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Critical Error, Bryan L. Adamson Sep 2008

Critical Error, Bryan L. Adamson

Bryan L Adamson

Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …


Focus On Batson: Let The Cameras Roll, Mimi Samuel Mar 2008

Focus On Batson: Let The Cameras Roll, Mimi Samuel

Mimi Samuel

While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …


The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane Jan 2008

The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane

Faculty Articles

The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …


Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner Jan 2008

Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner

Faculty Articles

This article traces the Nuremberg trials' influence on human rights litigation in the United States under the Alien Tort Statute, especially in the area of corporate complicity, and argues that the use of the Nuremberg trials as precedent in modern domestic human rights litigation is appropriate.


Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin Jan 2008

Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin

Faculty Articles

This article provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace. The same-actor principle, in its most potent form, provides that where the same decision-maker engages in an alleged adverse employment action within a short period of time of making a positive employment decision, such evidence creates a strong presumption that the decision-maker harbored no unlawful discriminatory animus. The same-actor doctrine was first recognized by the Fourth Circuit in Proud v. Stone, in which the court deemed the nature …


Introduction, Kellye Y. Testy Jan 2008

Introduction, Kellye Y. Testy

Seattle University Law Review

No abstract provided.


Oh, What A Tangled World Wide Web We Weave: An Analysis Of Washington's Computer Spyware Act In A National Context, Laura L. Edwards Jan 2008

Oh, What A Tangled World Wide Web We Weave: An Analysis Of Washington's Computer Spyware Act In A National Context, Laura L. Edwards

Seattle University Law Review

Spyware affects businesses as well as individuals. Spyware can expose a company's confidential information, slow down computers and networks, and destroy data. Employees lose efficiency while waiting for IT staff to fix the various problems caused by spyware, which increases costs. Accordingly, spyware is not just a minor annoyance suffered by individual Internet users; rather, it harms American businesses and the economy as well.


Succeeding In The Candidate Pool: Resources Available For Persons Interested In Becoming A Law School Dean, David A. Brennan Jan 2008

Succeeding In The Candidate Pool: Resources Available For Persons Interested In Becoming A Law School Dean, David A. Brennan

Seattle University Law Review

This presentation covers three areas that fall under my supervision as Deputy Director of the Association of American Law Schools (AALS). First, I will discuss the two Deans Databanks that I administer, which relate directly to increasing diversity among the ranks of law school deans in America: the Women Deans Databank and the Minority Deans Databank. In particular, I will address how these two databanks reflect the core values of the AALS and how the databanks function in the deanship process. Second, I will discuss the Law Deanship Manual, an AALS publication that addresses nearly every aspect of what it …


Selected Commentary, Seattle University Law Review Jan 2008

Selected Commentary, Seattle University Law Review

Seattle University Law Review

First, why become a dean? This is the million-dollar question. It is a critically important question to ask yourself. To adequately answer that question, you must ask some related ones: What are the rewards and challenges of deaning? When is the right time--professionally and personally--for me to be a dean? These are as much personal as professional queries.


Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathon L. Entin Jan 2008

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathon L. Entin

Seattle University Law Review

This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan's celebrated dissenting opinion in Plessy v. Ferguson. The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various …


Drunk In The Serbonian Bog: Intoxicated Drivers' Deaths As Insurance Accidents, Douglas R. Richmond Jan 2008

Drunk In The Serbonian Bog: Intoxicated Drivers' Deaths As Insurance Accidents, Douglas R. Richmond

Seattle University Law Review

Part II of this Article briefly sketches the overall ethical framework under the ABA Model Rules and the ABA Model Code of Professional Responsibility, including the proscription on deceit and misrepresentation in Model Rule 8.4 and the ban on attorney contact with represented adverse parties in Model Rule 4.2. Part Ill describes the jurisdictions that have declined to create status-based exceptions to Model Rule 8.4, and the nationwide uproar created when the Oregon Supreme Court initially refused to permit undercover investigations involving any deception— including investigations by law enforcement personnel. That Part will also trace the subsequent adoption of a …


D&O Insurance: The Tension Between Cooperating With The Insurance Company And Protecting Privileged Information From Third Party Plaintiffs, Lindsay Fisher Jan 2008

D&O Insurance: The Tension Between Cooperating With The Insurance Company And Protecting Privileged Information From Third Party Plaintiffs, Lindsay Fisher

Seattle University Law Review

This comment argues that states should challenge the Real ID under the federalism principles enshrined in the Tenth Amendment, although the Act's driver licensing provisions infringe on both individual and state constitutional rights. A state challenge under the Tenth Amendment is more likely than modern individual rights jurisprudence to succeed in striking down Real ID. Arguing that the federal government impermissibly coerces state action under the Act will better protect both states and individual rights and succeed in having the Act overturned. Part II of this Comment provides a historical context for the enactment of Real ID and describes its …


How To Write, Edit, And Review Persuasive Briefs: Seven Guidelines From One Judge And Two Lawyers, Judge Stephen J. Dwyer, Leonard J. Feldman, Ryan Mcbride Jan 2008

How To Write, Edit, And Review Persuasive Briefs: Seven Guidelines From One Judge And Two Lawyers, Judge Stephen J. Dwyer, Leonard J. Feldman, Ryan Mcbride

Seattle University Law Review

The ability to write and recognize a persuasive brief is important to lawyers throughout their careers. Junior attorneys are often responsible for initially writing a brief. Senior attorneys often review those briefs and either rewrite or edit them (as circumstances require). In-house counsel may then review the briefs once more, providing additional edits and comments and addressing concerns. Wherever you happen to be in your career, it is important to know how to write, rewrite, edit, recognize, and review an effective brief. This Article offers a number of guidelines for crafting such briefs and provides a number of practical pointers …


The Origin Of Article I, Section 7 Of The Washington State Constitution, Associate Chief Justice Charles W. Johnson, Scott P. Beetham Jan 2008

The Origin Of Article I, Section 7 Of The Washington State Constitution, Associate Chief Justice Charles W. Johnson, Scott P. Beetham

Seattle University Law Review

This Article will demonstrate that history does in fact provide guidance to the intention of the framers when they rejected the language of the Fourth Amendment and adopted the unique language of article I, section 7. Contrary to the Ringer court's assertion, federal and state case law, legal academic articles, and newspaper articles from the late nineteenth century and early twentieth century provide a wealth of information from which the rationale behind the framers' decision to choose the specific language in article I, section 7 can be hypothesized.


Solving The Parents Involved Paradox, Lino A. Graglia Jan 2008

Solving The Parents Involved Paradox, Lino A. Graglia

Seattle University Law Review

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of “constitutional law,” the Constitution …


Misuse And Abuse Of Morse V. Frederick By Lower Courts: Sretching The High Court's Ruling Too Far To Censor Student Expression, Clay Calvert Jan 2008

Misuse And Abuse Of Morse V. Frederick By Lower Courts: Sretching The High Court's Ruling Too Far To Censor Student Expression, Clay Calvert

Seattle University Law Review

This Article argues that the Fourth Amendment protects confidential attorney-client communications from unreasonable government intrusion, including unreasonable court orders compelling production of attorney-client communications. The Article begins by focusing on the elements of a claim under the Fourth Amendment. Part II identifies the elements and subsequent sections address each element in the context of attorney-client communications. Part III considers the legitimate expectation of privacy in confidential attorney-client communications. Part IV addresses the search and seizure requirement, explores authority distinguishing between "actual" and "constructive" searches, and concludes that, in addition to searches, court-ordered production of attorney-client communications (a "constructive" search and …


Deception In Undercover Investigations: Conduct-Based Vs. Status-Based Ethical Analysis, Barry R. Temkin Jan 2008

Deception In Undercover Investigations: Conduct-Based Vs. Status-Based Ethical Analysis, Barry R. Temkin

Seattle University Law Review

As part of the public school system, online schools “have a responsibility to provide equal access to [their] educational opportunities[,] and restricting access to these opportunities can be problematic, if not illegal.” Given the rapid growth of online education in Washington, legislators must examine whether online schools that receive public education funding are benefiting the entire public or are benefiting merely a select group of students. Part II of this Comment briefly discusses the history of online schools in Washington, including how they receive funding within Washington's unique statutory and regulatory framework. Part III then examines how online schools discriminate …


Table Of Contents, Seattle University Law Review Jan 2008

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


In Memoriam: Joseph M. Williams, Chris Rideout Jan 2008

In Memoriam: Joseph M. Williams, Chris Rideout

Faculty Articles

Professor Chris Rideout pays tribute to Joseph M. Williams, 1933-2008, Professor Emeritus, University of Chicago and author of Style: Ten Lessons in Clarity and Grace, among other highly influential works. Professor Rideout shows his appreciation for Williams' generous support and many contributions to the world of writing instruction, especially legal writing.


Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout Jan 2008

Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout

Faculty Articles

Professor Chris Rideout has long been interested in persuasion, and for many years he has included theories of persuasion in an advanced legal writing seminar that he teaches. He always asks his students the same question—“what persuades in the law?”—and after looking at different theories of persuasion, they then develop their own theory of legal persuasion. When he first taught the course, he had in mind rhetorical models of persuasion, starting with Aristotle and Cicero and moving toward more contemporary rhetorical work. Very quickly, however, he had to add narrative models of persuasion, plus a second question—“what is it about …


Documenting Gender, Dean Spade Jan 2008

Documenting Gender, Dean Spade

Faculty Articles

This article provides an analysis of gender reclassification policies - policies that determine when an administrative agency will change an individual's gender marker on its records - in three contexts: policies related to placement in gender-segregated facilities, policies related to changing gender marker on ID, and policies related to the state provision of healthcare that is prohibited based on the gender on record for the person seeking care. The article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of …


Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill Jan 2008

Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill

Faculty Articles

Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's process, too, should have been differently conducted EPA should have consulted with tribes from …


Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez Jan 2008

Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez

Faculty Articles

Giving the poor legal title to the lands they occupy extra-legally (informally) has been widely promoted by the World Bank and by best-selling author Hernando de Soto as a means of addressing both poverty and the scarcity of affordable housing in the urban centers of the global South. Using Bogota, Colombia, as a case study, this article interrogates de Soto's claims about the causes of informality and the benefits of formal title. The article concludes that de Soto's analysis is problematic in three distinct respects. First, de Soto exaggerates the benefits of formal title and fails to consider its risks. …


The Challenges Of Representing Detained Non-Citizens In Expedited Removal Proceedings From The Perspective Of The Dickinson School Of Law Immigration Clinic, Won Kidane Jan 2008

The Challenges Of Representing Detained Non-Citizens In Expedited Removal Proceedings From The Perspective Of The Dickinson School Of Law Immigration Clinic, Won Kidane

Faculty Articles

Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages …


Did Harvard Get It Right?, Laurel Oates Jan 2008

Did Harvard Get It Right?, Laurel Oates

Faculty Articles

This article grapples with whether Harvard’s adoption of the casebook method over 150 years ago was correct. It contrasts the reading of judicial decisions for principles with the pedagogy of other disciplines: reading assignments, lectures, and exams that test whether students have learned the information set out in those textbooks and lectures. It details recent research from educational psychologies suggesting that the casebook method is not particularly effective in helping students learn either the law or to how to use the law to solve problems. At the same time, the casebook method may be an extremely effective method of helping …


Leading Change In Legal Education: Good News For Diversity, Antoinette Sedillo Lopez Jan 2008

Leading Change In Legal Education: Good News For Diversity, Antoinette Sedillo Lopez

Seattle University Law Review

Two recent influential books on legal education, Educating Lawyers and Best Practices for Legal Education, come to similar conclusions about the problems with many legal education programs today. Many other suggestions for improvement in legal education programs are also similar. A major point made in both books is the need to train lawyers in their roles and skills as professionals. The books both contemplate a move from the current model of large classes taught through modified Socratic dialogue to a sequenced set of courses and experiences that build on basic legal analytical skill and provide opportunities for real life and …


Recruiting Sexual Minorities And People With Disabilities To Be Dean, Joan W. Howarth Jan 2008

Recruiting Sexual Minorities And People With Disabilities To Be Dean, Joan W. Howarth

Seattle University Law Review

This Essay discusses diversity in deaning as it pertains to two identity categories: members of the lesbian, gay, bisexual, and transgender (LGBT) communities, and people with disabilities. Each identity is itself fluid and contested, containing such enormous variations as to render the category illusive and often obfuscating. People with visible disabilities face fundamentally different issues than people with hidden disabilities, for example. Pairing sexual orientation and disability risks false analogies, and worse.


Deaning For Whom? Means And Ends In Legal Education, Hon. Kristin Booth Glen Jan 2008

Deaning For Whom? Means And Ends In Legal Education, Hon. Kristin Booth Glen

Seattle University Law Review

I was an accidental dean. Law school deanship, or any kind of administration, was something that had never occurred to me. But after almost thirty happy and rewarding years as a constitutional litigator, state trial and appellate judge, and frequent law school professor, my dear friend, W. Haywood Burns, asked me to apply for the deanship at City University of New York School of Law (CUNY). Any request from Haywood was a good enough reason for complying. When, to my surprise, I was selected, I had to confront the more profound question of why I should become a law school …


Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise Jan 2008

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Seattle University Law Review

The full extent of what the Court decided in Grutter and Parents Involved remains in some dispute. What is far more certain is that both cases continue to stir deeply held passions that help frame public and legal debates about the Court and its role in affirmative action and school desegregation disputes. Amid these increasingly raucous debates, this Article expressly side steps the many questions (and controversies) about what the Court decided in those cases and seeks to escape from the frequently politically charged and volatile context of governmental uses of race. This Article instead focuses on how the Court …


The Golden Cage: How Immigration Law Turns Foreign Women Into Involuntary Housewives, Magdalena Bragun Jan 2008

The Golden Cage: How Immigration Law Turns Foreign Women Into Involuntary Housewives, Magdalena Bragun

Seattle University Law Review

This Comment begins with a presentation of the general principles of immigration law, introducing the reader to concepts such as immigrant and nonimmigrant status, derivative status, and adjustment of status. Part III offers a more detailed presentation of the H status, emphasizing H-1B classification and describing specific regulations that are pertinent to the subsequent discussion of the spousal employment authorization problem. Part IV presents five arguments why spouses of foreign professionals should be allowed to work, considering issues such as spousal dependency, equal treatment, the competitiveness of the United States in the global search for talent, and tax benefits.