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Articles 1 - 30 of 73
Full-Text Articles in Law
The Religious Land Use And Institutionalized Persons Act: An Analysis Under The Commerce Clause, Evan M. Shapior
The Religious Land Use And Institutionalized Persons Act: An Analysis Under The Commerce Clause, Evan M. Shapior
Washington Law Review
Congress based the Religious Land Use and Institutionalized Persons Act (RLUIPA) on accumulated evidence suggesting that the land use decisions of local governments unfairly burden religious uses. The RLUIPA is narrower in scope than two previous statutes aimed at protecting religious liberty. The United States Supreme Court held the first of these religious liberty statutes unconstitutional, and Congress failed to enact the other. This Comment examines the constitutionality of the RLUIPA under the Commerce Clause and argues that Congress exceeded its Commerce Clause authority because (1) land use regulation does not constitute "economic activity" as defined by the United States …
Punitive Damages, Explanatory Verdicts, And The Hard Look, Richard W. Murphy
Punitive Damages, Explanatory Verdicts, And The Hard Look, Richard W. Murphy
Washington Law Review
Juries in most American jurisdictions can inflict punitive damages awards against tortfeasors who have committed especially blameworthy torts. Sometimes their awards are startlingly large-multi-billion dollar awards have become increasingly frequent. Nonetheless, juries are generally under no obligation to explain their use of this vast power—a punitive damages verdict typically takes the form of an unexplained number. Courts can and should change this practice. Under Federal Rule of Civil Procedure 49(b) and analogous state rules, courts could require juries to return "explanatory verdicts" that set forth the bases for their punitive damages awards. Several advantages would flow from adopting this simple …
Festo'S Effect On After-Arising Technology And The Doctrine Of Equivalents, Anthony H. Azure
Festo'S Effect On After-Arising Technology And The Doctrine Of Equivalents, Anthony H. Azure
Washington Law Review
In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., the Federal Circuit adopted a strict approach to prosecution history estoppel and thereby limited the availability of the doctrine of equivalents to patentees suing for infringement by after-arising technology. The court held that when a narrowing claim amendment creates prosecution history estoppel, the amended claim element maintains no range of equivalents and therefore the patentee is completely barred from applying the doctrine of equivalents. The court rejected the flexible approach, which allows a scope of equivalents even after a narrowing claim amendment. This Note argues that the Supreme Court should …
The Asymmetry Of State Sovereign Immunity, Richard H. Seamon
The Asymmetry Of State Sovereign Immunity, Richard H. Seamon
Washington Law Review
This Article discusses whether a State has sovereign immunity from claims for just compensation. The Article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the Article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide a means of paying just …
Holding Tortfeasors Accountable: Apportionment Of Enhanced Injuries Under Washington's Comparative Fault Scheme, Ryan P. Harkins
Holding Tortfeasors Accountable: Apportionment Of Enhanced Injuries Under Washington's Comparative Fault Scheme, Ryan P. Harkins
Washington Law Review
The enhanced-injury doctrine imposes a negligence-based duty to reasonably minimize the foreseeable risk of injury enhancement in the event of primary accidents, regardless of their cause. When apportioning responsibility for enhanced injuries under principles of comparative fault, a majority of courts outside of Washington use a plaintiffs fault in causing the primary accident to reduce recovery for enhanced injuries. A minority of courts, however, rule that because the enhanced-injury doctrine presupposes the occurrence of primary accidents, primary fault is legally irrelevant to apportionment of enhanced injuries. Washington courts have not addressed this issue. This Comment argues that Washington courts should …
Fire Sale? The Admissibility Of Evidence Of Environmental Contamination To Determine Just Compensation In Washington Eminent Domain Proceedings, Paul W. Moomaw
Fire Sale? The Admissibility Of Evidence Of Environmental Contamination To Determine Just Compensation In Washington Eminent Domain Proceedings, Paul W. Moomaw
Washington Law Review
Jurisdictions across the United States are split on the issue of whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. Jurisdictions that admit this evidence reason that environmental contamination is a property characteristic that necessarily affects the value of the property. Those that exclude the evidence cite procedural due process concerns and the risk of extra liability for the landowner. Washington's Model Toxics Control Act (MTCA) establishes a system of assigning liability and recovering cleanup costs for environmental contamination. No Washington court has addressed whether evidence of environmental contamination should be admissible …
E-Proxies For Sale? Corporate Vote-Buying In The Internet Age, Douglas R. Cole
E-Proxies For Sale? Corporate Vote-Buying In The Internet Age, Douglas R. Cole
Washington Law Review
Advances in electronic communications technology promise to invigorate shareholder voting as a viable tool for corporate governance, for example by decreasing the cost, and thereby increasing the frequency and effectiveness, of proxy fights. Increased use of shareholder voting, though, forces renewed focus on issues related to the shareholder voting process. One such issue is vote-buying. Traditionally, courts have treated vote-buying in the corporate context as per se illegal. More recently, however, courts have relaxed their attitude toward such transactions, a move generally applauded by commentators. This article argues that the newfound judicial acceptance of vote-buying is problematic, at least for …
Echazabal V. Chevron: A Direct Threat To Employers In The Ninth Circuit, Deborah Leigh Bender
Echazabal V. Chevron: A Direct Threat To Employers In The Ninth Circuit, Deborah Leigh Bender
Washington Law Review
Although Congress enacted the Americans with Disabilities Act (ADA) in part to protect disabled individuals from paternalism, the ADA permits employers to adopt a requirement that individuals not pose a direct threat to others in the workplace. The Equal Employment Opportunity Commission (EEOC) has determined that this direct threat defense also protects an employer who discharges or refuses to hire individuals who pose a direct threat to their own health or safety in the workplace. In Echazabal v. Chevron, the Ninth Circuit struck down the EEOC interpretation of direct threat on the ground that it was paternalistic and inconsistent …
Can Students Sue When Schools Don't Make The Grade? The Washington Assessment Of Student Learning And Educational Malpractice, Rebecca R. Glasgow
Can Students Sue When Schools Don't Make The Grade? The Washington Assessment Of Student Learning And Educational Malpractice, Rebecca R. Glasgow
Washington Law Review
Washington's Academic Achievement and Accountability Statute (AAA Statute) creates a statewide system of school accountability. It also requires that all students pass the tenth-grade level of the Washington Assessment of Student Learning standardized test (WASL) to receive a diploma. Unfortunately, when this graduation requirement takes effect in 2008, many students will not receive diplomas because they will be unable to pass the WASL before graduation. Some of these students will have met all local graduation requirements, so the only graduation requirement they will not be able to meet will be the statewide requirement that they pass the WASL. Their WASL …
Closing A Discrimination Loophole: Using Title Vii's Anti-Retaliation Provision To Prevent Employers From Requiring Unlawful Arbitration Agreements As Conditions Of Continued Employment, Sidney Charlotte Reynolds
Closing A Discrimination Loophole: Using Title Vii's Anti-Retaliation Provision To Prevent Employers From Requiring Unlawful Arbitration Agreements As Conditions Of Continued Employment, Sidney Charlotte Reynolds
Washington Law Review
Courts have long viewed mandatory arbitration agreements (MAAs) as contract provisions that employees may accept or decline based on the common law doctrine of employment at-will. However, employees may see such MAAs as attempts to curtail Title VII rights and may refuse to sign them. Title VII prohibits employers from retaliating against employees who oppose discriminatory employment practices. A legal loophole has developed where some employers seek explicitly or implicitly to exempt themselves from Title VII's provisions by drafting MAAs that eliminate statutory rights and remedies from the arbitration process or deter employees from filing discrimination claims altogether. The U.S. …
The Declaration Of Independence: A 225th Anniversary Re-Interpretation, Carlton F.W. Larson
The Declaration Of Independence: A 225th Anniversary Re-Interpretation, Carlton F.W. Larson
Washington Law Review
The importance of the Declaration of Independence to American law has been obscured by dubious associations with natural rights jurisprudence. Legal scholars have therefore overlooked the numerous ways in which the Declaration is relevant to a host of legal issues. Ample textual and historical evidence demonstrates that the Declaration, not the Articles of Confederation or the Constitution, legally constituted the United States of America as a distinct nation in the world community. The Declaration was not the act of thirteen states declaring their individual independence, but the act of one American people announcing the birth of an American nation. Nor …
In The Litigation Business: Insurance Company Liability For Acts Occurring In The Course Of Litigation Under The Washington Consumer Protection Act, Kasey D. Huebner
In The Litigation Business: Insurance Company Liability For Acts Occurring In The Course Of Litigation Under The Washington Consumer Protection Act, Kasey D. Huebner
Washington Law Review
Insurance companies generally have much greater bargaining power and resources than individual insureds When a claim by an insured against an insurance company fails to settle amicably and is followed by a lawsuit, the insured has few options should the insurance company behave unfairly or deceptively in the course of the litigation. The Washington Consumer Protection Act protects consumers from deceptive and bad faith acts by businesses, including insurance companies Although Washington courts have created a general exception disallowing CPA suits for acts occurring in the course of litigation, Washington case law has not directly or clearly addressed whether this …
Tax Treatments For Distressed Bank Loans: A Comparative Study Of The United States And Japanese Legal Systems, Yo Ota
Washington International Law Journal
A number of commentators in Japan have argued that tax treatments for distressed bank loans seem to be more generous in Japan than in the United States, and that, in contrast to Japan, the United States does not allow any deduction for loan loss reserves. However, such arguments have not been based upon a careful analysis of case law and actual tax authority practices. This Article presents a comparative study of the tax treatments for distressed bank loans in the United States and Japan. It analyzes corporate income tax legislation, administrative practices and case law in the 1980s and 1990s …
Service Of United States Process In Russia Under Rule 4(F) Of The Federal Rules Of Civil Procedure, Tatyana Gidirimski
Service Of United States Process In Russia Under Rule 4(F) Of The Federal Rules Of Civil Procedure, Tatyana Gidirimski
Washington International Law Journal
When a potential Russian defendant is not present and cannot be served within the United States, U.S. litigants may be faced with the necessity of carrying out service of process in Russia. If the suit is brought in a U.S. district court, Rule 4(f) of the Federal Rules of Civil Procedure will govern service of process. Although Rule 4(f) provides a number of options for service of process abroad, only two of these options can be used to serve process in Russia. First, service may be done through a letter of request. In fact, Russian law requires foreign service of …
Implications Of Singapore's Income And Consumption Tax Policies On International E-Commerce Transactions Of Digitized Products, Neal Harold Luna
Implications Of Singapore's Income And Consumption Tax Policies On International E-Commerce Transactions Of Digitized Products, Neal Harold Luna
Washington International Law Journal
The Internet's current architecture allows international e-commerce transactions of digitized goods to go untaxed by the country in which the income was earned or the product consumed. The inability of these countries to tax such transactions will erode their tax bases as e-commerce in digitized products grows relative to other commercial forms. To forestall the erosion of its tax base, Singapore's revenue authority boldly extends its existing consumption and income tax policies to e-commerce. Singapore's proposed e-commerce tax regime is a model from which other countries—both those with similar tax regimes, such as the E.U. member economies, and those that …
The Elusive Exercise Of Jurisdiction Over Air Transportation Between The United States And South Korea, Dana L. Christensen
The Elusive Exercise Of Jurisdiction Over Air Transportation Between The United States And South Korea, Dana L. Christensen
Washington International Law Journal
Contrary to the decision reached by the Court of Appeals for the Second Circuit in Chubb & Son, Inc. v. Asiana Airlines, the federal courts should be permitted to exercise subject matter jurisdiction over the international transportation of goods by air between South Korea and the United States. Applying general principles of treaty interpretation under customary international law confirms that treaty relations under the Warsaw Convention exist between the two countries by way of the United States' adherence to that treaty, and South Korea's adherence to the Hague Protocol. Since federal courts have jurisdiction over cases arising under U.S. …
Demographic Crisis In Japan: Why Japan Might Open Its Doors To Foreign Home Health-Care Aides, Carmel A. Morgan
Demographic Crisis In Japan: Why Japan Might Open Its Doors To Foreign Home Health-Care Aides, Carmel A. Morgan
Washington International Law Journal
Japan is currently facing a two-fold demographic crisis: its birthrate is rapidly falling and its population is rapidly aging. Despite the present recession, Japan is confronting a significant shortage of workers in the health-care field. There may not be enough home health-care aides to meet the needs of all of the elderly who are eligible for visits under Japan's new long-term care insurance program. The Ministry of Justice has recently proposed allowing more foreigners to work in Japan. The proposal encourages the admission of immigrants to work as "home helpers," an occupation that is considered unskilled. This proposal marks a …
Judicial Reform And The State Of Japan's Attorney System: A Discussion Of Attorney Reform Issues And The Future Of The Judiciary, Kohei Nakabō, Yohei Suda
Judicial Reform And The State Of Japan's Attorney System: A Discussion Of Attorney Reform Issues And The Future Of The Judiciary, Kohei Nakabō, Yohei Suda
Washington International Law Journal
Based on the Judicial Reform Council's article "Points at Issue in Judicial Reform," this paper presents basic issues on the current status of the Japanese attorney system and areas to be addressed in judicial reform. [[Translator's Note] This Article formed the basis of Nakabō's report at the twelfth meeting of Judicial Reform Council held on February 8, 2000. It was originally published as the first of a two part paper in SERIES JUDICIAL REFORM I: [LEGAL PROFESSIONAL TRAINING; THE LAW SCHOOL CONCEPT] (2000).]
Phoenix From The Ashes—The 1999 Pacific Salmon Agreement, Sims G. Weymuller
Phoenix From The Ashes—The 1999 Pacific Salmon Agreement, Sims G. Weymuller
Washington International Law Journal
The United States and Canada have found a solution to their century long "salmon war" over how many salmon can be taken by each side's fishing fleets from the once-bountiful Pacific salmon runs. Each country felt entitled to an "equitable" portion of the salmon, but no agreed means existed to calculate the shares. Canada felt that the prodigious U.S. fleet often caught more than its share. Substantial peace first came under the 1985 Pacific Salmon Treaty, but dwindling salmon populations, the expiration of the original management regimes, and flaws in those regimes threatened to doom the 1985 Treaty by the …
The Tender Offer In Korea: An Analytic Comparison Between Korea And The United States, Kwang-Rok Kim
The Tender Offer In Korea: An Analytic Comparison Between Korea And The United States, Kwang-Rok Kim
Washington International Law Journal
Even though the tender offer system in Korea was established in 1976, there were very few tender offer transactions until 1997. However, after Korea's economic crisis in late 1997, the Korean government not only took a series of structural reform measures to improve the securities market system, but also widely opened the financial markets to foreign countries by abolishing or amending restrictions on foreign investment. The 1998 reforms to the Korea Securities Exchange Act included significant changes to tender offer regulations, making hostile takeovers more feasible. Since that time, the tender offer has been used as a tool to acquire …
Japan's New Patent Attorney Law Breaches Barrier Between The "Legal" And "Quasi-Legal" Professions: Integrity Of Japanese Patent Practice At Risk?, Lee Rousso
Washington International Law Journal
In order to increase the quantity of intellectual property related legal services made available to the public, the Japanese Diet enacted a complete revision of Japan's eighty-year-old Patent Attorney Law. Under the terms of the new law, which became effective on January 6, 2001, benrishi (patent attorneys) have authority to greatly expand their range of professional activities. The newly recognized activities encroach upon the statutory monopoly long enjoyed by Japan's bengoshi (attorneys). Furthermore, the new legislation gives the benrishi a professional domain that is inconsistent with the profession's credential requirements. This Comment argues that the revision is likely to have …
The First Amendment Versus The World Trade Organization: Emergency Powers And The Battle In Seattle, Aaron Perrine
The First Amendment Versus The World Trade Organization: Emergency Powers And The Battle In Seattle, Aaron Perrine
Washington Law Review
The 1999 World Trade Organization (WTO) ministerial meeting in Seattle was the target of highly organized, widely supported protest demonstrations. In response to the protests, city officials declared a state of emergency, ordering nighttime curfews and a daytime "no-protest zone" in downtown Seattle. They reasoned that the zone was necessary to protect the rights of WTO delegates and to restore public order. This Comment argues that mass nonviolent protests deserve more First Amendment protection than was afforded to demonstrators in Seattle. Even when violence occurs and public order is threatened, governments must narrowly tailor emergency orders to avoid trampling on …
Attorney-Client Confidentiality And The Assessment Of Claimants Who Allege Posttraumatic Stress Disorder, Robert H. Aronson, Lonnie Rosenwald, Gerald M. Rosen
Attorney-Client Confidentiality And The Assessment Of Claimants Who Allege Posttraumatic Stress Disorder, Robert H. Aronson, Lonnie Rosenwald, Gerald M. Rosen
Washington Law Review
Posttraumatic Stress Disorder (PTSD) was first recognized by the American Psychiatric Association in 1980. A PTSD diagnosis requires an individual or individual's loved ones to have experienced a traumatic event that was a threat to life or physical integrity and caused the individual to react to the incident with a specific number of avoidance, reexperiencing, and hyper-arousal symptoms. Obtaining a PTSD diagnosis can be of great value to a personal-injury plaintiff who claims damages due to a traumatic event. Further, if the traumatic event is unquestioned and the individual reports the classic symptoms, a PTSD diagnosis is relatively easy to …
Conversion And Mergers Of Disparate Business Entities, Robert C. Art
Conversion And Mergers Of Disparate Business Entities, Robert C. Art
Washington Law Review
Legislation permitting a business organized in one form, such as a corporation, to merge with a business of a different form, such as a limited liability company, is relatively recent, but reasonable and beneficial. A logical extension of this legislation is to permit a single business entity to convert its organizational form without involving a second entity. Recognition of these cross-entity transactions flows naturally from the expansion of organizational options in recent years, particularly the introduction of limited liability companies and limited liability partnerships. Conversion and merger of disparate entities are already available in a few states, with varying degrees …
Grandma Got Run Over By The Supreme Court: Suggestions For A Constitutional Nonparental Visitation Statute After Troxel V. Granville, Eric B. Martin
Grandma Got Run Over By The Supreme Court: Suggestions For A Constitutional Nonparental Visitation Statute After Troxel V. Granville, Eric B. Martin
Washington Law Review
Every state in the Union has a statute allowing for court-ordered child visitation by non-parents. Until the summer of 2000, the U.S. Supreme Court had never ruled on the constitutionality of such statutes. When the Court finally tackled Washington's statute in Troxel v. Granville, the Court left the most significant questions unanswered, while casting doubt on the validity of Washington's statute. Prior to Troxel, the Washington Supreme Court had held Washington's nonparental visitation statute facially unconstitutional, finding that the statute violated the Fourteenth Amendment rights of parents. After granting certiorari, the U.S. Supreme Court held Washington's statute unconstitutional …
Kim Ho Ma V. Reno: Cloaking Judicial Activism As Constitutional Avoidance, Matthew E. Hedberg
Kim Ho Ma V. Reno: Cloaking Judicial Activism As Constitutional Avoidance, Matthew E. Hedberg
Washington Law Review
In Kim Ho Ma v. Reno, the Ninth Circuit rewrote the plain language of § 241(a)(6) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to avoid a constitutional defect in the statute. Section 123 1(a)(6) of Title 8 of the U.S. Code, which codifies § 241(a)(6) of the IIRIRA, authorizes the Attorney General to detain criminal aliens, or removable aliens posing a danger to the community or a danger of flight risk, beyond the statutory removal period if they have not been removed from the country. Under the guise of constitutional avoidance, the Ma court …
Dna Typing: Emerging Or Neglected Issues, Edward J. Imwinkelried, D.H. Kaye
Dna Typing: Emerging Or Neglected Issues, Edward J. Imwinkelried, D.H. Kaye
Washington Law Review
DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected. At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic …