Evidence Commons^™

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

A Monopoly Of Thought—How Growing Anticompetitive Practices On The Internet Affect Creative Work, Laurel Brown

Seattle University Law Review

This Note will address how dominant Internet companies detrimentally impact creative work and how legal solutions might be employed to combat the damage inflicted by online monopolies. Part I will focus on how certain Internet companies became dominant, showing an evolution from egalitarian ideals to the consolidated control of the World Wide Web (the web) by companies like Google, Facebook, and Amazon. In Part II, this Note will focus on how two particular companies—Google and Facebook—affect creative endeavors in their control of access to audiences and by determining the economics of content production on the Internet. Part III details what …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

The Confusion Of Mcdonnell Douglas: A Path Forward For Reverse Discrimination Claims, Christian Joshua Myers

Seattle University Law Review

It is no secret that Title VII of the Civil Rights Act of 1964 is one of the most significant pieces of legislation ever passed by the United States Congress. Fiercely debated and enacted during the Civil Rights Movement of the 1960s, Title VII prohibits employers from engaging in various forms of discrimination within the workplace. For instance, employers may not unlawfully consider race, color, religion, sex, or national origin in employment decisions. Given Bostock v. Clayton County’s recent extension of Title VII’s protections to lesbian, gay, bisexual, transgender, and queer workers, this Article posits that evaluating Caucasian workers’ “reverse …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

“Don’T Move”: Redefining “Physical Restraint” In Light Of A United States Circuit Court Divide, Julia Knitter

Seattle University Law Review

To reduce sentencing disparities and clarify the application of the sentencing guide to the physical restraint enhancement for a robbery conviction, this Comment argues that the United States Sentencing Commission (USSC) must amend the USSC Guidelines Manual to provide federal courts with a clearer and more concise definition of physical restraint. Additionally, although there are many state-level sentencing systems throughout the United States, this Comment only focuses on the federal sentencing guidelines for robbery because of the disparate way in which these guidelines are applied from circuit to circuit.

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Why Do We Admit Criminal Confessions Into Evidence?, David Crump

Seattle University Law Review

There is an enormous literature about the admissibility of criminal confessions. But almost all of it deals with issues related to self-incrimination or, to a lesser extent, with hearsay or accuracy concerns. As a result, the question whether we ever admit criminal confessions into evidence has not been the subject of much analysis. This gap is odd, since confessions are implicitly disfavored by a proportion of the literature and they often collide with exclusionary doctrines. Furthermore, the self-incrimination issue sometimes is resolved by balancing, and it would help if we knew what we were balancing. Therefore, one might ask: Why …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen

Seattle University Law Review

Existing Washington law does not sufficiently safeguard its citizens from “rape by fraud,” an action whereby a person obtains sexual consent and has sexual intercourse of any type by fraud, deception, misrepresentation, or impersonation. Rape by fraud is a form of sexual predation not always prosecutable under existing Washington law. In recent years, twelve states have adopted expanded rape by fraud statutory provisions. Presently, Washington’s rape statutes lack the expansive rape by fraud statutory language adopted by these twelve states. A recent sexual scam in Seattle has revealed holes in Washington’s rape statutes. This Note examines the history of rape …

The Excited Utterance Paradox, Steven Baicker-Mckee

Seattle University Law Review

Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying while emotionally …

Recording A New Frontier In Evidence-Gathering: Police Body-Worn Cameras And Privacy Doctrines In Washington State, Katie Farden

Seattle University Law Review

This Note contributes to a growing body of work that weighs the gains that communities stand to make from police body-worn cameras against the tangle of concerns about how cameras may infringe on individual liberties and tread on existing privacy laws. While police departments have quickly implemented cameras over the past few years, laws governing the use of the footage body-worn cameras capture still trail behind. Notably, admissibility rules for footage from an officer’s camera, and evidence obtained with the help of that footage, remain on the horizon. This Note focuses exclusively on Washington State’s laws. It takes a clinical …

Keynote Remarks: Academic Activism And Freedom Of Speech, Gene Nichol

Seattle University Law Review

I am much honored to be here, in such remarkable company. By my lights, the folks in this room represent the best of the legal academy; those who think, stunningly, that the real world, outside campus walls, actually matters; those who, every day, live out Václav Havel’s definition of hope. Havel thought of hope not as a prediction of success or a description of the world around us but as a conscious choice to live in the belief that we can make a difference in the quality of our shared, and sometimes threatened, lives. When you think about it, the …

“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer

Seattle University Law Review

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support …

Neuroimaging Evidence: A Solution To The Problem Of Proving Pain And Suffering?, Brady Somers

Seattle University Law Review

Envision a plaintiff who was injured on the job at a construction site due to his employer’s negligence. The plaintiff has chronic back pain, but it is not verifiable on an X-ray, nor is a physical injury readily discernible by any other technology. Presently, fact finders are given the broad discretion to decide whether they find this plaintiff credible, and accordingly, whether they believe he is truly in pain and deserves damages for pain and suffering. However, neuroimaging—specifically functional magnetic resonance imaging (fMRI)—could allow those fact finders to visualize whether this plaintiff was hurting by depicting the unique signatures that …

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity …

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

The Admissibility Of Cell Site Location Information In Washington Courts, Ryan W. Dumm

Seattle University Law Review

This Comment principally explores when and how a party can successfully admit cell cite location information into evidence. Beginning with the threshold inquiry of relevance, Part III examines when cell site location information is relevant and in what circumstances the information, though relevant, could be unfairly prejudicial, cumulative, or confusing. Part IV provides the bulk of the analysis, which centers on the substantive foundation necessary to establish the information’s credibility and authenticity. Part V looks at three ancillary issues: hearsay, a criminal defendant’s Sixth Amendment confrontation rights, and the introduction of a summary of voluminous records. Finally, Part VI offers …

“Lonesome Road”: Driving Without The Fourth Amendment, Lewis R. Katz

Seattle University Law Review

The protections of the Fourth Amendment on the streets and highways of America have been drastically curtailed. This Article traces the debasement of Fourth Amendment protections on the road and how the Fourth Amendment’s core value of preventing arbitrary police behavior has been marginalized. This Article contends that the existence of a traffic offense should not be the end of the inquiry but the first step, and that defendants should be able to challenge the reasonableness even when there is proof of a traffic offense.

After Thirty Years, Is It Time To Change The Vehicle Inventory Search Doctrine?, Nicholas B. Stampfli

Seattle University Law Review

Part II of this Comment will describe the inventory search as it has developed in the Supreme Court's jurisprudence in order to provide background and understanding of the procedure as it stands today. Part III will address the difficulties in applying the Supreme Court's approach by comparing the differences in police department policies. Part IV will then closely examine Washington's somewhat laudable approach to inventory searches, the limits the state has placed on the scope of inventory searches, and the steps the state has taken to impose a consent requirement. Last, Part V will suggest much needed reforms for Washington …

Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks

Seattle University Law Review

This article will explore both the various problems that arise with a policy that essentially mandates waiver of the attorney-client privilege as well as the limited appeal of the selective waiver theory as a compromise position. It concludes that selective waiver is inadequate in addressing the many problems created by policies that coerce waiver and that a more desirable solution is to eliminate or amend the governmental policies that coerce waiver. Part II of this article explains and explores the metes and bounds of the attorney-client privilege and work-product protection. Part III explains the development of the selective waiver theory, …