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Seattle University School of Law

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Articles 421 - 450 of 566

Full-Text Articles in Constitutional Law

Revisiting Granite Falls:Why The Seattle Monorail Project Requires Re-Examination Of Washington's Prohibition On Taxation Without Representation, Matthew Senechal Jan 2005

Revisiting Granite Falls:Why The Seattle Monorail Project Requires Re-Examination Of Washington's Prohibition On Taxation Without Representation, Matthew Senechal

Seattle University Law Review

The composition and actions of the un-elected Seattle Monorail Project (SMP) Board raise the question of whether the Washington State Constitution permits the legislature to delegate its taxing power to municipal corporations governed by unelected boards. Stated differently, the SMP Board and its actions present the question of whether the Washington State Constitution requires that local taxes be imposed only by officials who are elected by, and accountable to, the electorate burdened by the tax. While Washington's Constitution, political structures, and legal doctrine are designed to prevent "taxation without representation," the recent case of Granite Falls Library Facility Area v. …

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Article 9 Of The Constitution Of Japan And Procedural And Substantive Heuristics For Consensus, Mark A. Chinen Jan 2005

Article 9 Of The Constitution Of Japan And Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Faculty Articles

Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. Professor Chinen examines the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as …

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Voice Over Internet Protocol And The Wiretap Act: Is Your Conversation Protected?, Daniel B. Garrie, Matthew J. Armstrong, Donald P. Harris Jan 2005

Voice Over Internet Protocol And The Wiretap Act: Is Your Conversation Protected?, Daniel B. Garrie, Matthew J. Armstrong, Donald P. Harris

Seattle University Law Review

10101101: Is this sequence of digits voice or data? To a computer, voice is a sequence of digits and data is a sequence of digits. The law has defined 10101101 to be data, and 10101001 to be voice communications. Courts have constructed a distinction between data, 10101101, and voice, 10101001. However, that distinction is blurred when voice and data are simultaneously transmitted through the same medium. The courts forbid third parties to tap or monitor voice communications, yet permit data packets to be tracked, stored, and sold by third parties with the implied consent of either party engaged in the …

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Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers Jan 2004

Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers

Seattle University Law Review

This Article focuses upon abstention in the context of the Federal Declaratory Judgment Act ("FDJA"). Part I will discuss the various forms of abstention and the historical progression and development of the abstention doctrine in federal case law, setting the background for the expansive holding in Huth v. Hartford Insurance Company of the Midwest. Part II of the article will discuss the procedural history of Huth and the respective rulings of the district court and the Ninth Circuit Court of Appeals as it relates to their application of the abstention doctrine. Part III will then analyze the numerous, and potentially …

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Revisiting The Voyeurism Value In The First Amendment: From The Sexually Sordid To The Details Of Death, Clay Calvert Jan 2004

Revisiting The Voyeurism Value In The First Amendment: From The Sexually Sordid To The Details Of Death, Clay Calvert

Seattle University Law Review

This Article takes a fresh look at the question of "whether the First Amendment freedom of the press will protect our desire to watch against claims of invasion of privacy and other intrusive newsgathering practices [,]" and the fundamental tension between maintaining privacy and accelerating voyeurism, while addressing the notions of geographic privacy and newsworthiness that are critical in this conflict. In particular, this article surveys five specific and cutting-edge areas in the law that demonstrate the conflict between privacy and voyeurism and the legal system's struggles to reconcile the two concepts. Each of these is an area that has …

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Case Comments: Constitutional Law: Reaffirming Every Floridian’S Broad And Fundamental Right To Privacy, Diane Lourdes Dick Jan 2004

Case Comments: Constitutional Law: Reaffirming Every Floridian’S Broad And Fundamental Right To Privacy, Diane Lourdes Dick

Faculty Articles

In this article Professor Diane Lourdes Dick examines the Parental Notice of Abortion Act (the Act) that was passed in 1999 by the Florida Legislature, which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option must demonstrate to a court that she is either mature enough to make the decision or that, despite a court's finding that she lacks sufficient maturity, parental notification is clearly not in her best interest. The statute has never been enforced and the right to privacy …

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Preemptive War: Is It Constitutional, John B. Mitchell Jan 2004

Preemptive War: Is It Constitutional, John B. Mitchell

Faculty Articles

When America attacked Iraq in 2002, it was the first preemptive war in the history of our nation. While there is daily debate over the wisdom and consequences of that action, the question whether the federal government even possessed the power under the Constitution to wage preemptive war does not seem to have been raised. Although the legal literature abounds with discussion about whether the President may authorize significant military operations without the explicit authorization of Congress, the author could not find a single work written in legal cases or commentary about preemptive war. This article considers this heretofore unanswered …

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Stacking The Deck Against Suspected Terrorists: The Dwindling Procedural Limits On The Government's Power To Indefinitely Detain United States Citizens As Enemy Combatants, Nickolas A. Kacprowski Jan 2003

Stacking The Deck Against Suspected Terrorists: The Dwindling Procedural Limits On The Government's Power To Indefinitely Detain United States Citizens As Enemy Combatants, Nickolas A. Kacprowski

Seattle University Law Review

This Note examines Padilla v. Bush as an example of the contemporary application of enemy combatant law. This Note argues that in present and future applications of enemy combatant law, courts should treat Padilla as the preferred model of application because Padilla preserves more Constitutional protections, specifically the right to counsel in bringing a habeas petition, than do Hamdi or Quirin. The Padilla decision is preferable to Hamdi because Padilla restricts the movement of enemy combatant law away from the ex- press criminal protections of the Constitution. In contrast, Hamdi greatly accelerates such movement.

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A Less Tragic Commons?: Using Harvester And Processor Quotas To Address Crab Overfishing, Avi Brisman Jan 2003

A Less Tragic Commons?: Using Harvester And Processor Quotas To Address Crab Overfishing, Avi Brisman

Seattle University Law Review

Part II of this Comment provides a brief overview of the history of the Magnuson Act. Part III describes the current status of the BSAI crab fisheries and the need for crab rationalization. In Part IV, this Comment examines NPFMC's preferred alternative—the three-pie voluntary cooperative program as set forth in its Bering Sea Crab Rationalization Program Alternatives: Public Review Draft (May, 2002) and Summary of the North Pacific Fishery Management Council's Bering Sea and Aleutian Islands Crab Rationalization Program Submitted to the United States Congress, August, 2002. Part V looks at the legal issues surrounding processor quotas, focusing specifically on …

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Public Funding For Theological Training Under The Free Exercise Clause: Pragmatic Implications And Theoretical Questions Posed To The Supreme Court In Locke V. Davey, Katie Axtell Jan 2003

Public Funding For Theological Training Under The Free Exercise Clause: Pragmatic Implications And Theoretical Questions Posed To The Supreme Court In Locke V. Davey, Katie Axtell

Seattle University Law Review

Part II of this Note presents the factual background and procedural history of Davey v. Locke. Part III discusses the Free Exercise Clause of the First Amendment. Section A provides a basic background on the Supreme Court's free exercise jurisprudence. Section B applies the Court's precedent to Davey, and concludes that the Ninth Circuit sidestepped a true "prohibition" analysis. Sections A, B, and C of Part IV discuss the differing neutrality examinations within free exercise, free speech, and establishment jurisprudence, respectively. Section D discusses the overlapping application of neutrality criteria in establishment and free speech funding cases. Section E concludes …

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Zoning Churches: Washington State Constitutional Limitations On The Application Of Land Use Regulations To Religious Buildings, Darren E. Carnell Jan 2002

Zoning Churches: Washington State Constitutional Limitations On The Application Of Land Use Regulations To Religious Buildings, Darren E. Carnell

Seattle University Law Review

This Article traces a path to various land use regulatory approaches that should survive scrutiny under the Washington State Constitution. Part I outlines the legal history of challenges to the application of zoning regulations to church buildings; Part I also describes the contexts in which such disputes presently arise. Part II introduces the Washington State Constitution's provision regarding the free exercise of religion and describes the limited body of case law that has applied this provision in the land use context. Part III considers the role of federal case law in interpreting the free exercise clause of the Washington State …

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Religious Land Use Jurisprudence: The Negative Ramifications For Religious Activities In Washington After Open Door Baptist Church V. Clark County, Beth Prieve Jan 2002

Religious Land Use Jurisprudence: The Negative Ramifications For Religious Activities In Washington After Open Door Baptist Church V. Clark County, Beth Prieve

Seattle University Law Review

Part II of this Note provides a history of religious land use jurisprudence in Washington. This part addresses growth management laws generally, and where these laws cross paths with constitutional guarantees of the free exercise of religion. Part III focuses on the Washington Supreme Court's Open Door decision, separately addressing both the majority opinion and the dissent. Part IV illustrates how the Washington Supreme Court misapplied Washington's religious freedom test in Open Door and significantly shifted religious land use jurisprudence. Part IV further discusses how this shift may include Washington's adoption of the lower federal standard and elaborates upon the …

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Rethinking Canine Sniffs: The Impact Of Kyllo V. United States, Amanda S. Froh Jan 2002

Rethinking Canine Sniffs: The Impact Of Kyllo V. United States, Amanda S. Froh

Seattle University Law Review

The argument develops as follows. Part II provides a general background on how the court has determined whether an investigative technique or device is a search within the meaning of the Fourth Amendment, and the implications for finding that something is a search. This section focuses primarily on Katz v. United States, the pivotal case in which the Supreme Court departed from previous Fourth Amendment jurisprudence by recognizing that the Fourth Amendment's core value is the protection of individual privacy, not the protection of places. In light of this background, Part III provides examples of how the Supreme Court has …

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The Indecency Of Unsolicited Sexually Explicit Email: A Comment On The Protection Of Free Speech V. The Protection Of Children, Monique Redford Jan 2002

The Indecency Of Unsolicited Sexually Explicit Email: A Comment On The Protection Of Free Speech V. The Protection Of Children, Monique Redford

Seattle University Law Review

Because the state of Washington has a compelling interest in protecting the moral and psychological welfare of its children, the current spam law should be amended to also proscribe the transmission of unsolicited sexually explicit commercial email within its borders. This article argues that such an amendment would not violate either the dormant Commerce Clause or the First Amendment. In support of this thesis, section II first addresses the pervasive problem of children-not just adults-receiving sexually explicit material via unsolicited email. Then, sections III through V discuss the implications of the dormant Commerce Clause, the First Amendment, and the policy …

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A Closer Look At Good News V. Milford: What Are The Implications? (Stay Tuned) , John E. Dunsford Jan 2002

A Closer Look At Good News V. Milford: What Are The Implications? (Stay Tuned) , John E. Dunsford

Seattle University Law Review

This article will examine: (1) whether Lamb's Chapel should control; (2) whether there is a relevant distinction between religious viewpoint and subject matter; (3) whether a forum open to much of the public may be limited to others; (4) whether the presence of prayer and worship should affect the right of a private organization to access public property; and (5) whether such use of public property violates the Establishment Clause.

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Reason To Ratify: The Influence Of John Locke's Religious Beliefs On The Creation And Adoption Of The United States Constitution, David L. Wardle Jan 2002

Reason To Ratify: The Influence Of John Locke's Religious Beliefs On The Creation And Adoption Of The United States Constitution, David L. Wardle

Seattle University Law Review

The pervasive influence of Lockean religious convictions motivated the framers of the Constitution to establish a new form of government, provided the theoretical basis for the document itself, and inspired its popular ratification. Part II will lay the groundwork for this thesis by outlining Locke's life and sources of his religious beliefs. Part III will undertake a more substantive examination of Locke's opinions and the writings that memorialized them. Establishing how Lockean ideas of natural law, social contract, and reason are related to the inspiration, drafting, and acceptance of the Constitution takes place in Part IV, before the article's conclusion …

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"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety Jan 2001

"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety

Seattle University Law Review

In this paper, I attempt to draw parallels between the psychology of commercial advertising and marketing and the psychology of addiction. Both appear to be characterized by denial, escapism, narcissism, isolation, insatiability, impatience, and diminished sensitivity. Advertising appeals to these impulses and addiction is marked by them. In what follows, I explore these parallels in general and then explore the potential consequences or side effects in three specific contexts: the advertising of addictive products, advertising and children, and advertising and women. In these three areas, there is some evidence that advertising may be contributing to negative social phenomena in a …

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Lindsey V. Tacoma-Pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption And The Federal Cigarette Labeling And Advertising Act, Harold C. Reeder Jan 2001

Lindsey V. Tacoma-Pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption And The Federal Cigarette Labeling And Advertising Act, Harold C. Reeder

Seattle University Law Review

The Article evaluates Lindsey and other recent cases dealing with local regulations restricting tobacco advertising; it also examines their respective preemption analyses, suggesting that the use of the FCLAA's preemption provision against such regulations is unwarranted. The article argues that in Lindsey, the Ninth Circuit misconstrued the Supreme Court's discussion of the preemptive scope of the FCLAA by failing to read it in the proper contex and that the FCLAA's preemption provision was not intended to prevent the particular types of regulations involved in Lindsey and these other cases. It argues that the preemption provision was only meant to …

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Applying The Market Participant Exception To Selective Purchasing Laws That Affect Foreign Commerce Relations: Reading Between The Lines Of National Foreign Trade Council V. Natsios, Michelle C. Sarruf Jan 2001

Applying The Market Participant Exception To Selective Purchasing Laws That Affect Foreign Commerce Relations: Reading Between The Lines Of National Foreign Trade Council V. Natsios, Michelle C. Sarruf

Seattle University Law Review

In this Note, I will examine the background of the situation in Burma as well as the federal and state legislation passed in response to the atrocities occurring within Burma's borders. I will then address the First Circuit's holding that the Massachusetts Burma Law is unconstitutional, focusing on the court's foreign Commerce Clause analysis and failure to apply the market participant exception. Finally, I will discuss the history of and the justifications for the market participant exception, exploring how the exception should be applied in the context of foreign commerce.

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Direct Democracy Is Not Republican Government, Steven William Marlowe Jan 2001

Direct Democracy Is Not Republican Government, Steven William Marlowe

Seattle University Law Review

This Article will initially explain the examples of direct democracy in the states of Washington and Oregon. It will then analyze the United States Constitution's Guarantee Clause. Finally, this Article will argue that state initiative and referendum provisions are inconsistent with a republican form of government and that laws passed through the use of this process are unconstitutional.

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Initiatives—Enemy Of The Republic, Brewster C. Denny Jan 2001

Initiatives—Enemy Of The Republic, Brewster C. Denny

Seattle University Law Review

The Seattle University Law Review's Symposium on the initiative process in Washington State addresses an issue of both transcendent importance to the health of the Republic and immediate challenge to the welfare of the children of this state. This discussion could not be more timely, and not just locally. Here's why. Devolution, tax cuts for the rich and the super rich, welfare reform, and a more conservative, market-oriented philosophy of government lay on the states and low income parents and children the burden of meeting the most critical needs of children-from prenatal care through college. With twenty percent of our …

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Double Jeopardy And Punishment: Why An As Applied Approach, As Applied To Separation Of Powers Doctrines, Is Unconstitutional, Todd W. Wyatt Jan 2000

Double Jeopardy And Punishment: Why An As Applied Approach, As Applied To Separation Of Powers Doctrines, Is Unconstitutional, Todd W. Wyatt

Seattle University Law Review

This Comment will argue that an as applied approach allows the executive branch, whether at the state or federal level, to encroach into the legislative realm by rendering a statute unconstitutional as a result of the way the statute is administered. Section II of this Comment will begin by examining the history of the as applied and on its face double jeopardy approaches during the last 20 years. After a close examination of the decisions in Halper and Hudson in sections II.B and II.C, this Comment will explain why the holding of Hudson, though correct in its result, was …

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Lessons From The Past And Strategies For The Future: Using Domestic, International And Comparative Law To Overturn Sodomy Laws, Charlene Smith, James Wilets Jan 2000

Lessons From The Past And Strategies For The Future: Using Domestic, International And Comparative Law To Overturn Sodomy Laws, Charlene Smith, James Wilets

Seattle University Law Review

This Article will first discuss the legal importance of challenging sodomy laws, even though those laws are rarely enforced. It will then discuss the importance of incorporating international and comparative law in formulating these challenges. In Section II, Professor Charlene Smith will discuss past and future strategies, focusing on the topics of equal protection, morality, and the difference (or lack thereof) between acts and status. In Section III, Professor Jim Wilets will explore incorporating international and comparative law into domestic challenges to U.S. sodomy laws. This Article will demonstrate that there is binding Supreme Court authority requiring all U.S. courts …

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Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis Of Personal Autonomy Rights, Mark Niles Jan 2000

Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis Of Personal Autonomy Rights, Mark Niles

Faculty Articles

Notwithstanding decades of significant legal scholarship focusing on the Ninth Amendment to the U.S. Constitution, a large portion of the practicing legal community, and even a substantial percentage of legal scholars, are unfamiliar with the provision. The primary reason for this phenomenon is the striking absence of an identifiable body of Ninth Amendment adjudication. In this Article, Mark Niles focuses on this phenomenon and endeavors to develop an interpretative theory of the amendment upon which an adjudicative role can be founded. In Part I of this Article, Niles outlines the traditional judicial treatment of the Ninth Amendment, or more precisely, …

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Understanding The Limits Of Power: Judicial Restraint In General Jurisdiction Court Systems, Justice Philip A. Talmadge Jan 1999

Understanding The Limits Of Power: Judicial Restraint In General Jurisdiction Court Systems, Justice Philip A. Talmadge

Seattle University Law Review

This Article draws on my legislative and judicial background to focus both on the tendency of the courts to exceed their core constitutional role and the implications of such judicial activism. This article contend that modern courts of general jurisdiction are too often embroiled in sociopolitical controversies best left to the political branches of government. Part I addresses the concept of judicial restraint in our constitutional system and the need to define the core powers of the judicial branch of government. Part II discusses principles of judicial restraint in the federal courts. Part III, using the example of Washington State …

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Why Constitutional Torts Deserve A Book Of Their Own, Michael Wells, Thomas A. Eaton, Sheldon H. Nahmod Jan 1999

Why Constitutional Torts Deserve A Book Of Their Own, Michael Wells, Thomas A. Eaton, Sheldon H. Nahmod

Seattle University Law Review

Over thirty years ago, Marshall Shapo coined the term "constitutional tort" to denote a suit brought against an official, charging a constitutional violation and seeking damages.' In the years since Shapo's pathbreaking article, the number of such suits has grown exponentially.' The suits have generated a host of new substantive and remedial issues, yet conventional casebooks on constitutional law and federal courts give little attention to the area. That Professor Shapiro had four books to include in his review of “Civil Rights” casebooks in the Seattle University Law Review is some indication of a demand for teaching materials currently unmet …

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Will Surfing The Web Subject One To Transient Tax Jurisdiction? Why We Need A Uniform Federal Sales Tax On Internet Commerce, Aaron G. Murphy Jan 1999

Will Surfing The Web Subject One To Transient Tax Jurisdiction? Why We Need A Uniform Federal Sales Tax On Internet Commerce, Aaron G. Murphy

Seattle University Law Review

This Comment considers how Internet sales could be taxed if Congressional action is taken to remove the Commerce Clause impediments, which would leave only Due Process Clause limitations on Internet taxation. Though three potential solutions are addressed and analyzed for their potential treatment under the Due Process Clause, this Comment concludes that a federal uniform tax on Internet sales of goods will achieve the best balance of interests while avoiding Due Process problems. Part Two provides the reader with a basic description of the current law in the area of sales and use taxes and the problems the Internet poses …

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Searching For The "Tail Of The Dog": Finding "Elements" Of Crimes In The Wake Of Mcmillan V. Pennsylvania, Richard G. Singer, Mark D. Knoll Jan 1999

Searching For The "Tail Of The Dog": Finding "Elements" Of Crimes In The Wake Of Mcmillan V. Pennsylvania, Richard G. Singer, Mark D. Knoll

Seattle University Law Review

Part II of this Article will examine the historical importance of punishment as a litmus test in the common law in finding the elements of an offense. In Part III, the historical approach used by federal courts when value or quantity was at issue will be analyzed in order to round out the pre-McMillan framework. Part IV will discuss the McMillan decision, as well as the post-McMillan regime. Part V will analyze Jones v. United States, the case now pending before the Court, in which the Court may have its last chance to correct the error of McMillan and …

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Guarding The Treasure: Protection Of Student Religious Speech In The Classroom, Chad Allred Jan 1999

Guarding The Treasure: Protection Of Student Religious Speech In The Classroom, Chad Allred

Seattle University Law Review

This Article makes two observations, both in Parts II and III, that have received insufficient attention in the academic literature and in the courts. First, students in public school classrooms are "captive speakers." Due to compulsory attendance laws, students are "captive" not only when hearing speech, but also when they wish to speak. Adhering to the First Amendment means protecting not only captive listeners, but also captive speakers. Second, in the face of the potential misperception of students that their school endorses the speech of a fellow student, teachers have an extraordinary opportunity to simultaneously disclaim endorsement and teach the …

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Notes On Notes, Margaret G. Stewart Jan 1998

Notes On Notes, Margaret G. Stewart

Seattle University Law Review

The author’s search for a text which emphasized the underlying and continual concerns that the roles of judicial review and federalism present whenever the Court is asked to justify or reject majoritarian decisions led her to adopt Stone, Seidman, Sunstein, and Tushnet’s Constitutional Law. Having used it for at least five years, she remains convinced that it does an excellent job in a difficult field. The Stone, Seidman, Sunstein, and Tushnet casebook seems to have found a workable mix of past and present political and judicial landscape. For the most part, it utilizes a chronological approach in its separate …

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