young girls. In the span of five months the baby-sitter molested the plaintiff's daughter between two and five times. Upon learning of the assaults, plaintiff suffered severe emotional distress requiring treatment by a physician, hospitalization, and psychiatric care. The plaintiffs claim against the defendant parents and their son alleged mental anguish proximately caused her by the knowledge of …
Bank Branching In Washington: A Need For Reappraisal, Richard B. Cohen
Bank Branching In Washington: A Need For Reappraisal, Richard B. Cohen
Washington Law Review
Washington bank branching policy, which essentially limits geographic bank expansion to mergers with existing banks, is being frustrated by aggressive enforcement of federal antitrust statutes. Given the federal restrictions on bank concentration and the need for a responsive and competitive commercial banking structure at the local level, the author concludes that Washington should revamp current statutory policy and allow limited de novo bank branching.
Criminal Procedure—Immunity: Fifth Amendment Privilege Against Self-Incrimination Eclipsed By Use Immunity—Kastigar V. United States, 406 U.S. 441 (1972), W. J. M.
Washington Law Review
Kastigar refused to answer questions during federal grand jury proceedings despite an order commanding him to answer and granting him use and derivative use immunity, protecting him from the use of his testimony or any evidence derived from it. Kastigar's refusal to testify was premised on the theory that the grant of immunity extended to him was constitutionally deficient and that only transactional immunity could supplant his fifth amendment privilege. The trial court found Kastigar in civil contempt and ordered him confined pursuant to section 301(a) of the Organized Crime Control Act of 1970. The United States Court of Appeals …
The Economics Of The Joint Antitrust Dissents Of Justices Harlan And Stewart, Ray O. Werner
The Economics Of The Joint Antitrust Dissents Of Justices Harlan And Stewart, Ray O. Werner
Washington Law Review
Professor Werner presents a chronological study of the antitrust dissents authored by Justices Harlan and Stewart in an attempt to identify the minority rationale which may guide the Court's future antitrust decisions. Analyzing these dissenting opinions against the economic criteria of industry structure, conduct and performance, Professor Werner concludes that the dissenters focus primarily on industry performance while showing some concern for the structure of the industry. The author views the dissenters as strict constructionists and believes that their conservative economic orientation may emerge as the antitrust philosophy of the Nixon appointees to the United States Supreme Court.
Union Group Legal Services: An Experiment In Group Legal Practice, William A. Roberts
Union Group Legal Services: An Experiment In Group Legal Practice, William A. Roberts
Washington Law Review
This article does not discuss the history of, the need for, or the philosophy underlying group legal programs; other literature adequately has explored these topics. Rather, this article is designed to acquaint those interested in group legal programs with the essential considerations in establishing such a program and with the operating procedure and results of the group legal program initiated by Union Group Legal Services.
Constitutional Law—Freedom To Communicate Versus Right To Privacy: Regulation Of Offensive Speech Limited By "Captive Audience" Doctrine—State V. Rabe, 79 Wn. 2d 254, 484 P.2d 917 (1971), Rev'd Per Curiam, 405 U.S. 313 (1972), D. C. H.
Washington Law Review
Defendant Rabe, manager of a Richland, Washington, drive-in theater, was convicted under the state obscenity statute for exhibiting the film "Carmen Baby," a somewhat updated version of the Bizet opera, on a screen visible from an adjacent highway and from neighboring houses. On appeal, the Washington Supreme Court expressed doubt that the film was obscene on its face under prior holdings of the United States Supreme Court but declared that a right of privacy was "enshrined" in the United States Constitution. Asserting that exhibition of the film in an open-air theater from which it could be viewed by noncustomers constituted …