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Articles 1 - 30 of 53
Full-Text Articles in Law
Compliance With The New Continuity Of Business Enterprise Regulation, John J. O'Donnell
Compliance With The New Continuity Of Business Enterprise Regulation, John J. O'Donnell
Washington Law Review
Many questions unanswered by the new regulation have already been dealt with in these older forms of continuity of enterprise requirements. This article will discuss the major unanswered questions of the new regulation, examine how the older forms of continuity of enterprise have dealt with such issues, and consider the propriety of applying the older-form decisions to the new reorganization-enterprise continuity regulation. The result will be some guidance, although unfortunately no guaranteed methods, on how to avoid being forced to litigate the validity of the regulation itself.
Parody And Fair Use: The Critical Question, Susan Linehan Faaland
Parody And Fair Use: The Critical Question, Susan Linehan Faaland
Washington Law Review
Criticism has long been grounds for fair use status. This comment argues that parody's value, and its qualification for fair use status, should be defined by its critical effect. It follows then, that the amount which the parody should be able to borrow should be measured in terms of this critical effect: the parodist should be able to borrow the amount necessary to achieve effectively her work's critical purpose, which is the only reason for allowing fair use in the first place. This comment begins with an examination of the fair use doctrine and its application to parody by courts …
Ethical Conduct In A Judicial Campaign: Is Campaigning An Ethical Activity?, J. Scott Gary
Ethical Conduct In A Judicial Campaign: Is Campaigning An Ethical Activity?, J. Scott Gary
Washington Law Review
The purpose of this comment is twofold. First, through a comprehensive survey of the codes that comprise the sources of legal ethics, the comment elucidates a body of ethical law governing the conduct of candidates in a judicial campaign. Second, after identifying the basic principle found to underlie these ethical codes, this comment argues that the scope of permissible judicial campaigning should be strictly confined.
Washington's Zoning Vested Rights Doctrine, Fredrick D. Huebner
Washington's Zoning Vested Rights Doctrine, Fredrick D. Huebner
Washington Law Review
Part I of this comment reviews the judicial analysis underlying the Washington doctrine, and outlines the elements and scope of the vesting rule. Part II analyzes the Mercer decision and questions whether that decision promotes the purposes of the Washington doctrine in the PUD zoning context. This comment contends that the Mercer court's rule for vesting rights to develop land on the basis of incomplete building permit applications fails to consider important public policy interests. In conclusion, Part III proposes a modified vesting rule that addresses the problems inherent in the Mercer decision.
Statutory Construction—Wildlife Protection Versus Indian Treaty Hunting Rights—United States V. Fryberg, 622 F.2d 1010 (9th Cir.), Cert. Denied, 449 U.S. 1004 (1980), Karl Forsgaard
Washington Law Review
While hunting for deer on his reservation, Dean Fryberg, an Indian, shot and killed a bald eagle. Although he had a treaty right to hunt on the Tulalip Reservation under the 1855 Treaty of Point Elliot, Fryberg was charged by information with taking a bald eagle in violation of the Eagle Protection Act of 1940. He did not possess a permit which would have allowed such a taking under the Act. This note concludes that the loose test used to find abrogation in Fryberg is unsatisfactory where a statute regulating a nonendangered resource is involved and instead proposes an alternative …
Regulating Cable Television, Nicholas P. Miller, Alan Beals
Regulating Cable Television, Nicholas P. Miller, Alan Beals
Washington Law Review
The evolution of cable television from a community antenna television (CATV) system carrying only broadcast signals to a high capacity communications system carrying a wide variety of television and nonvideo services raises significant policy and legal questions about the role of government regulation of cable. Congress has recently considered legislation that would limit the ability of local governments to regulate the local cable franchise. Such legislation and the trend of the Federal Communications Commission (FCC) to reduce federal regulation of electronic media underscore the need for a clear definition of the appropriate regulatory role for government. To determine the appropriate …
Community Property—Washington Allows Separate Tort Recovery From Community Property—Deelche V. Jacobsen, 95 Wn. 2d 237, 622 P.2d 835 (1980), Elizabeth Jane Blagg
Community Property—Washington Allows Separate Tort Recovery From Community Property—Deelche V. Jacobsen, 95 Wn. 2d 237, 622 P.2d 835 (1980), Elizabeth Jane Blagg
Washington Law Review
With the deElche decision, Washington joined the majority of community property states, but did not address several important questions, which will be the subject of this note. This note begins by reviewing prior case law and the structure of community property ownership in general. An analysis of the majority and dissenting opinions in deElche follows. The majority's reasoning and the impact of the decision will then be analyzed. The note concludes that the deElche holding is basically sound, but that the lack of clarity in the opinion leaves several community property questions unsettled.
Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz
Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz
Washington Law Review
The Gypsum decision supplies the proper occasion for a renewed effort to sort out and line up the Court's pronouncements since Trans-Missouri concerning the respective functions in cases arising under section 1 of proof of anticompetitive purpose and effect. Once this is done, a reasonably coherent body of doctrine emerges and the unresolved issues come more clearly into focus. The first two sections of this article deal with purpose and effect as determinants, respectively, of "restraint of trade" and of "contract, combination . . . and conspiracy." The third section takes up the problems that arise when the doctrine that …
Labor Unions—Vicarious Liability For Torts Committed By Members—Buchanan V. International Brotherhood Of Teamsters, 94 Wn. 2d 508, 617 P.2d 1004 (1980), Paul M. Feinsod
Labor Unions—Vicarious Liability For Torts Committed By Members—Buchanan V. International Brotherhood Of Teamsters, 94 Wn. 2d 508, 617 P.2d 1004 (1980), Paul M. Feinsod
Washington Law Review
This note first considers major developments in the law which preceded Buchanan. The reasoning of the Washington Supreme Court in this case then will be explicated, together with an analysis of the disparate views of the members of the court. This analysis will show that the majority position has unnecessarily excluded tort actions from the purview of RCW § 49.32.070. The note will conclude with a proposal for an alternative approach for the Washington courts to follow in future union-related tort cases.
Pleading Principles And Problems In Washington, Philip A. Trautman
Pleading Principles And Problems In Washington, Philip A. Trautman
Washington Law Review
It has now been a little over two decades since the present rules governing pleading became effective in Washington. It was on January 1, 1960 that the pertinent Washington Civil Rules, patterned after the Federal Rules of Civil Procedure, took effect. With some twenty years of experience to draw upon, it seems appropriate to review that experience with the hope of embellishing the stark provisions of the rules themselves, clarifying some of the problems that have arisen, and evaluating whether the objectives sought in the rules have been achieved.
Liability Of Accountants For Proxy Violations—The Appropriate Standard Of Culpability—Adams V. Standard Knitting Mills, Inc., 623 F.2d 422 (6th Cir.), Cert. Denied, 449 U.S. 1067 (1980), Bruce E. Dick
Washington Law Review
This note will first examine whether in fact accountants can be held primarily liable for proxy violations. Concluding that they can, the note will scrutinize the court's opinion to determine whether it requires scienter for all primary violators or only for accountants. The court's rationale suggests that the court intended to apply a uniform standard of culpability. This note will then compare the court's reasoning with the reasoning that led courts in two other circuits to choose, at least in some cases, negligence as the standard for primary violators. The comparison will show negligence to be the more appropriate minimum …
"Property Rights" In Constitutional Analysis Today, James L. Oakes
"Property Rights" In Constitutional Analysis Today, James L. Oakes
Washington Law Review
The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they …
Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson
Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson
Washington Law Review
In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within …
Constitutional Law—Balancing Test In Durational Residence Equal Protection Analysis—Williams V. Zobel, 619 P.2d 448 (Alaska 1980), Prob. Juris. Noted, 101 S. Ct. 1344 (1981), E. Thaddeus Lewis
Washington Law Review
This note analyzes the Zobel II opinion and concludes that it was correctly decided both under the two-tier analysis employed by the United States Supreme Court and the balancing approach adopted by the Alaska court. Since this case is before the United States Supreme Court on appeal, this note urges the Court to adopt the Alaska balancing test for durational residence equal protection cases as a replacement for the traditional two-tier analysis.
Liability Of Accountants For Proxy Violations—The Appropriate Standard Of Culpability—Adams V. Standard Knitting Mills, Inc., 623 F.2d 422 (6th Cir.), Cert. Denied, 449 U.S. 1067 (1980), Bruce E. Dick
Washington Law Review
This note will first examine whether in fact accountants can be held primarily liable for proxy violations. Concluding that they can, the note will scrutinize the court's opinion to determine whether it requires scienter for all primary violators or only for accountants. The court's rationale suggests that the court intended to apply a uniform standard of culpability. This note will then compare the court's reasoning with the reasoning that led courts in two other circuits to choose, at least in some cases, negligence as the standard for primary violators. The comparison will show negligence to be the more appropriate minimum …
"Property Rights" In Constitutional Analysis Today, James L. Oakes
"Property Rights" In Constitutional Analysis Today, James L. Oakes
Washington Law Review
The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they …
Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson
Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson
Washington Law Review
In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within …
Constitutional Law—Balancing Test In Durational Residence Equal Protection Analysis—Williams V. Zobel, 619 P.2d 448 (Alaska 1980), Prob. Juris. Noted, 101 S. Ct. 1344 (1981), E. Thaddeus Lewis
Washington Law Review
This note analyzes the Zobel II opinion and concludes that it was correctly decided both under the two-tier analysis employed by the United States Supreme Court and the balancing approach adopted by the Alaska court. Since this case is before the United States Supreme Court on appeal, this note urges the Court to adopt the Alaska balancing test for durational residence equal protection cases as a replacement for the traditional two-tier analysis.
Pleading Principles And Problems In Washington, Philip A. Trautman
Pleading Principles And Problems In Washington, Philip A. Trautman
Washington Law Review
It has now been a little over two decades since the present rules governing pleading became effective in Washington. It was on January 1, 1960 that the pertinent Washington Civil Rules, patterned after the Federal Rules of Civil Procedure, took effect. With some twenty years of experience to draw upon, it seems appropriate to review that experience with the hope of embellishing the stark provisions of the rules themselves, clarifying some of the problems that have arisen, and evaluating whether the objectives sought in the rules have been achieved.
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
Washington Law Review
Private landowners in Washington have been required to reforest land after logging since 1945. The Washington Forest Practices Act of 1974 and its predecessor have primarily affected the state's timber industry, which has long been familiar with the reforestation requirement. Many nonindustrial forest landowners, however, are unaware of the requirements of the 1974 Act. The 1974 Act requires that any owner of forest land who removes the trees for any reason, whether to log one hundred acres for income or to clear one acre for a homesite, must satisfy the reforestation requirements of the Act. Part I of this comment …
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
Washington Law Review
Private landowners in Washington have been required to reforest land after logging since 1945. The Washington Forest Practices Act of 1974 and its predecessor have primarily affected the state's timber industry, which has long been familiar with the reforestation requirement. Many nonindustrial forest landowners, however, are unaware of the requirements of the 1974 Act. The 1974 Act requires that any owner of forest land who removes the trees for any reason, whether to log one hundred acres for income or to clear one acre for a homesite, must satisfy the reforestation requirements of the Act. Part I of this comment …
The Deceptive 'Right To Know': How Pessimism Rewrote The First Amendment, Gerald J. Baldasty, Roger A. Simpson
The Deceptive 'Right To Know': How Pessimism Rewrote The First Amendment, Gerald J. Baldasty, Roger A. Simpson
Washington Law Review
In the decade of the 1940's, particularly in the years just after World War II, freedom of the press, which had been newly elevated and protected by the Supreme Court in the 1930's, began to suffer the corrosive effects of doubt about the strength of the American political system. Among the devastations of war was the failure of the intellectuals' confidence in the mettle of the American citizenry. By the mid-1960's, one consequence was clear: The first amendment no longer meant that the American press was expected to speak freely; it had begun to mean that much of what the …
Actions For Loss Of Consortium In Washington: The Children Are Still Crying, Gino L. Gabrio
Actions For Loss Of Consortium In Washington: The Children Are Still Crying, Gino L. Gabrio
Washington Law Review
This comment examines the reasons advanced by Washington courts to deny children a cause of action for loss of parental consortium when a parent is negligently injured. It discusses the inconsistent positions that courts and legislatures have taken in awarding or refusing to award recovery for loss of consortium by various classes of plaintiffs, and argues that children, like parents and spouses, should also have a separate consortium action. This comment then proposes guidelines for legislation creating a child's consortium action that limits any dangers of permitting children to recover. Finally, this comment concludes that, if the legislature fails to …
The Court Years 1939-1975: The Autobiography Of William O. Douglas (1980), Ralph S. Tyler
The Court Years 1939-1975: The Autobiography Of William O. Douglas (1980), Ralph S. Tyler
Washington Law Review
Few Americans would claim objectivity on the subject of William O. Douglas. He inspired powerful reactions. I start by stating my deeply held admiration for Justice Douglas, a respect nurtured at a distance and from his writings. His writings brought Douglas the man and Douglas the Justice close to many who never met him. His words show him to be a man who cared profoundly about the world, its people, his country, and the law. Decades of American law students, particularly those like me who studied law in the 1960's and 1970's, listened to Justice Douglas, whether he was in …
Patents—Contributory Infringement And Patent Misuse Under 35 U.S.C. § 271—Dawson Chemical Co. V. Rohn & Haas Co., 448 U.S. 176 (1980), Carlyn Joan Steiner
Patents—Contributory Infringement And Patent Misuse Under 35 U.S.C. § 271—Dawson Chemical Co. V. Rohn & Haas Co., 448 U.S. 176 (1980), Carlyn Joan Steiner
Washington Law Review
This casenote will discuss as background: (1) the judicial doctrines of contributory infringement and patent misuse as they developed before 1952; (2) section 271 of the Patent Act of 1952; and (3) the impact of this section on the contributory infringement/patent misuse doctrines in post-1952 Supreme Court cases. An analysis section will contrast the majority and minority interpretations of: (1) 35 U.S.C. §§ 271(c) and (d); (2) the legislative history of the Patent Act of 1952; and (3) post-1952 Supreme Court decisions as each impacts the result in Dawson. The final section will discuss patent policy considerations absent from the …
Energy Facility Siting: Recent Models Of Reform, Charles R. Ching
Energy Facility Siting: Recent Models Of Reform, Charles R. Ching
Washington Law Review
This comment first defines the energy-environment dilemma which frames the issues of energy facility siting. The comment then compares and evaluates the relative strengths and weaknesses of fast-track siting and one-stop siting. The comment concludes that, in an effort to expedite the siting process and to increase domestic energy production, the Reagan Administration should adopt a federal policy favoring one-stop siting.
Environmental Law—Threshold Determination Of The State Environmental Policy Act: Washington Adopts A More Flexible Approach—Equitable Remedies: Laches Defense Restricted—Hayden V. City Of Port Townsend, 93 Wn. 2d 870, 614 P.2d 1164 (1980), Deane W. Minor
Washington Law Review
The court's rulings on the laches defense and the negative threshold determination represent significant departures from the court's previous decisions. This note will examine the changes in the court's positions and discuss the effect of these changes on future environmental litigation.
The Marine Mammal Protection Act And The Fishery Conservation And Management Act: The Need For Balance, Terrin Child, Jeffrey T. Haley
The Marine Mammal Protection Act And The Fishery Conservation And Management Act: The Need For Balance, Terrin Child, Jeffrey T. Haley
Washington Law Review
This article presents an analysis of those provisions of the MMPA which may impede the achievement of FCMA objectives. It is important that these possible conflicts be resolved because while the United States controls off the coast of Alaska what may be the world's largest resources of fish, these same waters contain enormous numbers of marine mammals. These fishery resources, if managed rationally, can make a large contribution to the economy of the United States and to the protein needs of the world. A reasonable accommodation between the MMPA and the FCMA must be found in order to achieve that …
Public Land Withdrawal Policy And The Antiquities Act, Richard M. Johannsen
Public Land Withdrawal Policy And The Antiquities Act, Richard M. Johannsen
Washington Law Review
After setting forth a brief history of public land withdrawals, this comment analyzes the current statutory public land withdrawal scheme as expressed in the Federal Land Policy and Management Act of 1976 (FLPMA) and identifies the various policies underlying FLPMA. Next, an examination of the Antiquities Act's legislative history, judicial interpretation, and use will show that the intended scope of the Act is quite different from both its actual application by Presidents and its interpretation by courts. Evaluating the Act in light of the land withdrawal policies expressed in FLPMA, this comment will conclude that use of the Antiquities Act …
Legal Malpractice—Expansion Of The Standard Of Care: Duty To Refer—Horne V. Peckham, 97 Cal. App. 3d 404, 158 Cal. Rptr. 714 (1979), Karen J. Feyerherm
Legal Malpractice—Expansion Of The Standard Of Care: Duty To Refer—Horne V. Peckham, 97 Cal. App. 3d 404, 158 Cal. Rptr. 714 (1979), Karen J. Feyerherm
Washington Law Review
This note analyzes the Home court's reasoning in expanding the standard of care in legal malpractice actions to include a duty to refer and in holding attorneys to the same standard of care as physicians. This note also evaluates the considerations relevant to distinguishing "specialist" cases from "generalist" cases and the need for expert testimony in determining liability for failure to refer.