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1998

University of Washington School of Law

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Articles 1 - 30 of 80

Full-Text Articles in Law

A Proposed Antitrust Approach To The Conduct Of Retailers, Dealers, And Other Resellers, Thomas A. Piraino Jr. Oct 1998

A Proposed Antitrust Approach To The Conduct Of Retailers, Dealers, And Other Resellers, Thomas A. Piraino Jr.

Washington Law Review

The market power of retailers, resellers, and dealers has increased substantially in recent years as the result of innovations in distribution such as the superstores, mass merchandisers, and warehouse clubs. Consequently, the balance of power in many industries has begun to shift from the supplier to the resale level. Although courts have well-developed means of analyzing the competitive conduct of suppliers and consumers, they have been unable to decide how to treat resellers' competitive conduct. This Article proposes the adoption of a traditional antitrust approach, the "ancillary restraints analysis," to the conduct of resellers. Under this approach, courts would recognize …

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Proposed Ninth Circuit Split: Response. Malthus And The Court Of Appeals: Another Former Clerk Looks At The Proposed Ninth Circuit Split, Aaron H. Caplan Oct 1998

Proposed Ninth Circuit Split: Response. Malthus And The Court Of Appeals: Another Former Clerk Looks At The Proposed Ninth Circuit Split, Aaron H. Caplan

Washington Law Review

This Article argues that current proposals to split the Ninth Circuit are unnecessary and would be detrimental to judges, law clerks, lawyers, and litigants. Larger circuits offer various benefits, many of them arising from the diversity of cases and judicial personalities on the bench. Splitting the Ninth Circuit would not bring the benefits proponents predict.

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Proposed Ninth Circuit Split. The Icebox Cometh: A Former Clerk's View Of The Proposed Ninth Circuit Split, Jennifer E. Spreng Oct 1998

Proposed Ninth Circuit Split. The Icebox Cometh: A Former Clerk's View Of The Proposed Ninth Circuit Split, Jennifer E. Spreng

Washington Law Review

Most academic commentators oppose splitting the Ninth Circuit Court of Appeals. They argue that the court's size is a virtue and either deny that the court has size-related problems, such as workload, consistency, and reversal rate, or claim that a split would not address these problems. The U.S. Congress, however, is less sure. It has appointed the Commission on Structural Alternatives for the United States Courts and asked it to study a possible Ninth Circuit split. This Article provides an "insider's view," that of a former elbow clerk, and reveals that a split would significantly decrease the court's workload and …

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The Russian Title Registration System For Realty And Its Effect On Foreign Investors, Lev S. Batalov Oct 1998

The Russian Title Registration System For Realty And Its Effect On Foreign Investors, Lev S. Batalov

Washington Law Review

The recent privatization of real property is an important step in Russia's transition from a planned to market economy. This privatization creates opportunities for foreigners in the Russian realty market. However, foreigners are not likely to enter this market unless rights to immovable property are certain and secure. This Comment describes the new Russian immovable property Registration Law and argues that, despite its drawbacks, it creates a workable system that will provide certainty and security in rights to Russian immovable property. Furthermore, the Comment advises foreign investors on how to avoid potential problems the new law creates.

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Mad Cows, Offended Emus, And Old Eggs: Perishable Product Disparagement Laws And Free Speech, Lisa Dobson Gould Oct 1998

Mad Cows, Offended Emus, And Old Eggs: Perishable Product Disparagement Laws And Free Speech, Lisa Dobson Gould

Washington Law Review

In the wake of the 1989 controversy over Alar use on apples, several states enacted laws providing a civil cause of action to producers damaged by false statements disparaging the safety of their perishable food products. Commentators have suggested that these laws are unconstitutional and contrary to the First Amendment's free speech protections. This Comment argues that the majority of state laws either meet or exceed the constitutional protections established by the U.S. Supreme Court's defamation cases. However, these laws are unlikely to be used widely in the future because of their stringent proof requirements and because such suits often …

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Treating Prior Terminations Of Parental Rights As Grounds For Present Terminations, Kathleen Haggard Oct 1998

Treating Prior Terminations Of Parental Rights As Grounds For Present Terminations, Kathleen Haggard

Washington Law Review

The federal Adoption and Safe Families Act of 1997 recognized that in certain egregious circumstances, states need not seek to reunify a family before terminating the rights of abusive and neglectful parents. Washington State responded by revising its termination of parental rights statute to treat parents' violent criminal convictions as sole grounds for terminating parental rights. This Comment argues that the Washington statute should be further amended to recognize that a termination of rights to a previous child may serve as grounds for terminating rights to a present child if the State finds the parent's continuing behavior puts the child …

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Unilateral Refusals To Deal In Intellectual Property After Image Techical Services, Inc. V. Eastman Kodak Co., Brian F. Ladenburg Oct 1998

Unilateral Refusals To Deal In Intellectual Property After Image Techical Services, Inc. V. Eastman Kodak Co., Brian F. Ladenburg

Washington Law Review

While the Federal Patent and Copyright Acts give patent and copyright holders limited exclusive rights in intellectual property, the Sherman Act prohibits combinations or conspiracies that restrain trade and monopolization. Although firms possessing intellectual property generally exercise their statutory exclusionary rights without running afoul of the antitrust laws, conduct may plausibly be authorized by intellectual property law but forbidden by antitrust. In construing the two statutory schemes, federal courts have generally held that conduct authorized by the intellectual property laws, in the absence of some further inculpatory action, cannot form the basis for antitrust liability. The Ninth Circuit departed from …

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The Fox Guarding The Henhouse: Newman V. King County And Washington's Freedom Of Information Law, Julia E. Markley Oct 1998

The Fox Guarding The Henhouse: Newman V. King County And Washington's Freedom Of Information Law, Julia E. Markley

Washington Law Review

In its 1997 decision Newman v. King County, the Supreme Court of Washington created a categorical exemption for open police files under the Public Disclosure Act (PDA). The court reasoned that if a police file was open, its confidentiality was necessarily "essential for effective law enforcement," and thus came within an exemption from disclosure. As a result of the court's decision, law enforcement agencies need only assert that an investigation is active in order for the public record to be exempt. This Note argues that the majority's broad and abstract opinion is contrary to the law and facts of …

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Circuit Over Troubled Waters: Ninth Circuit Comparative Fault Principles In Seaman's Personal Injury Actions, Orland S. Seballos Oct 1998

Circuit Over Troubled Waters: Ninth Circuit Comparative Fault Principles In Seaman's Personal Injury Actions, Orland S. Seballos

Washington Law Review

Maritime personal injury actions employ the comparative fault doctrine, under which damages are allocated between mutually negligent parties according to their proportionate fault. This Comment focuses on recurring issues Ninth Circuit courts have faced in this area: apportioning liability in cases of violations by seamen's employers of Occupational Safety and Health Act (OSHA) regulations, and determining whether to include both causation and fault in making the apportionment. This Comment argues that the Ninth Circuit should adopt rules consistent with the pronounced congressional and U.S. Supreme Court policies of achieving uniformity in domestic and international admiralty and providing liberal recovery for …

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A Lack Of Trust: South Dakota V. Yankton Sioux Tribe And The Abandonment Of The Trust Doctrine In Reservation Diminishment Cases, A.J. Taylor Oct 1998

A Lack Of Trust: South Dakota V. Yankton Sioux Tribe And The Abandonment Of The Trust Doctrine In Reservation Diminishment Cases, A.J. Taylor

Washington Law Review

Over the past three decades, the U.S. Supreme Court has repeatedly confronted the issue of whether Indian reservation lands sold to non-Indian settlers at the turn-of-the-century under Congress's allotment policy remain tribal territory for jurisdictional purposes. As the means of adjudicating these reservation diminishment cases, the Court has adopted a troubled three-pronged analytical approach. The Court's approach circumvents well-established rules of construction and diverges significantly from historic principles embodied in the trust doctrine that forms the ideological foundation of Indian law. The Court's recent decision in South Dakota v. Yankton Sioux Tribe exposes important shortcomings in the Court's multi-factor analysis …

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In The Wake Of Lough V. Brunswick Corp.: Who Decides Experimental Purpose In 35 U.S.C. § 102(B) Public Use Cases?, Chad P. Webster Oct 1998

In The Wake Of Lough V. Brunswick Corp.: Who Decides Experimental Purpose In 35 U.S.C. § 102(B) Public Use Cases?, Chad P. Webster

Washington Law Review

Pursuant to 35 U.S.C. § 102(b), a defendant can avoid liability for patent infringement if the patented invention was in public use in the United States more than one year prior to the date of patent application. Although "public use" is broadly construed to include most nonsecret uses, a nonsecret use pursued primarily for bona fide experimental purposes is merely an "experimental use." Experimental use negates the conclusion that an invention was in public use within the meaning of section 102(b). In Lough v. Brunswick Corp., the U.S. Court of Appeals for the Federal Circuit held that the issues …

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Land Law Subsystems? Urban Vietnam As A Case Study, John Gillespie Jul 1998

Land Law Subsystems? Urban Vietnam As A Case Study, John Gillespie

Washington International Law Journal

Throughout Vietnam's long history, the central elite and peripheral farming communities have been legally and culturally divided. This dichotomy was never as complete as the famous injunction that "the emperor's writ stops at the village gate" infers. Initially, during the period of French colonisation and more recently since the introduction of doi moi (renovation) economic reforms, central authorities have attempted to unify land management with universal normative law. This experiment has stimulated widespread non-compliance with land laws in urban centres; in some areas compliance is a fringe phenomenon. In this divided legal geography, pockets of non-compliance give the appearance of …

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An Overview Of Washington's Growth Management Act, Eric S. Laschever Jul 1998

An Overview Of Washington's Growth Management Act, Eric S. Laschever

Washington International Law Journal

Beginning in the 1970s, a number of states began adopting state wide growth management statutes. In response to increasing population pressures, Washington State enacted its Growth Management Act ("GMA") in 1990. This article examines the GMA's requirements for comprehensive plans, its enforcement and appeals provisions, and the relationship of the GMA to other Washington State laws, including the State Environmental Policy Act and the Shoreline Management Act. The GMA has significantly changed the land use planning process in Washington, and its effects can already be seen in wide spread protection of critical areas, the designation of urban growth policies, and …

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The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist Jul 1998

The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist

Washington Law Review

By utilizing both a backward and forward looking perspective, this Article develops a model conducive to better understand the Internet's legal implications on economic regulation. The model is also intended to help legislators and regulators adapt their legal and regulatory frameworks to the Internet. This Article canvasses and builds upon the burgeoning development of Internet law. It suggests that the Internet's impact on economic regulation is best understood by classifying its effects into four categories, each of which requires a different regulatory response. It also considers potential solutions for adapting economic regulation to the Internet. This Article concludes that no …

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Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris Jul 1998

Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris

Washington Law Review

The Americans with Disabilities Act (ADA) protects individuals with disabilities from discrimination. Since its passage in 1991, the number of individuals seeking protection under the Act has steadily increased and the types of impairments claimed to qualify as disabilities have dramatically expanded. Many disability claims test the boundaries of the Act and reveal a muddied conception of what constitutes a disability for purposes of the ADA. This Article investigates the meaning of the term disability to define more clearly who should benefit under the Act. By focusing on controlled impairments, a group of disability claims that has produced a split …

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The Press: Its Sins And Grace, Anthony Lewis Jul 1998

The Press: Its Sins And Grace, Anthony Lewis

Washington Law Review

Under the First Amendment, as it has come to be understood, the American press has more freedom than the press of any other country. I want to explore the question of what our press does with that great freedom. Does it show a matching responsibility? How well does it perform the role that the framers of the Constitution thought justified the protection they were giving us, the role of holding government accountable to the people? James Madison put it that in the United States "the people, not the government, possess the absolute sovereignty." That was "altogether different" from Britain, he …

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The Drudge Case: A Look At Issues In Cyberspace Defamation, Robert M. O'Neil Jul 1998

The Drudge Case: A Look At Issues In Cyberspace Defamation, Robert M. O'Neil

Washington Law Review

In the days following Newsweek's January 1998 decision to defer publication of an exposé of President Clinton's alleged affair with White House intern Monica Lewinsky, attention focused on the medium where the story first appeared: Matt Drudge's online gossip column, The Drudge Report. Though his postings on this issue seem to have been substantially accurate, Mr. Drudge has recently been sued for defamation because an earlier Report carried a story of a quite different sort, in which even he conceded there were some flaws. That lawsuit provides a vehicle through which to explore a fascinating array of legal …

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"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski Jul 1998

"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski

Washington Law Review

The split-enforcement model of agency administration creates a dilemma for the adjudicating agency regarding how much deference it should allot interpretive documents promulgated by the agency with rulemaking authority. In 1992, Congress sought to resolve this problem in the area of aviation safety by statutorily mandating that the adjudicating agency, the National Transportation Safety Board (NTSB), defer to "validly adopted" interpretations generated by the rulemaking agency, the Federal Aviation Administration (FAA). Ironically, the statute created even more uncertainty because the term "validly adopted" is vague and remains undefined. Subsequent decisions have not clarified exactly when the NTSB considers itself bound. …

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Seeley V. State: The Need For Definitional Balancing In Washington Substantive Due Process Law, Kristiana L. Farris Jul 1998

Seeley V. State: The Need For Definitional Balancing In Washington Substantive Due Process Law, Kristiana L. Farris

Washington Law Review

Seeley v. State, concerning the medical use of marijuana, underscored yet again the fundamental tensions and flaws in federal substantive due process analysis. The U.S. Supreme Court has increasingly restricted the definition of fundamental rights, leaving many important interests exposed to the highly deferential rational relationship standard for state regulation. Under the bifurcated federal substantive due process test, the initial classification of an individual interest as fundamental or non-fundamental is highly outcome determinative, leading to contorted definitions of individual rights before the test for the validity of a regulation is even applied. Washington has generally followed federal constitutional law …

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A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines Jul 1998

A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines

Washington Law Review

Maintaining the success and fairness of mediation requires mediators to be impartial toward all parties and to protect the confidentiality of mediation sessions. Attorney-mediators encounter conflicts of interest, based on prior or subsequent representation of clients, that can disrupt impartiality or confidentiality. When attorneys practice mediation, it is unclear where they should look for guidance: attorney rules of professional conduct, mediator ethical standards, or both. Additionally, attorney-mediators encounter unique issues that ethical guidelines designed for attorneys or mediators do not address adequately. This Comment proposes a comprehensive conflict of interest rule for inclusion in the Rules of Professional Conduct that …

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Law Student Advocates And Conflicts Of Interest, Adrienne Thomas Mccoy Jul 1998

Law Student Advocates And Conflicts Of Interest, Adrienne Thomas Mccoy

Washington Law Review

Law students who represent clients under attorney supervision are subject to no clear conflict of interest rules. Whether they are considered lawyers or nonlawyers for purposes of each state's ethics rules is uncertain. Available rules governing lawyer and nonlawyer conflicts of interest ignore the competing interests of legal education, law student employment, clients, and public service. This Comment proposes a student conflict of interest rule that balances these interests by (1) holding student advocates to high ethical standards and (2) allowing screening to cure most conflicts that occur within student representation and that would otherwise handicap students in future employment

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No More Messing Around: Substantive Due Process Challenges To State Laws Prohibiting Fornication, Traci Shallbetter Stratton Jul 1998

No More Messing Around: Substantive Due Process Challenges To State Laws Prohibiting Fornication, Traci Shallbetter Stratton

Washington Law Review

Anglo-American law has historically prohibited fornication, and through the 1960s fornication remained illegal in all but ten states. Few questioned the validity of laws proscribing various forms of private, adult, consensual sexual behavior until the early 1970s. Aside from legislative repeal, substantive due process has been the primary weapon in the fight against state sex laws. Although the U.S. Supreme Court's substantive due process jurisprudence, particularly in the area of personal privacy, has brought the constitutionality of fornication statutes into question, it has not definitively resolved the matter. This Comment argues that laws prohibiting fornication do not violate substantive due …

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Korea's Greenbelts: Impacts And Options For Change, Chang-Hee Christine Bae Jul 1998

Korea's Greenbelts: Impacts And Options For Change, Chang-Hee Christine Bae

Washington International Law Journal

The discussions about urban growth boundaries in the United States have paid little attention to Korea's Greenbelt policy. Established in 1971, Seoul's massive Greenbelt has been rigidly maintained, although there have been some minor exceptions over the years. The liberalization of the Korean economy and the democratization of Korean society have been accompanied by deregulation in many spheres. However, land use planning remains tightly constrained, and there has only been minimal relaxation of the land laws; in fact, on balance they have become tougher. Some scholars have begun to question whether the Greenbelt might have restricted economic growth in Korea …

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Infrastructure Services And Financing In Chinese Cities, Kam Wing Chan Jul 1998

Infrastructure Services And Financing In Chinese Cities, Kam Wing Chan

Washington International Law Journal

As urbanization accelerates and cities expand their role in the Chinese economy, expensive urban infrastructural facilities and financing have become major policy issues. Drawing on fieldwork in five cities in 1994 as well as national statistics, this Article analyzes the provision of urban infrastructure services and financing. As marketization proceeds, an overhaul of the urban public finance system, along with a redefinition of the role of local government in China, is urgently required.

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"The Best Laid Schemes . . . ": Land-Use Planning And Historic Preservation In Cambodia, William Chapman Jul 1998

"The Best Laid Schemes . . . ": Land-Use Planning And Historic Preservation In Cambodia, William Chapman

Washington International Law Journal

This Article examines existing land use laws and proposed historic preservation-related legislation in Cambodia and offers a critical appraisal of their applicability and hopes for success. Cambodia is a small country that faces (and has faced) numerous political and economic difficulties. It possesses a rich architectural and archaeological heritage that is threatened by proposed land-use changes and future development. Initiated primarily by outsiders, principally planners and archaeologists from Europe and the United States, Cambodia's newly formulated land-use laws attempt to take irreplaceable cultural resources into account. However, plans such as those proposed by UNESCO and consultants to the government appear …

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Square Pegs And Round Holes: Fitting Modern Title Into Traditional Societies In Indonesia, Timothy Lindsey Jul 1998

Square Pegs And Round Holes: Fitting Modern Title Into Traditional Societies In Indonesia, Timothy Lindsey

Washington International Law Journal

In Indonesia, diverse interests in land recognised by dozens, maybe hundreds, of different adat (traditional customary legal systems) coexist with a Dutch-derived system of land title. The most problematic adat interest is traditional communal title, or hak ulayat. Indonesia's New Order government sees adat rights—and hak ulayat in particular—as incompatible with the demands of economic development. Although some adat rights are recognised in the key statute regulating interests in land, the Basic Agrarian Law, the New Order government has systematically subverted the standing of adat. Likewise, the land registration system has become a corrupt failure, with the consequence …

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Customary Title, Heritage Protection, And Property Rights In Australia: Emerging Patterns Of Land Use In The Post-Mabo Era, Maureen Tehan Jul 1998

Customary Title, Heritage Protection, And Property Rights In Australia: Emerging Patterns Of Land Use In The Post-Mabo Era, Maureen Tehan

Washington International Law Journal

The Mabo decision represented a major doctrinal change in the relationship between Indigenous people and the settler legal system. However, significant legislative developments in land use and management recognizing some Indigenous interests in land had already laid the groundwork for joint land management schemes and concurrent land uses. These developments have formed the basis for ongoing expansion of coexistent land uses with the negotiation of formal and informal agreements for co-management of land. A range of factors influence these agreements, including the existence of enforceable property rights and non-property based heritage protection legislation. These regimes are currently in a state …

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Getting A Seat At The Table: Giving The Indigenous Peoples Of The Russian Far East Control Over Local Government, Stephen R. King Jul 1998

Getting A Seat At The Table: Giving The Indigenous Peoples Of The Russian Far East Control Over Local Government, Stephen R. King

Washington International Law Journal

The traditional homelands of the indigenous peoples of Siberia and the Russian Far East harbor vast wealth in the form of timber, minerals, oil, and gas. Throughout much of the 20th Century, the Soviet Union used forced relocation of native peoples, expropriation of native lands, and other harsh means to gain access to these resources. The native peoples received little or no compensation for the vast natural wealth that the Soviet government took from their lands, and the government often left the land so polluted that it could no longer support the native people's hunting and herding ways-of-life. The Russian …

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A Lesson In Ingenuity: Chinese Farmers, The State, And The Reclamation Of Farmland For Most Any Use, Kari Madrene Larson Jul 1998

A Lesson In Ingenuity: Chinese Farmers, The State, And The Reclamation Of Farmland For Most Any Use, Kari Madrene Larson

Washington International Law Journal

Since 1978, China has achieved significant improvements in the rural sector through the adoption of the baogan daohu system, which effectively dismantled the communal farming system and created individual family farms. However, meaningful measures must be taken to ensure that farmers have continued use of their farmland and that illegal land reclamation by local govermnents is halted. Because farmers' rights are not clearly articulated and cannot be readily enforced, local governments appear to be beyond central government control. Furthermore, due to the state's right to reclaim land under any logic, farmers' rights may ultimately be nonexistent. Though developing a meaningful …

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The Rhetoric And Reality Of Water Quality Protection In China, W. Scott Railton Jul 1998

The Rhetoric And Reality Of Water Quality Protection In China, W. Scott Railton

Washington International Law Journal

With the majority of its freshwater sources polluted, and the pursuant incurrence of significant economic losses, and substantial health risks, China has reached a critical stage in its water resource management. Past efforts to legislate for water quality protection, although promising in content, have been less than effective. Four modes of enforcement—administrative controls, economic incentives, legal responsibility, and campaigns—have achieved only moderate success. This Comment examines the statutory and regulatory framework for water pollution control in China and suggests that if China's water pollution controls are ever to be more than mere rhetoric, China must focus on eliminating conflicts of …

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