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Articles 1 - 30 of 91
Full-Text Articles in Law
Extending Winters To Water Quality: Allowing Groundwater For Hatcheries, Amy Choyce Allison
Extending Winters To Water Quality: Allowing Groundwater For Hatcheries, Amy Choyce Allison
Washington Law Review
The Winters Doctrine of federally reserved water rights applies to groundwater and water quality. Because most Indian tribes would have no water rights under state law, the reserved water rights doctrine, known as the Winters Doctrine, emerged to establish a federal right to water on Indian reservations sufficient to fulfill the purposes of the reservation. The reserved water rights doctrine originated in Winters v. United States, which was preceded by two cases upholding the federal government's right to reserve certain water rights. Winters rested on one of the Canons of Construction for Indian treaties that require agreements involving Indians …
Squeezing The Juice® Out Of The Washington Redskins®: Intellectual Property Rights In "Scandalous" And "Disparaging" Trademarks After Harjo V. Pro-Football Inc., Cameron Smith
Washington Law Review
In Harjo v. Pro-Football Inc., the Trademark Trial and Appeal Board cancelled the federally registered trademarks THE WASHINGTON REDSKINS, REDSKINS, and REDSKINETIES after finding them to be disparaging matter under section 2(a) of the Lanham Act. Pro-Football has appealed the Board's decision to the U.S. District Court for the District of Columbia. This Note argues that Harjo's adoption of the "substantial composite" standard for analyzing disparaging trademarks potentially ignores the majority of the implicated group members' viewpoints and promotes section 2(a) trademark cancellations. In addition, the liberal standing requirements for opposition and cancellation proceedings combined with Harlo's disparagement doctrine …
The Attibution Right In The United States: Caught In The Crossfire Between Copyright And Section 43(A), Roberta Rosenthal Kwall
The Attibution Right In The United States: Caught In The Crossfire Between Copyright And Section 43(A), Roberta Rosenthal Kwall
Washington Law Review
The human impulse for attribution symbolizes the linkage between an author and her creative work. In many countries, authors are afforded a right of attribution as part of a broader doctrine known as moral rights. The United States, however, does not adequately protect moral rights. This Article focuses exclusively on the right of attribution as one component of the moral rights doctrine. Initially, it examines the connection between copyright law and the right of attribution and establishes the inadequacy of the current copyright law as a means of safeguarding the right of attribution. Next, it addresses why section 43(a) of …
On Apology And Consilience, Erin Ann O'Hara, Douglas Yarn
On Apology And Consilience, Erin Ann O'Hara, Douglas Yarn
Washington Law Review
This Article joins the current debate about the proper relationship between apology and the law. Several states are considering legislation designed to shield apologies from the courtroom, and mediators are increasing their focus on the importance of apologies. The article develops an evolutionary economic analysis of apology that combines the tools of economics, game theory, and biology to more fully understand its role in dispute resolution. When the analysis is applied to the uses of apology before and at trial, a more sophisticated understanding of the relationship between apology and the law emerges.
The Socio-Legal Acceptance Of New Technologies: A Close Look At Artificial Insemination, Gaia Bernstein
The Socio-Legal Acceptance Of New Technologies: A Close Look At Artificial Insemination, Gaia Bernstein
Washington Law Review
Heated debates often surround the introduction of an important new technology into society, as exemplified by current controversies surrounding human cloning and privacy protection on the Internet. Underlying these controversies are disruptions to central socio-legal values caused by these new technologies. Whether new technologies will eventually be accepted by society is often contingent on the reaction of the legal system. This mandates the formulation of a conceptual framework for understanding and structuring the way the law should react in cases surrounding the adoption of new technologies. By using the case study of artificial insemination this Article develops the tools for …
Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest
Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest
Washington Law Review
In Hazelwood School District v. Kuhimeier, the U.S. Supreme Court held that public school administrators can restrict expression in school-sponsored forums in a manner reasonably related to legitimate pedagogical concerns. Regulating First Amendment rights in any public forum usually requires that no point of view be suppressed in favor of its counterpoint, but the Hazelwood Court omitted the viewpoint-neutrality requirement from its holding. While the Sixth, Ninth and Eleventh Circuits continue to require viewpoint-neutral regulation of school-sponsored speech, the First and Third Circuits interpret Hazelwood as abrogating the viewpoint-neutrality requirement in school-sponsored forums. This Comment argues in favor of …
Political Apportioning Is Not A Zero-Sum Game: The Constitutional Necessity Of Apportioning Districts To Be Equal In Terms Of Both Total Population And Citizen Voter-Age Population, Timothy Mark Mitrovich
Political Apportioning Is Not A Zero-Sum Game: The Constitutional Necessity Of Apportioning Districts To Be Equal In Terms Of Both Total Population And Citizen Voter-Age Population, Timothy Mark Mitrovich
Washington Law Review
After each census, state legislatures must redraw voting districts for state and local elections. Each state legislature must perform this redistricting in a way that protects two important citizen rights. First, each citizen's vote must carry equal weight. Second, each citizen must have equal access to his or her representative. To this end, the U.S. Supreme Court has held that all state and local electoral apportionments must result in districts with equal populations. In Reynolds v. Sims, the Court held that the Fourteenth Amendment requires all state and local electoral apportionments to result in districts with equal populations. However, …
Pennies From Heaven—Why Washington Legal Foundation V. Legal Foundation Of Washington Violates The U.S. Constitution, Kristi L. Darnell
Pennies From Heaven—Why Washington Legal Foundation V. Legal Foundation Of Washington Violates The U.S. Constitution, Kristi L. Darnell
Washington Law Review
In Washington Legal Foundation v. Legal Foundation of Washington, the Ninth Circuit Court of Appeals held that Washington's Interest on Lawyers' Trust Account (IOLTA) program did not perpetuate a "taking without just compensation" in violation of the Fifth Amendment. Even though the court acknowledged that IOLTA-generated interest was client property, the first element necessary to establish a taking, it reasoned that the appropriate subsequent analysis for this problem was the ad hoc test. Applying the ad hoc test to the IOLTA program, the court concluded that the requisite unconstitutional elements were absent. This Note argues that the Ninth Circuit …
Law Reviews And Academic Debate, Erik M. Jensen
Law Reviews And Academic Debate, Erik M. Jensen
Washington Law Review
This essay makes a simple point: When a law review publishes an article, the editors should be willing both to publish responses to that article and to give the author a chance to reply to critics. This shouldn't be a controversial principle, but, for far too many reviews today, it's not standard procedure.
Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley
Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley
Washington Law Review
The Individuals with Disabilities Education Act (IDEA) requires school districts to educate all students receiving special education in the "least restrictive environment" appropriate for each student's needs. This provision reflects Congress' preference that children with disabilities be educated alongside their non-disabled peers to the maximum extent possible. The U.S. Supreme Court has never determined how to test whether a school district has complied with this provision, so the federal circuits have developed several different tests. However, these circuit tests all arose prior to the most recent 1997 Amendments to the IDEA. This Comment explores the development and subsequent application of …
Freedom's Associations, Jason Mazzone
Freedom's Associations, Jason Mazzone
Washington Law Review
This Article offers a new approach to the protection of associations under the Constitution. Although the modem Supreme Court's doctrine of freedom of association is based on expression, in the early Republic associations were understood not in terms of free speech, but in terms of freedom of assembly and popular sovereignty. On this account, associations are constitutionally significant because they allow for self-government. Popular sovereignty also offers a more useful basis for understanding freedom of association today. This Article therefore provides tools for assessing the proper scope of constitutional protections for associations once they are understood in terms of popular …
Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing
Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing
Washington Law Review
The Americans with Disabilities Act (ADA) creates and protects employment opportunities for disabled persons by prohibiting adverse employment actions in the form of disparate treatment and disparate impact. Additionally, subparts (A) and (B) of § 12112(b)(5) of the ADA place distinct duties on employers to accommodate disabled persons, protecting, respectively, existing and future employment opportunities. Because the ADA protects both existing and future opportunities, the duty to accommodate may be breached in two distinct manners. When a plaintiff alleges failure to accommodate, a court must determine which section of the ADA applies and select an appropriate analytical framework for the …
Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn
Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn
Washington Law Review
Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …
Racketeering, Rico And The Revenue Rule In Attorney General Of Canada V. R.J. Reynolds: Civil Rico Claims For Foreign Tax Law Violations, Elizabeth J. Farnam
Racketeering, Rico And The Revenue Rule In Attorney General Of Canada V. R.J. Reynolds: Civil Rico Claims For Foreign Tax Law Violations, Elizabeth J. Farnam
Washington Law Review
When Congress passed the Racketeer Influenced Corrupt Organizations Act (RICO), it created a civil cause of action for any entity, including a foreign government, to recover for injury caused by a defendant's pattern of racketeering activity. However, Congress did not expressly indicate how the revenue rule, a conflict of laws doctrine that allows a court to decline to enforce a foreign government's tax claim or judgment, would relate to civil RICO claims. In Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., the United States Court of Appeals for the Second Circuit held that the revenue rule barred …
Keffeler V. Department Of Social And Health Services: How The Supreme Court Of Washington Mistook Caring For Children As Robbing Them Blind, Tobias J. Kammer
Keffeler V. Department Of Social And Health Services: How The Supreme Court Of Washington Mistook Caring For Children As Robbing Them Blind, Tobias J. Kammer
Washington Law Review
Social Security benefits aid in the basic care of beneficiaries. Washington's Department of Social and Health Services (DSHS) used benefits toward this end until Keffeler v. Department of Social and Health Services. In Keffeler, the Supreme Court of Washington ruled that DSHS, even when acting as representative payee, could not use a foster child's Social Security benefits to pay for his or her current maintenance. The court held that DSHS's use of Social Security benefits to pay for the current maintenance of foster children violated 42 U.S.C. § 407 of the Social Security Act, which protects Social Security …
Reverse Presumptions: Guillen V. Pierce County Disregards Reasonable Constitutional Interpretations Of 23 U.S.C. § 409, Megan Walseth
Reverse Presumptions: Guillen V. Pierce County Disregards Reasonable Constitutional Interpretations Of 23 U.S.C. § 409, Megan Walseth
Washington Law Review
To prove that dangerous roadways caused their traffic accidents, plaintiffs often seek discovery of highway information from state and local governments. Title 23 U.S.C. § 409 bars discovery of some of that information; it creates an evidentiary privilege for materials and data collected for certain federal highway safety funding programs. For example, state and local governments receiving funds through the federal hazard elimination program codified at 23 U.S.C. § 152 must maintain an engineering survey of all state public roads. Section 409, in turn, makes certain data and materials compiled or collected for § 152 exempt from discovery and inadmissible …
How Wide Should The Gate Of "Technology" Be? Patentability Of Business Methods In China, Joy Y. Xiang
How Wide Should The Gate Of "Technology" Be? Patentability Of Business Methods In China, Joy Y. Xiang
Washington International Law Journal
China regards business methods to be a form of mental activity, and consequently excludes them from patent protection. In recent years, along with the proliferation of computer, telecommunication, and Internet technologies, the line between business methods and technology has blurred. As a result, other patent systems, such as U.S. patent law, have modified or are re-evaluating their patent treatment of business methods. The Chinese patent system is designed to promote the progress of science and technology. Business methods having no technical characters are not technological art. It would thus be overly inclusive to regard every business method as "technology" and …
Ethical And Legal Issues In Singapore Biomedical Research, Taiwo A. Oriola
Ethical And Legal Issues In Singapore Biomedical Research, Taiwo A. Oriola
Washington International Law Journal
In 2000, Singapore established the national "Bioethics Advisory Committee" to examine the ethical, moral, social, and legal implications of life sciences and biotechnology. The Committee will examine numerous topics, including genetic discrimination, cloning, and stem cell research. The Committee is expected to release its frast set of recommendations concerning stem cell research in the first half of 2002. This paper proposes that leveraging Singapore into a world-class biomedical research center will entail synchronizing the relevant areas of its legal ethics infrastructure and culture with that of the major players in the global biotechnology industry. Conversely, adhering to prevailing local ethical …
The Legal Development Of Taiwan In The 20th Century: Toward A Liberal And Democratic Country, Tay-Sheng Wang
The Legal Development Of Taiwan In The 20th Century: Toward A Liberal And Democratic Country, Tay-Sheng Wang
Washington International Law Journal
This article was originally presented as The Development of Taiwan's Legal Systems: Towards a Western-style Law, CONFERENCE ON TAIWAN IN THE 20TH CENTURY: A RETROSPECTIVE VIEW, in THE CHINA QUARTERLY AND THE GOVERNMENT INFORMATION OFFICE, R.O.C., (Taipei, Dec. 14-15, 1999). When I wrote that piece, no one could imagine that the Council of Grand Justices would find the newly-amended constitutional provisions unconstitutional, that the National Assembly would be virtually abolished, and that the opposition party would win the presidential election for the first time in Taiwan's history. This revised version of course has taken these crucial events into account. …
Indonesia's 1999 Political Laws: The Right Of Association In Aceh And Papua, Amber Dufseth
Indonesia's 1999 Political Laws: The Right Of Association In Aceh And Papua, Amber Dufseth
Washington International Law Journal
Post-Suharto Indonesia has taken steps to liberalize and codify the right of political association through a package of political laws passed by the House of Representatives (Dewan Perwakilan Rakyat or "DPR") in 1999. International pressure and Indonesian mass demonstrations calling for political reform provided the impetus for the passage of the laws. Since this legal reform, the number of registered political parties in Indonesia has jumped from three to over one hundred. Moreover, the laws provided a legal framework for the 1999 general elections, which were widely recognized as free and fair. The initiatives, however, have had limited effect …
The Future Of Municipal Fisheries In The Philippines: Does The Philippine Fisheries Code Do Enough?, Devon Shannon
The Future Of Municipal Fisheries In The Philippines: Does The Philippine Fisheries Code Do Enough?, Devon Shannon
Washington International Law Journal
The allocation of fishery resources is a critical concern for the Philippines municipal fishing sector where the global problem of overfishing has taken its toll on near-shore aquatic life. The dependency of coastal Filipino communities on fishery resources for nutrition and livelihood necessitates an analysis of the 1998 Philippine Fisheries Code's ("PFC's") ability to facilitate effective marine resource allocation at the municipal level. A comparison of international instruments addressing fishery resource management with the PFC reflects a clear intent on the part of the Code's drafters to emulate accepted international standards. In some areas, however, the PFC's ambiguous language hinders …
Durable Consent And A Strong Transitional Peacekeeping Plan: The Successes Of Untaet In Light Of The Lessons Learned In Cambodia, Dianne M. Criswell
Durable Consent And A Strong Transitional Peacekeeping Plan: The Successes Of Untaet In Light Of The Lessons Learned In Cambodia, Dianne M. Criswell
Washington International Law Journal
In 1999, East Timor voted for independence from Indonesia. That same year the United Nations Security Council created the United Nations Transitional Authority in East Timor ("UNTAET") to help East Timor transition to democracy, self-governance, and sustainable development. Seven years earlier, the United Nations launched a similar mission in Cambodia called the United Nations Transitional Authority in Cambodia ("UNTAC"). There are many similarities between East Timor and Cambodia, and both UNTAET and UNTAC are second-generation United Nations peacekeeping missions. UNTAC and UNTAET had similar mandates, including security, civil administration, and elections. UNTAC encountered opposition from the Cambodian parties, and consent …
Evolution Of Land Reform In Russia: The 2001 Land Code And Its Impact On The Commercial Real Estate Market And Direct Foreign Investment, Dana Tumenova
Washington International Law Journal
Russia unambiguously established private land ownership when it adopted the 2001 Land Code, which, although limited to urban and commercial land, clarifies the concept of land ownership in general and allows foreign ownership of those lands. The Land Code permits security interests in commercial and industrial land, which should further stimulate Russia's commercial real estate market, an important component of a functioning market economy. Perhaps the greatest strength of the new Land Code is its provision for foreign ownership, which allows foreign investors to conduct business according to the Western standards without being forced to engage in bribery or other …
Returnees From South America: Japan's Model For Legal Multiculturalism?, Claire J. Hur
Returnees From South America: Japan's Model For Legal Multiculturalism?, Claire J. Hur
Washington International Law Journal
In response to Japan's increasing labor shortage, the Japanese government in 1990 enacted an extensive set of amendments to its restrictive Immigration Control and Refugee Recognition Act to allow for a controlled but broader method of regulating legal entry of foreign workers into Japan. Significant among those amendments are the provisions granting long-term resident status to persons of Japanese descent entering from abroad and the provisions offering additional rights to foreign-born spouses and children of Japanese nationals. These provisions are mainly targeted at descendants of Japanese who emigrated to South America ("Nikkeijin"). While most of the existing literature …
Chinese Regulation Of Traditional Chinese Medicine In The Modern World: Can The Chinese Effectively Profit From One Of Their Most Valuable Cultural Resources?, Teresa Schroeder
Chinese Regulation Of Traditional Chinese Medicine In The Modern World: Can The Chinese Effectively Profit From One Of Their Most Valuable Cultural Resources?, Teresa Schroeder
Washington International Law Journal
The global demand for traditional Chinese medicine ("TCM") has exploded in the last thirty years. Demand for TCM products increased both domestically in the People's Republic of China ("PRC") and internationally. However, the stigma of "witch doctoring" associated with TCM remains. Several developed nations have established national and local regulation of TCM practitioners to protect their citizens from dangerous treatments. After almost forty years of virtually unregulated endorsement of TCM, China recently began its own standardization of TCM products and practice. The question must be asked, what inspired such a dramatic and rapid change in Chinese policy? The geyser of …
A Call For Co-Management: Treaty Fishing Allocation In New Zealand And Western Washington, Kristi Stanton
A Call For Co-Management: Treaty Fishing Allocation In New Zealand And Western Washington, Kristi Stanton
Washington International Law Journal
The Maori tribe of New Zealand and the tribes of western Washington are both subject to quota systems as a result of their treaty rights to fish. While New Zealand's quota system was legislatively imposed, western Washington's was judicially imposed. Nevertheless, the two quota systems are quite similar in that both permit approximately half the allowable catch of fish each year to go to the tribes. However, that amount does not adequately represent what the tribes are entitled to based on their treaty rights. Colonization, over-fishing, and resource deterioration have decreased the amount of fish available to the fishing population …
Constitutionalism As A Political Culture, Annen Junji, Lee H. Rousso
Constitutionalism As A Political Culture, Annen Junji, Lee H. Rousso
Washington International Law Journal
Translator's Forward: These are not happy times in Japan. Its economy, at one time the most dynamic on the planet, has been in the dumps for over a decade. The population is both aging and declining. A "lost generation" of young Japanese has come of age amid diminished, and diminishing, expectations. The government, controlled as always by the Liberal Democratic Party ("LDP"), is rigid, bloated, corrupt, and deeply in debt. And there is no real reason to believe that the next decade will bring improvement in any of these areas. Not surprisingly, as Japan's economic juggernaut has faltered, the tone …
Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz
Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz
Washington Law Review
The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was …