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2004

University of Washington School of Law

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Articles 1 - 30 of 87

Full-Text Articles in Law

Putting Flesh On The Bones Of United States V. Winans: Private Party Liability Under Treaties That Reserve Actual Fish For The Tribal Taking, Lindsay Halm Nov 2004

Putting Flesh On The Bones Of United States V. Winans: Private Party Liability Under Treaties That Reserve Actual Fish For The Tribal Taking, Lindsay Halm

Washington Law Review

One hundred years ago, in United States v. Winans, the United States Supreme Court announced that private parties are subject to the rights reserved by Indians under treaty. Accordingly, tribes enforce their treaty fishing rights in federal court to halt private and government actions that threaten to impair their reserved right to take a fair portion of fish from usual and accustomed fishing stations. In addition to injunctive relief, federal courts may award monetary relief to tribes where Congress limits the treaty fishing right. In general, monetary relief is a remedy against any defendant actor who impairs non-fishing treaty-reserved …


Does Delaware's Section 102(B)(7) Protect Reckless Directors From Personal Liability? Only If Delaware Courts Act In Good Faith, Matthew R. Berry Nov 2004

Does Delaware's Section 102(B)(7) Protect Reckless Directors From Personal Liability? Only If Delaware Courts Act In Good Faith, Matthew R. Berry

Washington Law Review

Section 102(b)(7) of the Delaware Corporate Code allows a corporation to amend its certificate of incorporation to exculpate directors from all duty of due care violations. The Delaware General Assembly enacted this law in response to the shrinking pool of qualified directors, which was caused by the Delaware State Supreme Court's decision in Smith v. Van Gorkom that imposed personal liability on directors for gross negligence. Delaware courts have unequivocally stated that section 102(b)(7) protects directors against personal liability arising from gross negligence, but not against liability arising from a lack of good faith. However, Delaware courts have not provided …


Whistling In The Dark? Corporate Fraud, Whistleblowers, And The Implications Of The Sarbanes-Oxley Act For Employment Law, Miriam A. Cherry Nov 2004

Whistling In The Dark? Corporate Fraud, Whistleblowers, And The Implications Of The Sarbanes-Oxley Act For Employment Law, Miriam A. Cherry

Washington Law Review

Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes-Oxley Act has as its major goal the prevention of corporate corruption. This Article analyzes the impact of section 806, the portion of the Sarbanes-Oxlcy Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes-Oxley has on existing employment law. In addition, this Article contributes to the debate over the general effectiveness of the Sarbanes-Oxley Act, a topic of contention among both academics and press commentators. This Article argues that the Act …


Lucky For Life: A More Realistic And Reasonable Estate Tax Valuation For Nontransferable Lottery Winnings, Kyla C.E. Grogan Nov 2004

Lucky For Life: A More Realistic And Reasonable Estate Tax Valuation For Nontransferable Lottery Winnings, Kyla C.E. Grogan

Washington Law Review

When a lottery winner dies after receiving only a few annuity payments from the state, the winner's estate must pay federal estate tax on the balance of the annuity. If the lottery prize is not legally transferable, the winner's estate cannot sell or pledge the right to future payments in order to generate funds to pay the estate tax. The estate tax value of an annuity is generally based on valuation tables that discount the future payments to present value. However, these valuation tables do not control when they produce an unrealistic and unreasonable result. The United States Courts of …


Making Mommies: The Washington State Court Of Appeals Exceeded Its Authority By Creating A Common Law Parentage Action In In Re Parentage Of L.B., Thomas G. Robinson-O'Neill Nov 2004

Making Mommies: The Washington State Court Of Appeals Exceeded Its Authority By Creating A Common Law Parentage Action In In Re Parentage Of L.B., Thomas G. Robinson-O'Neill

Washington Law Review

In In re Parentage of L.B., Division I of the Washington State Court of Appeals created a new common law cause of action that allows a same-sex de facto parent to be declared a legal parent. In the alternative, the court held that a de facto parent has a cause of action under Washington's nonparental visitation statute. This Note argues that the court exceeded its authority in creating a common law cause of action because the Uniform Parentage Act and the statutory scheme preempt the common law. Further, this Note argues that the ability of a de facto parent …


Capital Punishment, Proportionality Review, And Claims Of Fairness (With Lessons From Washington State), Timothy V. Kaufman-Osborn Aug 2004

Capital Punishment, Proportionality Review, And Claims Of Fairness (With Lessons From Washington State), Timothy V. Kaufman-Osborn

Washington Law Review

This Article explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly, following the reinstatement of capital punishment in 1976. Relying chiefly on evidence drawn from Washington State, this Article asks whether the practice of comparative proportionality review has ensured that there is now a rational basis for distinguishing between those who are sentenced to die and those who are not. An analysis of the trial judge reports employed by the Washington State Supreme Court in reviewing death sentences, as well as the method used by the court in …


First Things First: Federal Courts Should Determine The Legal Status Of Lloyd's Of London Syndicate Before Deciding The Syndicate's Citizenship For Diversity Purposes, John M. Brust Aug 2004

First Things First: Federal Courts Should Determine The Legal Status Of Lloyd's Of London Syndicate Before Deciding The Syndicate's Citizenship For Diversity Purposes, John M. Brust

Washington Law Review

Lloyd's of London provides a marketplace where groups of underwriters form syndicates to insure risk. The United States Circuit Courts of Appeals have split on the question of how to determine whether a federal court has diversity jurisdiction over a controversy involving Lloyd's syndicates. In a diversity action, each party must have diverse citizenship from all opposing parties. Circuit courts disagree about which diversity of citizenship test applies to suits involving Lloyd's syndicates. The Second, Third, and Sixth Circuits have applied the real party in interest test. This test looks only to the citizenship of the parties that have a …


Settling Significant Cases, Jeffrey R. Seul Aug 2004

Settling Significant Cases, Jeffrey R. Seul

Washington Law Review

Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which …


When Prisoners Are Weary And Their Religious Exercise Burdened, Rluipa Provides Some Rest For Their Souls, Anne Y. Chiu Aug 2004

When Prisoners Are Weary And Their Religious Exercise Burdened, Rluipa Provides Some Rest For Their Souls, Anne Y. Chiu

Washington Law Review

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) prohibits state and local governments from substantially burdening a prisoner's exercise of religion unless the government can show that its action is the least restrictive means of furthering a compelling governmental interest. Prior to RLUIPA, courts subjected prisoners' claims of violations of their right to exercise their religion to a "rational-relationship" standard. Because RLUIPA ("the Act") places a "strict scrutiny" standard on government actions burdening prisoners' religious exercise, the Act is a legislative accommodation of religion. Under Lemon v. Kurtzman, legislative accommodations violate the Establishment Clause if their …


Uwlaw, Spring 2004, Vol. 52 Jun 2004

Uwlaw, Spring 2004, Vol. 52

Alumni Magazines

No abstract provided.


Russian Floating Nuclear Reactors: Lacunae In Current International Environmental And Maritime Law And The Need For Proactive International Cooperation In The Development Of Sustainable Energy Sources, Douglas John Steding Jun 2004

Russian Floating Nuclear Reactors: Lacunae In Current International Environmental And Maritime Law And The Need For Proactive International Cooperation In The Development Of Sustainable Energy Sources, Douglas John Steding

Washington International Law Journal

During the second half of 2003, Russia announced plans to build barges carrying two nuclear reactors capable of supplying electricity to a town of fifty thousand people. Rapidly developing countries seem particularly interested in this proposal, as these reactors can meet their growing power needs. In addition, these floating nuclear reactors provide an alternative to coal, oil and natural gas, all sources of energy that contribute to global warming. These reactors, however, pose a substantial risk to the environment, particularly in light of Russia's lax environmental policies, and the design of the barges themselves make them susceptible to a wide …


Gay Marriage: Analyzing Legal Strategies For Reform In Hong Kong And The United States, Robin A. Warren Jun 2004

Gay Marriage: Analyzing Legal Strategies For Reform In Hong Kong And The United States, Robin A. Warren

Washington International Law Journal

Like many countries, both the United States and Hong Kong face the question of whether to legalize gay marriage due to social, legal, and political forces within and beyond their borders. The legalization of same-sex marriage in one jurisdiction forces other jurisdictions to decide whether to recognize marriages celebrated there. Comparing the current state of U.S. and Hong Kong law reveals that only a direct challenge to discriminatory marriage laws will successfully effect change. Two U.S. state supreme court decisions provide examples of effective legal arguments in a direct challenge. Conflict of laws analysis for marriage and the public policy …


Cambodia's Wto Accession: A Strenuous But Necessary Step For A Poor Nation Seeking Economic Prosperity, Rebecca Povarchuk Jun 2004

Cambodia's Wto Accession: A Strenuous But Necessary Step For A Poor Nation Seeking Economic Prosperity, Rebecca Povarchuk

Washington International Law Journal

During the 2003 World Trade Organization ("WTO") Ministerial Conference, Cambodia became the first least-developed nation to accede to the WTO through the organization's full working party accession process. Due to domestic, political, and economic pressures to accede, Cambodia agreed to an arduous package of legal and economic reform that have left many, including Cambodian officials, wondering whether the small country is capable of meeting its obligations. Having plunged into the WTO with the belief that accession is its best hope for a prosperous future, Cambodia now faces the challenges of implementation. In arguing against WTO membership for Cambodia, critics condemn …


Digital Age Standard Form Contracts Under Austalian Law: "Wrap" Agreements, Exclusive Jurisdiction, And Binding Arbitration Clauses, John Adams Jun 2004

Digital Age Standard Form Contracts Under Austalian Law: "Wrap" Agreements, Exclusive Jurisdiction, And Binding Arbitration Clauses, John Adams

Washington International Law Journal

Despite the widespread use of end user agreements ("EULAs") within international e-commerce, their enforceability under Australian law has yet to be adjudicated. Legislative reform and judicial clarification of contract standards may be required for Australian courts to validate the methods of standard form contracting used in the digital age. While existing Anglo-Australian nules regarding contract formation may be adequate to enforce EULAs, the doctrine of privity presents an unnecessary and outdated barrier to the enforcement. Accordingly, the Australian legislature should abolish the doctrine of privity. In addition, Australian courts must clarify what type of notice is required for onerous contractual …


No More Waiting For Revolution: Japan Should Take Positive Action To Implement The Convention On The Elimination Of All Forms Of Discrimination Against Women, M. Christina Luera Jun 2004

No More Waiting For Revolution: Japan Should Take Positive Action To Implement The Convention On The Elimination Of All Forms Of Discrimination Against Women, M. Christina Luera

Washington International Law Journal

In 1985, Japan ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), which requires the eradication of all legal, political, social and cultural structures that prevent women from enjoying full equality with men. Under CEDAW, Japan is legally obligated to strive for actual, not just formal, equality between men and women. CEDAW also requires States Parties to take positive action to achieve gender equality. Despite the Japanese government's apparent efforts to comply with CEDAW over the last two decades, gender equality remains a distant reality. On July 8, 2003, the Committee on the …


The Australian National Representative System Of Marine Protected Areas And The Marine Zoning System: A Model For The United States?, Jennifer L. Schorr Jun 2004

The Australian National Representative System Of Marine Protected Areas And The Marine Zoning System: A Model For The United States?, Jennifer L. Schorr

Washington International Law Journal

Marine Protected Areas ("MPAs") are increasingly recognized as a critical component of marine conservation. MPAs are areas of the marine ecosystem set aside for special protection and management in order to conserve biological or cultural resources. MPAs manage the use of marine resources by limiting or controlling activities within the area. Marine reserves, the most restrictive type of MPA, severely limit or forbid all extractive activities. Scientific research has demonstrated that MPAs, especially marine reserves, can have rapid and long-term benefits for biological diversity, lead to recovery of specific species, and may have a "spill over" effect that benefits adjacent …


The Duty To Support An Aged Parent In Singapore, Wing-Cheong Chan Jun 2004

The Duty To Support An Aged Parent In Singapore, Wing-Cheong Chan

Washington International Law Journal

When the legislation to impose a financial obligation on adult children to provide for their aged parents was introduced in Singapore in 1994, it generated heated public debate which polarized the population. Several criticisms of this proposal emerged: it subsumed the Asian value of filial piety in a legalistic, Western framework; it was unnecessary given the small number of parents being neglected by their children; and it was an undesirable intrusion into family life. Nonetheless, the proposal managed to gain enough Parliamentary support to be referred to a Select Committee. Several adjustments to the proposed legislation were made to take …


The Japanese Law Concerning The Special Measures On Humanitarian And Reconstruction Assistance In Iraq: Translator's Introduction, Mika Hayashi Jun 2004

The Japanese Law Concerning The Special Measures On Humanitarian And Reconstruction Assistance In Iraq: Translator's Introduction, Mika Hayashi

Washington International Law Journal

The legal framework concerning Japan's physical contribution to international peace and security through the presence of its Self-Defense Forces abroad underwent ad hoc changes twice since the beginning of the Twenty-First Century. The first change was brought about by the September 11 terrorist attacks in 2001 and the second was the result of the war in Iraq in 2003. In both cases, Japan enacted laws that specifically enabled the Self-Defense Forces to operate abroad: the Anti-Terrorism Special Measures Law and the Law concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq, respectively. The latter and most recent legislation, …


The War On Cyberterror: Why Australia Should Examine The U.S. Approach To Critical Infrastructure Protection, Elizabeth Tutmarc Jun 2004

The War On Cyberterror: Why Australia Should Examine The U.S. Approach To Critical Infrastructure Protection, Elizabeth Tutmarc

Washington International Law Journal

As the global community focuses on detecting and fighting terrorism, defense strategists have identified the vulnerability of certain cybersystems. Traditional methods of defense and warfare, however, often do not apply to new technologies. Thus the cybercommunity is developing new standards for protecting computer resources against terrorist attack. From the perspective of national governments, much attention has been paid to the importance of secure "critical infrastructure." This category of computer-dependent resources includes sectors vital to the smooth and orderly operation of public society, such as transportation, communications, and food production. These sectors are becoming increasingly dependent on computers to function, and …


Oops! The Legal Consequences Of And Solutions To Online Pricing Errors, Benjamin Groebner May 2004

Oops! The Legal Consequences Of And Solutions To Online Pricing Errors, Benjamin Groebner

Washington Journal of Law, Technology & Arts

How can businesses conducting sales over the Internet protect themselves from the inevitability of pricing errors? Unlike the brick and mortar retailers’ ability to catch a pricing error quickly, thousands of orders can be placed with online retailers before they detect the problem. When pricing errors do occur and contracts are formed, merchants are forced to choose between absorbing the resulting financial loss as an investment in goodwill or trying to invalidate the contracts under the doctrine of unilateral mistake. To avoid binding contracts with customers at erroneous prices, online retailers should employ protective methods of contract formation that help …


Protestors Have Fourth Amendment Rights, Too: In Graves V. City Of Coeur D'Alene, The Ninth Circuit Clouds Clearly Established Law Governing Searches, Holly Vance May 2004

Protestors Have Fourth Amendment Rights, Too: In Graves V. City Of Coeur D'Alene, The Ninth Circuit Clouds Clearly Established Law Governing Searches, Holly Vance

Washington Law Review

In Graves v. City of Coeur d'Alene, the United States Court of Appeals for the Ninth Circuit concluded that a police officer should not have arrested a protestor at an Aryan Nations parade when the protestor refused to allow the officer to search his backpack. The court held that the arrest was illegal because the officer had no probable cause to believe the protestor was carrying a weapon. However, the court also held that the arresting officer was entitled to qualified immunity and thus not liable for his violation of the protestor's rights. Qualified immunity is a privilege that …


Sex And The Workplace: "Consenting" Adolescents And A Conflict Of Laws, Jennifer Ann Drobac May 2004

Sex And The Workplace: "Consenting" Adolescents And A Conflict Of Laws, Jennifer Ann Drobac

Washington Law Review

According to the Equal Employment Opportunity Commission, sexual harassment of adolescents at work may constitute a serious, but to date largely undocumented, problem. Courts respond inconsistently to adolescent "consent" in sexual harassment employment cases. This Article reviews state criminal statutory rape law, federal civil law, and tort law to reveal the conflicting legal treatment of adolescent capacity to consent to sex. It highlights conflicts not only between the criminal and civil systems, but also between sister states' laws and laws within states. For example, this Article finds that despite criminal sexual abuse laws, courts permitted employers to use adolescent "consent" …


Foster V. Carson: The Ninth Circuit Misapplies The Capable-Of-Retention-Yet-Evading-Review Exception To The Mootness Doctrine And Lends A Free Hand To Budget-Cutting State Officials, Joshua C. Gaul May 2004

Foster V. Carson: The Ninth Circuit Misapplies The Capable-Of-Retention-Yet-Evading-Review Exception To The Mootness Doctrine And Lends A Free Hand To Budget-Cutting State Officials, Joshua C. Gaul

Washington Law Review

In Foster v. Carson, public defender organizations and indigent defendants sued the chief justice of the Oregon Supreme Court for suspending appointments of indigent defense counsel. Before the parties could fully litigate the case, the chief justice reinstated appointments. Subsequently, the United States Court of Appeals for the Ninth Circuit dismissed the case as moot and held that the exception to the mootness doctrine for cases capable-of-repetition-yet-evading-review did not apply. A case falls under that exception when the party resisting mootness demonstrates that it was not possible to fully litigate the action before it ceased and there is a …


Wild Dreamers: Meditations On The Admissibiity Of Dream Talk, Louise Harmon May 2004

Wild Dreamers: Meditations On The Admissibiity Of Dream Talk, Louise Harmon

Washington Law Review

This article presents a mosaic of interrelated meditations on how judges have dealt with the admissibility of dream talk, interspersed with short digressions on the meaning of dreams from a variety of historical and cultural perspectives. In Part I, I begin with theories about dreams from Aristotle, Hobbes, and others. I then tell the story of O.J. Simpson, wild dreamer extraordinaire, interrupted by a Freudian interlude and a speculation about the theories that the jurors may have silently applied to Simpson's dreams of killing his wife. In Part II, I present three wild dreamers from family court: a husband who …


Private Rap Sheet Or Public Record? Reconciling The Disclosure Of Nonconviction Information Under Washington's Public Disclosure And Criminal Records Privacy Acts, Lynette Meachum May 2004

Private Rap Sheet Or Public Record? Reconciling The Disclosure Of Nonconviction Information Under Washington's Public Disclosure And Criminal Records Privacy Acts, Lynette Meachum

Washington Law Review

Division I of the Washington State Court of Appeals misapplies Washington's Criminal Records Privacy Act (CRPA) in determining whether entire files of police investigative information should be available for public review. The plain text and legislative history of the CRPA indicate that the Washington State Legislature intended the CRPA to apply only to the disclosure of criminal history record information, or the data that appears on a subject's criminal rap sheet. Washington courts should interpret the CRPA narrowly, as an exemption to the broad policy of disclosure established by the state's Public Disclosure Act (PDA). This approach would reconcile the …


Capsized By The Constitution: Can Washington State Ferries Meet Federal Screening Requirements And Still Pass State Constitutional Muster?, David J. Perkins May 2004

Capsized By The Constitution: Can Washington State Ferries Meet Federal Screening Requirements And Still Pass State Constitutional Muster?, David J. Perkins

Washington Law Review

In response to the threat of international terrorism, the United States Coast Guard has issued new regulations requiring every ferry operator to begin screening passengers and vehicles for dangerous items. These new regulations will force Washington State Ferries (WSF), the agency responsible for operating the State's ferry system, to either begin screening passengers and vehicles or face a possible shutdown. Compliance, however, poses problems for WSF because of privacy protections under the Washington State Constitution. Article I, section 7 of the state constitution contains an explicit protection of privacy. This section provides broader protections from warrantless searches by state actors …


When Is A Phone Call Not A Phone Call? Legal Issues Arising From Business Use Of Voip, Paula K. Royalty May 2004

When Is A Phone Call Not A Phone Call? Legal Issues Arising From Business Use Of Voip, Paula K. Royalty

Washington Journal of Law, Technology & Arts

The Voice over Internet Protocol allows telephone calls to be placed over the Internet instead of the Public Switched Telephone Network. VoIP did not exist before 1995. Now market research predicts that by 2007, 90 percent of enterprises with multiple locations will start switching to VoIP, and it will account for 75 percent of all world voice traffic. This article examines current legal developments that impact business use of VoIP, including the increased business records retention requirements of recent federal laws, proposed new federal eavesdropping rules, and an unsuccessful legal challenge by a state public utility commission to regulate VoIP …


Not Child's Play: Compliance With The Children's Online Privacy Protection Rule, Kristin Bryant May 2004

Not Child's Play: Compliance With The Children's Online Privacy Protection Rule, Kristin Bryant

Washington Journal of Law, Technology & Arts

The FTC regulates how Web site operators collect personal information from children based on the requirements of the Children’s Online Privacy Protection Act (COPPA). The Children’s Advertising Review Unit (CARU) of the Council of Better Business Bureaus has developed voluntary guidelines that businesses can use to assist them in achieving compliance with COPPA. Businesses that comply with the guidelines are deemed to be in compliance with COPPA and thus shielded from FTC sanctions. Costs of compliance may be high, so some Internet business models that target children may no longer be viable. Any business that does not target children but …


Can Law Firms Spam?, Kevin Michael May 2004

Can Law Firms Spam?, Kevin Michael

Washington Journal of Law, Technology & Arts

The CAN-SPAM Act of 2003 presents a compliance problem for law firms that issue periodic newsletters to clients or prospective clients. While the Act does not expressly include such newsletters, nor define commercial advertisement in a manner that suggests newsletters will be included, the advisory opinions from state ethics boards suggest that newsletters are advertisements. Arguments can be made that newsletters to current clients are not advertisements. However, given the low cost of compliance with the Act, firms should treat these newsletters as commercial advertisements and adhere to the provisions of the Act.


Justice Beyond Borders: A Comparison Of Australian And U.S. Child-Sex Tourism Laws, Karen D. Breckenridge Apr 2004

Justice Beyond Borders: A Comparison Of Australian And U.S. Child-Sex Tourism Laws, Karen D. Breckenridge

Washington International Law Journal

In 1996, an estimated one million children were sexually exploited in Asia. "Sex tourists" who travel to Asia from developed countries, including Australia and the United States, contribute to the demand for child prostitutes. A decade ago, Australia and the United States passed laws in an attempt to combat child-sex tourism. Over the past decade, the laws of both countries have had limited success. In 2003, the United States enacted the PROTECT Act. The PROTECT Act, nearly identical to Australia's Crimes (Child Sex Tourism) Amendment Act, allows for the prosecution of child-sex tourists and child-sex tour organizers, based on sexual …