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Articles 1 - 30 of 86
Full-Text Articles in Law
Oil Development In Anwr: The Precautionary Principle Is Compatible With The Fish And Wildlife Service's Statutory Mandate, Trisna Tanus
Oil Development In Anwr: The Precautionary Principle Is Compatible With The Fish And Wildlife Service's Statutory Mandate, Trisna Tanus
Washington Journal of Environmental Law & Policy
The potential for oil production in the Arctic National Wildlife Refuge (ANWR) coastal plain, otherwise known as the 1002 Area, is significant, with a current value of $770 billion. Yet, there are considerable knowledge gaps and disagreements over the environmental impacts of oil development in ANWR. The Fish and Wildlife Service (FWS) manages ANWR and is tasked with advancing the refuge’s mission of ecological conservation. Before it can approve oil development in ANWR, the FWS is statutorily required to ensure that oil development is compatible with ANWR’s mission. This Comment argues that the precautionary principle is embedded within the laws …
Legal And Policy Implications Of The Perception Of Property Rights In Catch Shares, Mark Fina, Tyson Kade
Legal And Policy Implications Of The Perception Of Property Rights In Catch Shares, Mark Fina, Tyson Kade
Washington Journal of Environmental Law & Policy
Catch shares are a fishery management strategy under which persons are allocated exclusive access to specific portions of the total allowable catch of a fishery. Proponents of catch share management argue that these programs allow for more efficient management of annual catch limits and mitigate the negative biological and economic impacts associated with other management programs. Because of the exclusivity of their allocations, catch share programs have been characterized by their opponents as privatizing the public fisheries resource and granting catch share holders a property right to fish. However, case law suggests that a court is unlikely to conclude that …
Leopold's Last Talk, Eric T. Freyfogle
Leopold's Last Talk, Eric T. Freyfogle
Washington Journal of Environmental Law & Policy
During the last decade of his life, Aldo Leopold (1887–1948) delivered more than 100 conservation talks to various popular, professional, and student audiences. In them, he set forth plainly the central elements of his conservation thought. By studying the extensive archival records of these talks one sees clearly the core elements of Leopold’s mature thinking, which centered not on specific land-use practices (good or bad), but instead on what he saw as deep flaws in American culture. Leopold’s sharp cultural criticism—more clear in these talks than in his lyrical, muted classic, A Sand County Almanac—called into question not just …
The Overlooked Role Of The National Environmental Policy Act In Protecting The Western Environment: Nepa In The Ninth Circuit, Michael C. Blumm, Keith Mosman
The Overlooked Role Of The National Environmental Policy Act In Protecting The Western Environment: Nepa In The Ninth Circuit, Michael C. Blumm, Keith Mosman
Washington Journal of Environmental Law & Policy
Critics widely disparage the National Environmental Policy Act (NEPA) for being a mere “paper tiger” or bureaucratic red-tape. The U.S. Supreme Court has surely encouraged this perception by treating the statute with consistent hostility, reducing it to a requirement only to follow prescribed administrative procedures but not produce any environmental results. But in the Ninth Circuit, NEPA lives a more important life, since that court has not forgotten NEPA’s essential environmental purpose. This article examines four lines of cases in the Ninth Circuit that may show that NEPA’s future might reflect its conservation purpose. These cases 1) deny NEPA plaintiffs …
Fleeing East From Indian Country: State V. Eriksen And Tribal Inherent Sovereign Authority To Continue Cross-Jurisdictional Fresh Pursuit, Kevin Naud Jr.
Fleeing East From Indian Country: State V. Eriksen And Tribal Inherent Sovereign Authority To Continue Cross-Jurisdictional Fresh Pursuit, Kevin Naud Jr.
Washington Law Review
In State v. Eriksen, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court’s reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute …
The Rise, Decline, And Fall (?) Of Miranda, Yale Kamisar
The Rise, Decline, And Fall (?) Of Miranda, Yale Kamisar
Washington Law Review
No abstract provided.
An Open Courts Checklist: Clarifying Washington's Public Trial And Public Access Jurisprudence, Jeanine Blackett Lutzenhiser
An Open Courts Checklist: Clarifying Washington's Public Trial And Public Access Jurisprudence, Jeanine Blackett Lutzenhiser
Washington Law Review
Fundamental to the American system of justice is the right to a public trial and a general presumption of openness in judicial proceedings. These values are reflected in the First and Sixth Amendments of the United States Constitution and in many state constitutions. Washington is one of a number of states whose constitution (unlike the U.S. Constitution) also explicitly guarantees the open administration of justice. Constitutional dilemmas arise when a party requests the closure of a courtroom or the sealing of documents. These requests force courts to harmonize values of open justice with other compelling interests. U.S. Supreme Court decisions …
Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson
Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson
Washington Law Review
This Article canvasses the jurisdictional rules applicable in American Indian tribal territories—“Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal …
Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff
Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff
Washington Law Review
Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …
Indigenous Peoples And Epistemic Injustice: Science, Ethics, And Human Rights, Rebecca Tsosie
Indigenous Peoples And Epistemic Injustice: Science, Ethics, And Human Rights, Rebecca Tsosie
Washington Law Review
This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly …
Monitored Disclosure: A Way To Avoid Legislative Supremacy In Redistricting Litigation, Mark Tyson
Monitored Disclosure: A Way To Avoid Legislative Supremacy In Redistricting Litigation, Mark Tyson
Washington Law Review
The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about “legislative acts” or having “legislative acts” used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a “legislative act” have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in …
Whose Invention Is It Anyway? Employee Invention-Assignment Agreements And Their Limits, Parker A. Howell
Whose Invention Is It Anyway? Employee Invention-Assignment Agreements And Their Limits, Parker A. Howell
Washington Journal of Law, Technology & Arts
Pre-invention assignment provisions have become important and commonplace facets of employment agreements, supplanting common law rules for invention ownership. Yet statutes in seven states—including California, Washington, and Minnesota—restrict invention assignment. These statutes make agreements unenforceable when a worker invents on his or her own time without use of employer resources and the invention does not relate to the employer’s business or the employee’s work. Employers should be ready to argue why a given invention is not excluded from assignment by statute, although judicial decisions suggest many disputed inventions nonetheless belong to the employer. Statutory arguments notwithstanding, employee-inventors may challenge the …
Get Outta My Face[Book]: The Discoverability Of Social Networking Data And The Passwords Needed To Access Them, Mallory Allen, Aaron Orheim
Get Outta My Face[Book]: The Discoverability Of Social Networking Data And The Passwords Needed To Access Them, Mallory Allen, Aaron Orheim
Washington Journal of Law, Technology & Arts
Under what circumstances can a social network user be compelled to turn over his or her user identification and password in civil litigation? In three recent cases, courts attempted to answer this question with varied results. The New York Supreme Court Appellate Division refused to allow discovery of private Facebook information in McCann v. Harleysville Insurance Co. because the discovery request was not sufficiently tailored to reach discoverable information. Soon thereafter, the same court allowed discovery of similar material in Romano v. Steelcase, Inc. based on the level of publicity of the social networking account. In McMillen v. Hummingbird Speedway, …
Executive Privilege Under Washington's Separation Of Powers Doctrine, Lee Marchisio
Executive Privilege Under Washington's Separation Of Powers Doctrine, Lee Marchisio
Washington Law Review
Since United States v. Nixon, the U.S. Supreme Court has recognized a qualified executive privilege grounded in federal separation of powers. The privilege allows the President to withhold executive branch communications when disclosure would undermine presidential decisionmaking while executing core constitutional duties. Several states have followed the Supreme Court’s lead and adopted an analogous gubernatorial privilege under state constitutional separation of powers. Focusing on Washington State’s well-developed separation of powers doctrine and strong populist history, this Comment argues that the Washington State Supreme Court should recognize a qualified gubernatorial privilege that also respects the state’s long history of citizen …
Googling Jurors To Conduct Voir Dire, J. C. Lundberg
Googling Jurors To Conduct Voir Dire, J. C. Lundberg
Washington Journal of Law, Technology & Arts
During voir dire in Johnson v. McCullough, a medical malpractice case in Missouri, at least one juror failed to answer honestly a question about whether he had been a defendant or plaintiff in a lawsuit. After the verdict was entered, the plaintiff conducted a search on Missouri’s online case database and discovered that one of the jurors had been a defendant in a personal injury suit. In the resulting appeal, the Supreme Court of Missouri held that litigants should conduct a search in this database during voir dire, instead of waiting until after a verdict is entered. Johnson is …
Social Media Policies For Character And Fitness Evaluations, Jessica Belle
Social Media Policies For Character And Fitness Evaluations, Jessica Belle
Washington Journal of Law, Technology & Arts
In 2009, Florida became the first U.S. jurisdiction to articulate a Character and Fitness Evaluation (CFE) policy of examining the social media accounts of bar applicants who had demonstrated a history of questionable conduct such as substance abuse or seeking to violently overthrow the U.S. government. This policy may allow access to otherwise legally inaccessible data, which creates a risk of the bar unlawfully considering information protected by applicants’ constitutional rights. Over the past 60 years, the U.S. Supreme Court has split on whether bar organizations may constitutionally deny bar admission to applicants who refuse to answer certain questions on …
State Default And Synthetic Bankruptcy, Richard M. Hynes
State Default And Synthetic Bankruptcy, Richard M. Hynes
Washington Law Review
An insolvent state does not need bankruptcy if sovereign immunity would protect it from lawsuits and other collection efforts. To the extent that a state is not judgment-proof and needs bankruptcy, we may not need to modify the Federal Bankruptcy Code to allow it to file. First, a substantial share of state spending flows through their municipalities, and these municipalities have substantial obligations of their own. Unlike states, municipalities can file for bankruptcy under current law, and a state could substantially reduce the cost of accomplishing its own fiscal goals by forcing its municipalities to file. Second, states may be …
Selling Advice And Creating Expectations: Why Brokers Should Be Fiduciaries, Arthur B. Laby
Selling Advice And Creating Expectations: Why Brokers Should Be Fiduciaries, Arthur B. Laby
Washington Law Review
Investors face a dizzying array of choices regarding where to invest their funds and increasingly rely on experts for advice. Most advice about securities is provided by investment advisers or broker-dealers, legal categories with little meaning to most people but fraught with consequences. Although advisers and brokers often perform the same function, advisers are subject to a strict fiduciary standard to act in their clients’ best interest while brokers are subject to a less rigorous standard of suitability to ensure that their recommendations are suitable for customers. In 2010, the Dodd-Frank Act authorized the U.S. Securities and Exchange Commission (SEC) …
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Washington Law Review
Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that …
Pressing Washington's Wine Industry Into The Twenty-First Century: Rethinking What It Means To Be A Winery, Rebecca Thompson
Pressing Washington's Wine Industry Into The Twenty-First Century: Rethinking What It Means To Be A Winery, Rebecca Thompson
Washington Law Review
Washington’s wine industry is growing, and the ways in which Washington winemakers craft and sell their product are changing. Traditional “brick and mortar” wineries coexist with so-called “virtual wineries,” which typically purchase grapes from growers and contract with other wineries or custom crush facilities to access winemaking equipment. The virtual winery is an incubator model and contributes to the rich diversity of Washington’s wine industry. Washington’s current winery licensing statute, RCW 66.24.170, does not clearly apply to virtual wineries because it links the concept of a winery with a particular physical location and fails to delineate exactly what types of …
Protecting Child Victims' Rights As Vigorously As Criminal Defendants' When Prosecuting Possession Or Distribution Of Child Pornography, Kiel Willmore
Protecting Child Victims' Rights As Vigorously As Criminal Defendants' When Prosecuting Possession Or Distribution Of Child Pornography, Kiel Willmore
Washington Law Review
Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state’s evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims’ privacy and renewal of their abuse. The Washington State Legislature recently enacted Substitute House Bill 2177 (“H.B. 2177”), which amends the legislative findings …
Technology, Travel Companies & Taxation: Should Expedia Be Required To Collect And Remit State Occupancy Taxes On Profits From Facilitating Hotel Room Rentals?, Kerra J. Melvin
Washington Journal of Law, Technology & Arts
Online travel companies (“OTCs”) like Expedia and Hotels.com facilitate discounted hotel room rates for customers by contracting with hotels at a wholesale rate and then allowing customers to book rooms on their websites at a marked-up rate that is above the wholesale rate but below the market rate. Many states allow cities and counties to assess an occupancy or bed tax upon persons reserving hotel rooms, with the collections typically used to promote state and local tourism. Such statutes generally require the hotel operator to collect and remit the tax. OTCs have traditionally remitted the wholesale rate and the occupancy …
Facebook Firings And Twitter Terminations: The National Labor Relations Act As A Limit On Retaliatory Discharge, Bryan Russell
Facebook Firings And Twitter Terminations: The National Labor Relations Act As A Limit On Retaliatory Discharge, Bryan Russell
Washington Journal of Law, Technology & Arts
In every state except Montana, at-will employment is the default rule, leaving employers free to discharge employees for their use of social media. The National Labor Relations Act’s (NLRA) protection of collective action, however, is emerging as a substantial limitation to at-will terminations. In Hispanics United of Buffalo, the National Labor Relations Board concluded that Facebook posts critical of the non-profit employer were protected as collective action and that the employer’s retaliatory termination of five employees violated Section 8 of the NLRA. To be protected as collective action under the NLRA, an employee’s use of social media must be …
Who Are You? Difficulties In Obtaining Trademark Protection For Domain Names, Luke M. Rona
Who Are You? Difficulties In Obtaining Trademark Protection For Domain Names, Luke M. Rona
Washington Journal of Law, Technology & Arts
Three appellate decisions illustrate the difficulty of acquiring trademark protection for domain names that include a top-level domain (“TLD”), such as “.com.” Courts have characterized these marks as generic or merely descriptive, which carries implications for the party seeking registration: generic marks cannot be protected, while descriptive marks can, assuming they possess a secondary meaning that makes the mark distinctive. Generic and descriptive domain names often indicate the services a company provides, with the addition of the “.com” TLD to indicate online services. One key test of genericness is whether the public identifies the mark with a service generally or …
Finding Safe Harbor: Navigating Washington's New Unfair Competition Law, Daniel Shickich
Finding Safe Harbor: Navigating Washington's New Unfair Competition Law, Daniel Shickich
Washington Journal of Law, Technology & Arts
Under a new law, manufacturers and retailers that sell products in Washington State could face stiff penalties if their products are made using stolen or misappropriated information technology (“stolen IT”). In 2011 the Washington Legislature passed Substitute House Bill 1495, creating a new cause of action that allows private plaintiffs or the state attorney general to seek injunctive relief and damages against manufacturers that use stolen IT in their business operations. The law also creates an additional claim for actual damages of up to $250,000 against third parties who contract with violating manufacturers and sell the products in Washington. Using …
Climate Change And The Columbia River Treaty, Rachael Paschal Osborn
Climate Change And The Columbia River Treaty, Rachael Paschal Osborn
Washington Journal of Environmental Law & Policy
The year 2014 is a key date for the potential re-negotiation of the Columbia River Treaty between the United States and Canada. The Treaty coordinates hydropower operations at 14 mainstem and multiple tributary dams, with the dual goals of maximizing flood control and electrical power generation. In 2024, either party may terminate, with ten years’ notice to the other. Regardless of termination, a key Treaty provision will change, requiring the United States to maximize use of its reservoirs before asking Canada to do the same, leading to deeper drawdowns in Grand Coulee’s Lake Roosevelt and other major reservoirs and potential …
The Flood Control Regime Of The Columbia River Treaty: Before And After 2024, Nigel Bankes
The Flood Control Regime Of The Columbia River Treaty: Before And After 2024, Nigel Bankes
Washington Journal of Environmental Law & Policy
This article examines the flood control rules established by the Columbia River Treaty and Protocol between Canada and the United States before and after 2024. The flood control operations change automatically in 2024. Part I discusses the flooding risks posed by the Columbia and Kootenay Rivers. Part II offers an account of the general international law pertaining to flood protection and in particular the duties that one basin state may owe to another. This section draws on the work of the International Law Commission which informed the adoption of the United Nations Convention on the Non-Navigational Uses of International Watercourses. …
Looking Forward: The Columbia River Treaty, A. Paul Firuz
Looking Forward: The Columbia River Treaty, A. Paul Firuz
Washington Journal of Environmental Law & Policy
Since 1964, the Columbia River Treaty has shaped the joint use of the Columbia River by the United States and Canada. The Treaty will be impervious to change until 2024, but either party may give notice of an intent to alter it as soon as 2014. Since the Treaty’s ratification, changes in United States domestic law have reflected a shift in attitude toward the environment and the Columbia River. These changes have impacted the Columbia River’s governance on the United States side of the border and though domestic law has evolved in response to environmental concerns, the Treaty has remained …
(When) Does A Contract Claim Trump A Takings Claim? Lessons From The Water Wars, David W. Spohr
(When) Does A Contract Claim Trump A Takings Claim? Lessons From The Water Wars, David W. Spohr
Washington Journal of Environmental Law & Policy
As in other river basins, the disparity in the Columbia is growing between ever-expanding water demands and ever-shrinking water availability. Looming near the forefront of decisions on how to manage such waters is the potential liability the government faces if it reduces water distributions to further environmental objectives. While recent cases raise fascinating takings and contract issues, the most interesting issue may be the intersection of the available remedies. Does the contractual relationship between an aggrieved water user and the government preclude a takings claim, even where the contract claim ultimately fails? On one end of the spectrum, courts have …
Gender-Specific Prison Reform: Addressing Human Rights Violations Against Women In Russia's Prisons, Courtney M. Skiles
Gender-Specific Prison Reform: Addressing Human Rights Violations Against Women In Russia's Prisons, Courtney M. Skiles
Washington International Law Journal
Russia currently incarcerates women in conditions that amount to human rights violations. Women incarcerated in Russia’s prisons experience not only oppression and abuse common to all those incarcerated in Russia, but also gender-specific harms. While Russia has signed on to many pivotal human rights treaties, it also has a long history of mass incarceration of its people. Today, the prison conditions for women in Russia reveal a need for reform. Reformers are challenged by a powerful State that has not prioritized the type of reform necessary to eliminate further harms done to incarcerated women. To ensure the rights of women …