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Articles 1 - 30 of 33
Full-Text Articles in Law
A Proposal To Bring The Becca Bill's Runaway-Detention Provisions Into Compliance With Juveniles' Procedural Due Process Rights, Carrie A. Tracy
A Proposal To Bring The Becca Bill's Runaway-Detention Provisions Into Compliance With Juveniles' Procedural Due Process Rights, Carrie A. Tracy
Washington Law Review
The Becca Bill, enacted in Washington State in 1995, changed the way Washington treats runaway juveniles. The Bill creates a series of secure crisis residential centers and authorizes law enforcement officers to take juvenile runaways into custody and place them in these secure facilities. The facilities must keep the admitted juveniles for at least twenty-four hours but no more than five days. This Comment argues that the Becca Bill, which provides no judicial review of the commitment to detention, violates the procedural due process requirements of Washington and U.S. constitutions. While courts have extended procedural due process protection to juveniles' …
Clearly Defining Preclusive Corporate Lock-Ups: A Bright-Line Test For Lock-Up Provisions In Delaware, Michael G. Hatch
Clearly Defining Preclusive Corporate Lock-Ups: A Bright-Line Test For Lock-Up Provisions In Delaware, Michael G. Hatch
Washington Law Review
Merger mania currently grips the United States as corporations scramble to find merger partners to achieve strategic goals. In their quest for a competitive advantage, large corporations are increasingly willing to use hostile takeovers to deny competitors the benefits of a strategic mergers. In response, merging corporations have granted record-breaking lockup. provisions in an attempt to protect their deals. Delaware's current framework for evaluating the validity of lock-up provisions requires courts to apply different levels of scrutiny depending on the form of the transaction. However, Delaware courts have inconsistently applied the correct standard and have failed to identify preclusive lock-ups. …
State V. Parker: Searching The Belongings Of Nonarrested Vehicle Passengers During A Search Incident To Arrest, H. Matthew Munson
State V. Parker: Searching The Belongings Of Nonarrested Vehicle Passengers During A Search Incident To Arrest, H. Matthew Munson
Washington Law Review
The Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Washington Constitution generally require a warrant supported by probable cause to conduct a search or seizure. One exception to these requirements is a search incident to arrest, which permits the police to search arrested persons and the area within the arrestee's reach for weapons and evidence. Prior to State v. Parker, when police arrested an occupant of an automobile in Washington, they could search the entire passenger compartment of the vehicle with the exception of locked containers. In State v. Parker, a plurality of …
Doctoring Prescriptions: Federal Barriers To Combating Prescription Drug Fraud Against On-Line Pharmacies In Washington, Eric M. Peterson
Doctoring Prescriptions: Federal Barriers To Combating Prescription Drug Fraud Against On-Line Pharmacies In Washington, Eric M. Peterson
Washington Law Review
Prescription drug abuse represents a significant portion of drg abuse in the United States. Drug-seeking individuals alter, steal, or forge prescriptions to sustain their own dependence on prescription medications or to divert the drugs to sell to others at inflated rates. On-line pharmacies are a relatively new source for prescription medications and a potential target for prescription drug fraud. The federal government recently enacted the Electronic Signatures in Global and National Commerce Act (E-SIGN), which governs electronic signatures and preempts inconsistent provisions of state laws, such as the Washington Electronic Authentication Act (WEAA). WEAA is a legal framework that could …
Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo
Washington Law Review
Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …
Ex Parte Young And Federal Remedies For Human Rights Treaty Violations, David Sloss
Ex Parte Young And Federal Remedies For Human Rights Treaty Violations, David Sloss
Washington Law Review
The doctrine of Ex parte Young is typically described as an exception to the immunity granted by the Eleventh Amendment of the U.S. Constitution. This Article contends that the Young doctrine also stands for the proposition that the Supremacy Clause creates an implied right of action for injunctive relief against state and local government officers who violate federal statutes or treaties. That right of action is available to plaintiffs who seek to enforce federal statutes or treaties against government officers unless Congress foreclosed the availability of a Young remedy when it enacted the statute, or the treaty makers foreclosed the …
Fundamental Protection Of A Fundamental Right: Full Recovery Of Child-Rearing Damages For Wrongful Pregnancy, Patricia Baugher
Fundamental Protection Of A Fundamental Right: Full Recovery Of Child-Rearing Damages For Wrongful Pregnancy, Patricia Baugher
Washington Law Review
The U. S. Constitution and Washington statutes protect the right to choose not to have a child as a fundamental right. When a healthy child is born after contraceptive methods fail due to physician negligence, parents can sue on a "wrongful pregnancy" cause of action. In all jurisdictions recognizing wrongful pregnancy, parents may recover damages for medical expenses associated with pregnancy and childbirth. A controversy exists, however, concerning whether parents may recover the ordinary expenses of child rearing. While some states allow full recovery of these expenses, and other states allow recovery of the economic expense offset by the emotional …
Long Live The Dead Hand: A Case For Repeal Of The Rule Against Perpetuities In Washington, Keith L. Butler
Long Live The Dead Hand: A Case For Repeal Of The Rule Against Perpetuities In Washington, Keith L. Butler
Washington Law Review
The common law rule against perpetuities has had a storied career spanning several centuries and two legal systems. The rule developed to curb the concentration of wealth in the hands of a few, and to limit the control of property by those no longer alive to use it. Legendary for its complexity, the rule has undergone statutory reform in many states; some states have gone so fara s to repeal the rule outright. Washington has embraced two of the major reforms of the rule and is considering repeal. This Comment argues that the rule, even with reform, no longer serves …
Toward Transaction-Specific Standards Of Directorial Fiduciary Duty In The Tracking-Stock Context, Jeffrey J. Schick
Toward Transaction-Specific Standards Of Directorial Fiduciary Duty In The Tracking-Stock Context, Jeffrey J. Schick
Washington Law Review
In recent years, diversified corporations have increasingly turned to tracking stocks to uncouple high-growth businesses, especially Internet-related operations, from more static business entities. Tracking stock is a unique type of common stock that represents an interest in the financial performance of particular business groups within a diversified parent corporation. However, the tracked business groups are not independent of the parent corporation, and the parent's board of directors still governs the affairs of each business group. This creates unique conflicts for directors who must please multiple groups of stockholders whose interests are not always consistent. Delaware courts have not announced a …
Lawyer Communications On The Internet: Beginning The Millennium With Disparate Standards, Louise L. Hill
Lawyer Communications On The Internet: Beginning The Millennium With Disparate Standards, Louise L. Hill
Washington Law Review
Lawyer communications on the Internet constituting commercial speech are subject to state ethics rules governing lawyer advertising and communication. Because each state operates as a separate entity with its own rules that govern the lawyers of its jurisdiction, the profession is faced with disparate standards on a jurisdictional basis. Of the forty-three states that have adopted the Model Rules of Professional Conduct, four-fifths have standards on lawyer communications that vary from those in the Model Rules. Not only is there variation in the rules themselves, but differences exist in the specific applicability and interpretation of these rules to components of …
Beating Again And Again And Again: Why Washington Needs A New Rule Of Evidence Admitting Prior Acts Of Domestic Violence, Linell A. Letendre
Beating Again And Again And Again: Why Washington Needs A New Rule Of Evidence Admitting Prior Acts Of Domestic Violence, Linell A. Letendre
Washington Law Review
Batterers in Washington who use violence to control their intimate partners routinely avoid conviction and punishment due to the difficulties of prosecuting domestic violence cases. Prosecutors often face complex problems, such as recanting victims, lack of other witnesses, and juries inherently biased against battered women. Although some Washington prosecutors have found ways to introduce evidence of prior domestic violence in certain limited circumstances, Washington Rule of Evidence 404(b) generally precludes the use of evidence showing prior domestic violence. This Comment argues that this evidence rule prevents the admission of highly probative evidence of prior abuse against current or past victims …
Bifurcation Unbound, Steven S. Gensler
Bifurcation Unbound, Steven S. Gensler
Washington Law Review
The bifurcation of issues in a federal trial under Federal Rule of Civil Procedure 42(b) offers many benefits for both litigants and the judiciary. One of the greatest potential benefits of issue bifurcation is increased judicial efficiency. Frequently the jury's disposition of the first issue will obviate the need to try the remaining issues. Despite this efficiency potential, bifurcation is controversial. Historically, the opponents of bifurcation have leveled three primary criticisms against bifurcation: (1) that it skews verdict outcomes in favor of defendants, (2) that it infringes on the role of the civil jury, and (3) that it creates a …
One Crime, Many Convicted: Dissociative Identity Disorder And The Exclusion Of Expert Testimony In State V. Greene, Mary Eileen Crego
One Crime, Many Convicted: Dissociative Identity Disorder And The Exclusion Of Expert Testimony In State V. Greene, Mary Eileen Crego
Washington Law Review
In State v. Greene, the Supreme Court of Washington held that expert testimony about Dissociative Identity Disorder (DID) was not admissible to support an insanity or diminished-capacity defense. Even though the court acknowledged DID as a generally accepted medical disorder, the court reasoned that such testimony would not be helpful to the trier of fact, as required by Washington Evidence Rule (ER) 702, because the court has not established a specific standard for determining the legal responsibility of a defendant with multiple personalities. This Note argues that the Greene court had sufficient scientific evidence to establish a legal standard …
Mail-Order Gun Kits And Fingerprint-Resistant Pistols: Why Washington Courts Should Impose A Duty On Gun Manufacturers To Market Firearms Responsibly, Amy Edwards
Washington Law Review
Plaintiffs have historically been unsuccessful in suing gun manufacturers for injuries inflicted by the criminal acts of third parties. Until recently, with one exception, courts uniformly found no basis for liability under either strict liability or general negligence claims. In three recent cases, however, courts have imposed a duty under negligent-marketing theories. These theories have yet to be tested in Washington. This Comment examines the potential viability of a lawsuit by victims of gun violence against gun manufacturers for negligent marketing in Washington. It ultimately concludes that Washington courts can and should impose a duty on gun manufacturers to refrain …
Actual Versus Legal Control: Reading Vicarious Liability For Copyright Infringement Into The Digital Millennium Copyright Act Of 1998, Charles S. Wright
Actual Versus Legal Control: Reading Vicarious Liability For Copyright Infringement Into The Digital Millennium Copyright Act Of 1998, Charles S. Wright
Washington Law Review
Title 11 of the Digital Millennium Copyright Act of 1998 purports to limit the liability of Internet service providers that have been found vicariously liable for copyright infringement. However, by basing this limitation on the absence of the "benefit" and "control" elements of the common law test for vicarious liability, the plain language of Title II, codified at 17 U.S.C. § 512, appears to preclude statutory protection once a court has found a service provider vicariously liable. This Comment argues that courts must read a narrow definition of "actual" control into 17 U.S.C. § 512(c)(1)(B) in order to preserve the …
The Myth Of Property Absolutism And Modern Government: The Interacation Of Police Power And Property Rights, Philip A. Talmadge
The Myth Of Property Absolutism And Modern Government: The Interacation Of Police Power And Property Rights, Philip A. Talmadge
Washington Law Review
A new movement in America espousing a novel doctrine, property-rights absolutism, has gained some popular and political appeal. But the property rights absolutists tend to ignore the societal foundations of property, and especially de-emphasize the responsibilities property owners have to the community in which they live. They fail to consider properly the significance of the police power and its vital role in the American and Washington State constitutional systems. This Article debunks the newly minted mythology of the property-rights absolutists and places the police power and property rights in their proper historical perspective.
Copyright Statutes That Regulate Technology: A Comparative Analysis Of The Audio Home Recording Act And The Digital Millennium Copyright Act, Benton J. Gaffney
Copyright Statutes That Regulate Technology: A Comparative Analysis Of The Audio Home Recording Act And The Digital Millennium Copyright Act, Benton J. Gaffney
Washington Law Review
Over the past two decades, as the presence of digital technology has become more and more ubiquitous, its tremendous capabilities of reproduction and distribution have created difficult issues for copyright law. Recently, Congress has addressed some of these issues by taking the nontraditional approach of directly regulating the manufacture, development, and distribution of technology. In 1992, Congress enacted the Audio Home Recording Act, requiring that all digital audio recording devices possess a serial copy management system to limit the copying of digital music recordings. Six years later, Congress passed the Digital Millennium Copyright Act, making it a crime to manufacture …
Disobedience And Contempt, Margit Livingston
Disobedience And Contempt, Margit Livingston
Washington Law Review
A court's power to impose contempt sanctions on recalcitrant individuals is essential to ensure orderly judicial proceedings and obedience of judicial decrees. Despite repeated efforts to distinguish between civil and criminal contempt and the procedures required for each, the U.S. Supreme Court arguably has failed to delineate a precise demarcation between the two that considers both the due process interests of alleged contemnors and the remedial needs of party plaintiffs. This Article suggests that the Court's latest major decision on the differences between civil and criminal contempt, International Union, United Mine Workers v. Bagwell, represents the high water mark …
Justice At The Margins: Equitable Tolling Of Washington's Deadline For Filing Collateral Attacks On Criminal Judgments, Mark A. Wilner
Justice At The Margins: Equitable Tolling Of Washington's Deadline For Filing Collateral Attacks On Criminal Judgments, Mark A. Wilner
Washington Law Review
RCW 10.73.090 establishes a one-year deadline for appealing a final criminal judgment in Washington State. This Comment argues that this one-year deadline should be subject to the doctrine of equitable tolling, which can prevent a statute of limitation from expiring when extraordinary circumstances preclude timely filing. After examining the text, legislative history, structure, purpose, and policy implications of RCW 10.73.090, this Comment demonstrates that the one-year deadline does not operate as a jurisdictional bar, which would revoke judicial power to hear a postconviction appeal after one year under any circumstances, but instead acts as a statute of limitation subject to …
"To Say The Greatest Matters In The Simplest Way": A "First Economic Injury" Rule As A Restatement Of Directness Standing Requirements In Federal Antitrust Law, Christopher B. Durbin
"To Say The Greatest Matters In The Simplest Way": A "First Economic Injury" Rule As A Restatement Of Directness Standing Requirements In Federal Antitrust Law, Christopher B. Durbin
Washington Law Review
In addition to traditional constitutional standing analysis, federal antitrust law examines a potential plaintiff's claims under a series of specialized standing requirements. One of these requirements is that the plaintiff's injury be a "direct" result of the antitrust violator's misconduct. This requirement has been prominent in recent tobacco litigation where union health care trust funds sued the major tobacco companies in antitrust to recover the costs of treating nicotine-addicted beneficiaries. Federal courts generally denied standing to the trust funds for several reasons, one of which was the trust funds' failure to satisfy the directness requirements. This Comment analyzes the tests …
Hate Exposed To The Light Of Day: Determining The Boy Scouts Of America's Expressive Purpose Solely From Objective Evidence, Cara J. Frey
Hate Exposed To The Light Of Day: Determining The Boy Scouts Of America's Expressive Purpose Solely From Objective Evidence, Cara J. Frey
Washington Law Review
In the 1980s, the U.S. Supreme Court took considerable steps toward decreasing the uncertainty surrounding an organization's associational freedoms by requiring an organization seeking to exclude individuals solely based on status to prove that its expressive purpose would be undermined if it included such members. However, these Supreme Court cases failed to establish any consistent approach to determining an organization's expressive purpose. Problems have arisen most acutely with the claims of gays seeking to be included in the Boy Scouts of America (BSA), an organization with a multifaceted and vague message. As the law now stands, courts have broad discretion …
The Search For A Distinct Religious-Liberty Jurisprudence Under The Washington State Constitution, Katie Hosford
The Search For A Distinct Religious-Liberty Jurisprudence Under The Washington State Constitution, Katie Hosford
Washington Law Review
Article I, Section 11, of the Washington Constitution, titled "Religious Freedom," provides more protection for free exercise of religion and the separation of church and state than the First Amendment to the U.S. Constitution. Because the state constitution provides broader protection for each right, a natural tension arises between the two rights. However, rather than relying on the text of the state constitution, the Supreme Court of Washington has imposed an entirely federal analysis on free exercise cases brought under Washington law. In addition, the establishment cases under Article I, Section 11, have inconsistently interpreted the language of the state …
Municipal Police Power In Washington State, Hugh D. Spitzer
Municipal Police Power In Washington State, Hugh D. Spitzer
Washington Law Review
Local governments in Washington State have enjoyed strong regulatory powers since the state's constitution was adopted in 1889. Those "police powers" initially focused on the protection of public health and safety, but broadened in the early twentieth century to encompass the protection of consumers and employees and the promotion of the general welfare. The Supreme Court of Washington sparingly applied "substantive due process" as a brake on the police power and promptly dropped that doctrine when the U.S. Supreme Court ceased its use in the 1930s. However, the vocabulary of substantive due process lived on in state court opinions defining …
Disappearing Without A Trace: Sections 11 And 12(A)(2) Of The 1933 Securities Act, Hillary A. Sale
Disappearing Without A Trace: Sections 11 And 12(A)(2) Of The 1933 Securities Act, Hillary A. Sale
Washington Law Review
The judicially created tracing requirement thwarts the remedial sections of the 1933 Securities Act (the "Securities Act") by requiring shareholders to prove the impossible—that their securities were actually issued in the questioned offering. Since 1967, courts addressing this issue have, without question, adopted a requirement for section 11 that plaintiff-shareholders trace their shares to the offering. Recently, courts have expanded it to apply to section 12(a)(2) as well. For any but the first purchases of a share of stock, this requirement has always been virtually impossible to meet. Courts have also used the 1995 opinion in Gustafson v. Alloyd Co. …
Wake-Up Call: Using The Washington Shoreline Management Act To Protect The Shorelines Of Puget Sound From High-Speed Vessel Wake Wash, Cory J. Albright
Wake-Up Call: Using The Washington Shoreline Management Act To Protect The Shorelines Of Puget Sound From High-Speed Vessel Wake Wash, Cory J. Albright
Washington Law Review
Wake wash from high-speed vessels such as the Chinook passenger ferry accelerates erosion, destroys kelp and shellfish beds, and endangers recreational boaters in Puget Sound. The Washington Shoreline Management Act (SMA) grants the Washington State Department of Ecology (DOE) and local governments authority to regulate water uses in order to protect the shoreline environment. The federal Coastal Zone Management Act echoes this policy and mandates federal-state cooperation in the development and protection of the coastal zone. Although the U.S. Coast Guard traditionally regulates vessel traffic in Puget Sound pursuant to Title I of the Ports and Waterways Safety Act, the …
A Study In Double Standards, Discipline, And The Disabled Student, Anne Proffitt Dupre
A Study In Double Standards, Discipline, And The Disabled Student, Anne Proffitt Dupre
Washington Law Review
School violence and other school discipline issues erode trust and confidence in our public schools and inhibit students from obtaining the education necessary to participate meaningfully in our nation's democratic and political institutions. This Article examines an issue of school law that appears almost insoluble-what one judge has called the "exquisitely difficult" issue of school discipline and the disabled student. The issue is governed by the Individuals with Disabilities Education Act (IDEA, enacted in 1975), which imposes significant constraints on school authorities who wish to discipline disruptive or violent disabled students. School officials have stated that IDEA left them powerless …
Appearance Matters: A Proposal To Prohibit Appearance Discrimination In Employment, Elizabeth M. Adamitis
Appearance Matters: A Proposal To Prohibit Appearance Discrimination In Employment, Elizabeth M. Adamitis
Washington Law Review
The consideration of appearance in employment decisionmaking context is prevalent and widely accepted. Nonetheless, statutory protection against such discrimination remains limited. Federal protection applies only to claims related to already-protected categories of discrimination, including disability, race, color, religion, sex, national origin, and age. Only one state and a small number of cities and counties explicitly prohibit appearance discrimination in employment. This Comment argues that consideration of appearance in employment decisions is not justified, rational, or beneficial to society unless a bona fide occupational qualification or reasonable business purpose exists. States should adopt statutory protection for appearance to.protect otherwise qualified applicants …
The Doctrine Of Piercing The Veil In An Era Of Multiple Limited Liability Entities: An Opportunity To Codify The Test For Waiving Owners' Limited-Liability Protection, John H. Matheson, Raymond B. Eby
The Doctrine Of Piercing The Veil In An Era Of Multiple Limited Liability Entities: An Opportunity To Codify The Test For Waiving Owners' Limited-Liability Protection, John H. Matheson, Raymond B. Eby
Washington Law Review
The use of the corporate form of business organization has always provided a firm's owners/shareholders with a presumptive shield from personal liability for the debts of the business. Case-by-case exceptions to this limited-liability shield have developed in each state under the general rubric of "piercing the veil." Courts and commentators alike have noted the vagueness of the piercing analysis and have questioned the appropriateness of some of the factors employed in that analysis. In addition, new forms of business entities, such as limited liability companies and limited liability partnerships, have been legislatively created over the past several decades, raising the …
All Together Now: Legal Responses To The Introduction Of Aquatic Nuisance Species In Washington Through Ballast Water, Jason R. Hamilton
All Together Now: Legal Responses To The Introduction Of Aquatic Nuisance Species In Washington Through Ballast Water, Jason R. Hamilton
Washington Law Review
Aquatic nuisance species (ANS) are a substantial threat to the global environment, causing harm to ecosystems and costing U.S. industry billions of dollars per year. To combat ANS, legal regimes are being established on the international, federal, and state levels. In some western states, advocates have proposed legislation that is more stringent than the international and federal legal regimes' voluntary ballast-water-exchange regulations. This Comment argues that Washington and the United States should remain in conformity with the international legal regime and should not enact regulations calling for mandatory ballast water-exchange at this time. Instead, the U.S. Coast Guard should strengthen …
In Rem Jurisdiction In Cyberspace, Thomas R. Lee
In Rem Jurisdiction In Cyberspace, Thomas R. Lee
Washington Law Review
"Cyberpirates" incorporating variations on famous trademarks in Internet domain names often attempt to insulate themselves from service of process by providing false and incomplete information in registration materials. Holders of prominent trademarks are often left without an effective remedy because of the logistical difficulty of identifying cyberpirates and personally serving a multitude of complaints in far-flung jurisdictions. This Article examines a potential solution to the problem, whereby the trademark holder files an in rem action against the Internet domain names themselves on the theory that domain names incorporating their famous trademarks violate the Lanham Act and are subject to cancellation …