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Articles 1 - 30 of 36
Full-Text Articles in Law
The Fox Guarding The Henhouse: Newman V. King County And Washington's Freedom Of Information Law, Julia E. Markley
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 …
Mad Cows, Offended Emus, And Old Eggs: Perishable Product Disparagement Laws And Free Speech, Lisa Dobson Gould
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 …
A Proposed Antitrust Approach To The Conduct Of Retailers, Dealers, And Other Resellers, Thomas A. Piraino Jr.
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 …
Proposed Ninth Circuit Split. The Icebox Cometh: A Former Clerk's View Of The Proposed Ninth Circuit Split, Jennifer E. Spreng
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 …
Circuit Over Troubled Waters: Ninth Circuit Comparative Fault Principles In Seaman's Personal Injury Actions, Orland S. Seballos
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 …
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 …
The Russian Title Registration System For Realty And Its Effect On Foreign Investors, Lev S. Batalov
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.
Proposed Ninth Circuit Split: Response. Malthus And The Court Of Appeals: Another Former Clerk Looks At The Proposed Ninth Circuit Split, Aaron H. Caplan
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.
Treating Prior Terminations Of Parental Rights As Grounds For Present Terminations, Kathleen Haggard
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 …
Unilateral Refusals To Deal In Intellectual Property After Image Techical Services, Inc. V. Eastman Kodak Co., Brian F. Ladenburg
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 …
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
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 …
"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski
"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. …
Law Student Advocates And Conflicts Of Interest, Adrienne Thomas Mccoy
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
A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines
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 …
The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist
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 …
The Drudge Case: A Look At Issues In Cyberspace Defamation, Robert M. O'Neil
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 …
Seeley V. State: The Need For Definitional Balancing In Washington Substantive Due Process Law, Kristiana L. Farris
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 …
Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris
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 …
The Press: Its Sins And Grace, Anthony Lewis
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 …
No More Messing Around: Substantive Due Process Challenges To State Laws Prohibiting Fornication, Traci Shallbetter Stratton
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 …
Riss V. Angel: Washington Remodels The Framework For Interpreting Restrictive Covenants, Casey J. Little
Riss V. Angel: Washington Remodels The Framework For Interpreting Restrictive Covenants, Casey J. Little
Washington Law Review
In Riss v. Angel, the Supreme Court of Washington declared that in disputes between subdivision homeowners, courts must construe restrictive covenants to give effect to the covenants' intended purposes by considering surrounding circumstances to protect the homeowners' collective interests. The court further held that when restrictive covenants grant discretion to architectural review committees (ARCs) to approve new construction or remodels, ARCs or other homeowners association committees that enforce such covenants must exercise their authority reasonably and in good faith. Riss represents a departure from prior precedent that required courts to construe strictly the terms of restrictive covenants to limit …
Sex Discrimination And Insurance For Contraception, Sylvia A. Law
Sex Discrimination And Insurance For Contraception, Sylvia A. Law
Washington Law Review
Unintended pregnancy is a serious problem in the United States. Most private insurance plans do not pay for contraception even though they pay for other prescription drugs and devices. This Article argues that this pattern constitutes sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. It discusses the reasons this issue has been neglected and suggests ways federal and state officials might remedy this common form of gender discrimination.
Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen
Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen
Washington Law Review
Professors Swygert and Yanes seek to bring efficiency and equity to bear explicitly on the economic analysis of law by merging Rawlsean social contract philosophy into law and economics' basic premise, the Coase Theorem. We are in complete agreement with Swygert and Yanes that good legal policy should be concerned with both efficiency and equity, and we welcome their attempt to merge the two as a useful step in an important debate. Ultimately, though, we are unconvinced by their argument as it currently stands for two reasons. First, by focusing only on the way in which their approach might affect …
The Property Scope Of Habeas Corpus Review In Civil Removal Proceedings, Andrea Lovell
The Property Scope Of Habeas Corpus Review In Civil Removal Proceedings, Andrea Lovell
Washington Law Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), two 1996 amendments to the Immigration and Nationality Act, eliminated direct judicial review in the federal courts of appeals of final removal orders for aliens convicted of certain enumerated crimes. The legislation also appears to limit the habeas corpus jurisdiction of the federal district courts. While most circuit courts agree that some degree of habeas corpus review of removal orders is constitutionally mandated, several have interpreted AEDPA and IIRIRA as limiting the scope of that review. This Comment argues that the scope …
Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.
Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.
Washington Law Review
Swygert and Yanes, in an article in this issue of the Washington Law Review, suggest a means to achieve this integration. In this Article, I first discuss the shortcomings of the approach suggested by Swygert and Yanes. Next, I suggest a more practical approach for integrating efficiency and equity that relies on benefit cost analysis. Finally, I consider some of the cases to which Swygert and Yanes apply their analysis. The fundamental shortcoming of the Swygert and Yanes approach is that it offers little for deciding practical cases. The authors combine two abstract and heuristic proposals and quite naturally …
Asymptomatic Hiv As A Disability Under The Americans With Disabilities Act, Elizabeth C. Chambers
Asymptomatic Hiv As A Disability Under The Americans With Disabilities Act, Elizabeth C. Chambers
Washington Law Review
The Americans with Disabilities Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected …
Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes
Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes
Washington Law Review
An idea generally shared by both economists and philosophers is that a legal rule may either achieve distributive fairness or bring about an efficient outcome, but not both. In this Article, the authors argue that justice requires that legal rules consider both fairness and efficiency. The Article discusses the Coase Theorem, as a tool for determining the most efficient allocation of rights and duties, and the ideas of John Rawls for deriving a fair social contract. The authors then combine aspects of these two hypothetical consensus models into a unified theory of justice that considers the question of what agreements …
Capitalizing The Target's Transaction Costs In Hostile Takeovers, David J. Roberts
Capitalizing The Target's Transaction Costs In Hostile Takeovers, David J. Roberts
Washington Law Review
In A.E. Staley Manufacturing Co. v. Commissioner, the Court of Appeals for the Seventh Circuit held that costs a corporation incurred to resist a hostile takeover were analogous to costs incurred to defend a business against attack and thus qualified as ordinary and necessary business expenses deductible under Internal Revenue Code section 162. Alternatively, the court held that those costs associated with abandoned capital transactions qualified for loss deductions under section 165. This Note argues that although the court reached approximately the right result in this case, its primary reliance on a defense of business rationale for deductibility under …
Preventing Insider Misappropriation Of Not-For-Profit Health Care Provider Assets: A Federal Tax Law Prescription, John F. Coverdale
Preventing Insider Misappropriation Of Not-For-Profit Health Care Provider Assets: A Federal Tax Law Prescription, John F. Coverdale
Washington Law Review
Not-for-profit health care providers are converting to for-profit status on an unprecedented scale. Directors and officers have too frequently taken advantage of the conversions to misappropriate the organizations' assets. Common law remedies have proven inadequate, and many states have no specific statutory remedies. The state statutory remedies that have been enacted range from fairly comprehensive to quite inadequate. Not-for-profit health providers are generally also subject to the federal tax rules governing tax-exempt organizations. Until recently, however, the only sanction available to the Internal Revenue Service (IRS) was to revoke the organization's tax-exempt status. The IRS rarely invoked this remedy both …
The Roles Of Comparative Law: Inaugural Lecture For The Dan Fenno Henderson Professorship In East Asian Legal Studies, Daniel H. Foote
The Roles Of Comparative Law: Inaugural Lecture For The Dan Fenno Henderson Professorship In East Asian Legal Studies, Daniel H. Foote
Washington Law Review
Being named to the Dan Fenno Henderson Professorship in East Asian Legal Studies is at one and the same time a proud and truly humbling moment. It is especially humbling to hold a professorship bearing the illustrious name of Dan Fenno Henderson. In the Japanese law field, Henderson is without peer. He created the field as we know it today, and his accomplishments are truly staggering.