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Articles 241 - 270 of 309
Full-Text Articles in Jurisprudence
Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang
Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang
Seattle Journal for Social Justice
No abstract provided.
The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter
The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter
Seattle Journal for Social Justice
No abstract provided.
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers
American Indian Law Journal
No abstract provided.
"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh Spitzer
"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh Spitzer
Seattle University Law Review
This Article focuses on the tension between the late-nineteenth century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” …
The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer
The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer
Seattle University Law Review
It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …
License To Discriminate: How A Washington Florist Is Making The Case For Applying Intermediary Scrutiny To Sexual Orientation, Kendra Lacour
License To Discriminate: How A Washington Florist Is Making The Case For Applying Intermediary Scrutiny To Sexual Orientation, Kendra Lacour
Seattle University Law Review
Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has generally been on the right to marriage, peripheral issues associated with the right to marriage—and with sexual orientation generally—have become more common in recent years. As the number of states permitting same-sex marriage—along with states prohibiting discrimination on the basis of sexual orientation—increases, so too does the conflict between providers of public accommodations and those seeking their services. Never is this situation more problematic than when religious beliefs are cited as the basis for denying services to …
Moral Foundation Theory And The Law, Colin Prince
Moral Foundation Theory And The Law, Colin Prince
Seattle University Law Review
Moral foundation theory argues that there are five basic moral foundations: (1) harm/care, (2) fairness/reciprocity, (3) ingroup/loyalty, (4) authority/respect, and (5) purity/sanctity. These five foundations comprise the building blocks of morality, regardless of the culture. In other words, while every society constructs its own morality, it is the varying weights that each society allots to these five universal foundations that create the variety. Haidt likens moral foundation theory to an “audio equalizer,” with each culture adjusting the sliders differently. The researchers, however, were not content to simply categorize moral foundations—they have tied the foundations to political leanings. And it is …
Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss
Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss
Seattle University Law Review
Whatever the merits of minimalism in constitutional adjudication, this Essay argues that in another aspect of federal adjudication--what this Essay terms “reluctant judicial factfinding”--we already have too much minimalism. In certain areas of law, courts are quite reluctant to engage in close scrutiny of critically important facts, instead falling back on policies that avoid such factfinding. Parts II, III, and IV discuss each of these three areas of reluctant judicial factfinding. Then, Part V offers some thoughts as to possible causes of this reluctance to undertake factual inquiries that statutes, rules, and Supreme Court precedent instruct district and appellate courts …
Asymmetric World Jurisprudence, Caprice L. Roberts
Asymmetric World Jurisprudence, Caprice L. Roberts
Seattle University Law Review
This article argues that the Supreme Court should reconsider its prudential justiciability doctrines and their underlying assumptions. As a global theory, this Article offers a judicial dynamism model. It then articulates the relevance of the political question doctrine and the need to view the doctrine as prudential rather than constitutional. First, I discuss the Supreme Court's increased use of judicial minimalism and the political question doctrine to avoid important cases and reduce its docket. Second, I describe my model, in which the court takes a dynamic approach to such issues, dependent upon the political climate, to maintain its appropriate stature …
Butchering Statutes: The Postville Raid And The Misinterpretation Of Federal Criminal Law, Peter R. Moyers
Butchering Statutes: The Postville Raid And The Misinterpretation Of Federal Criminal Law, Peter R. Moyers
Seattle University Law Review
This article argues that a federal district court misinterpreted several statutes after an immigration raid in Postville, Iowa. In Part II, I begin with an account of Agriprocessors' prior legal troubles, which explains how it became such a politically attractive target. Next, I describe how the investigation of Agriprocessors led to a raid seeking to execute nearly 700 criminal arrest warrants. In Part III, I describe the causes of the accelerated criminal process that resulted in nearly 300 guilty pleas and sentencings in the span of twelve days. In Part IV, I argue that the accelerated process was premised upon …
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Seattle University Law Review
This Essay suggests that many of the same reasons why Saucier proved so controversial--and perhaps even unworkable--in qualified immunity cases are less salient in the context of post-conviction habeas corpus, where the value of reaching potentially unnecessary questions of constitutional law far outweighs the cost. Put another way, my thesis is that, even though the Saucier sequence is no longer mandatory in qualified immunity jurisprudence, such a rigid methodological order of battle would be of great utility in the context of post-conviction habeas corpus--and in the adjudication of “new” rules of criminal law more generally. In that context, this Essay …
A Limited Defense Of (At Least Some Of) The Umpire Analogy, Michael P. Allen
A Limited Defense Of (At Least Some Of) The Umpire Analogy, Michael P. Allen
Seattle University Law Review
This Essay provides at least a limited defense of some parts of the umpire analogy and ultimately suggests that this analogy may tell us something important about the more general role of courts in the United States. This Essay proceeds in four parts. Part II explores in more depth what those making the umpire analogy appear to mean. At its heart, the analogy principally has been used to address the substantive decision making of judges. This Part will explain that there is more to the analogy than such a narrow decisional focus suggests. Part III builds on Part II. It …
The Origin Of Article I, Section 7 Of The Washington State Constitution, Associate Chief Justice Charles W. Johnson, Scott P. Beetham
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.
The Difference A Day Makes: How Courts Circumvent Federal Immigration Law At Sentencing, David S. Keenan
The Difference A Day Makes: How Courts Circumvent Federal Immigration Law At Sentencing, David S. Keenan
Seattle University Law Review
Efforts in criminal courts to avoid deportation as a result of convictions are prevalent throughout the United States. Although defendants in Washington have a statutory right to be advised of the potential immigration consequences of a guilty plea, there is no statutory or constitutional requirement that a judge take immigration consequences into consideration in imposing sentence. Nonetheless, as was the case in the assault on Micah Painter, judges can and do make what are effectively policy judgments when sentencing defendants, with an eye toward helping them avoid deportation.
Serving The "Apparently Under The Influence" Patron: The Ramifications Of Barrett V. Lucky Seven Saloon, Inc., Kathryn M. Knudsen
Serving The "Apparently Under The Influence" Patron: The Ramifications Of Barrett V. Lucky Seven Saloon, Inc., Kathryn M. Knudsen
Seattle University Law Review
In Barrett v. Lucky Seven Saloon, Inc., the Washington Supreme Court erroneously expanded commercial vendor liability to third parties who are injured in automobile accidents by a patron who drives while impaired. This decision flies in the face of Washington vendor liability jurisprudence, which has shown a reluctance to hold vendors liable for negligently serving alcohol; prior to Barrett, courts would not do so unless the patron was a minor or was "obviously intoxicated." Nevertheless, Barrett rejected the common law "obviously intoxicated" rule in exchange for a new form of civil liability based on a criminal statute that …
Dueling Federalists: Supreme Court Decisions With Multiple Opinions Citing The Federalist, 1986-2007, Matthew J. Festa
Dueling Federalists: Supreme Court Decisions With Multiple Opinions Citing The Federalist, 1986-2007, Matthew J. Festa
Seattle University Law Review
This Article examines the use of history in legal interpretation through an empirical analysis of one of the most prominent examples of historical evidence in law: citations to The Federalist in Supreme Court Justices' published opinions. In particular, the Article examines a phenomenon that has occurred frequently over the last two decades, but has thus far been virtually ignored: the citation by different Justices to the same historical source (such as The Federalist) to support divergent or opposing historical interpretations of legal meaning. Although the use of historical evidence in constitutional interpretation is itself much debated, The Federalist continues …
Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson
Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson
Seattle University Law Review
Why would a relatively mundane dispute over what amounts to a few cubic yards of concrete warrant the extensive discussion encom passed in this Note? This dispute gives rise to a fundamental question about power: What is the scope of municipal power under one of Washington's most important environmental protection laws? Additionally, questions arise about competing normative values within environmental protection, property rights, and responsible land use and development. Placed against a backdrop of growing contentiousness surrounding these issues in Washington politics, the relevance and timeliness of these questions cannot be doubted.
Moiwana Village V. Suriname: A Portal Into Recent Jurisprudential Developments Of The Inter-American Court Of Human Rights, Thomas Antkowiak
Moiwana Village V. Suriname: A Portal Into Recent Jurisprudential Developments Of The Inter-American Court Of Human Rights, Thomas Antkowiak
Faculty Articles
On June 15, 2005, the Inter-American Court issued its judgment in Moiwana Village v. Suriname, which held Suriname responsible for numerous human rights violations and ordered several remedial measures. In a separate opinion, one of the Tribunal's veteran judges, Ant¿nio Can¿ado-Trindade, wrote that the case "raises issues of great transcendence." Certainly, the decision illustrates several of the Court's latest jurisprudential developments, and navigates a few rising socio-political tides in South and Central America. This brief essay seeks to demonstrate how the Moiwana case: a) presents factual situations that are increasingly common before the Court; b) continues to develop key legal …
Linguistics As A Knowledge Domain In The Law, Janet Ainsworth
Linguistics As A Knowledge Domain In The Law, Janet Ainsworth
Faculty Articles
This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures and …
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
Faculty Articles
Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist approach, commenting …
Beyond The Conventional Establishment Clause Narrative, Richard Albert
Beyond The Conventional Establishment Clause Narrative, Richard Albert
Seattle University Law Review
The article reviews of jurisprudence offers a systematic look at every Establishment Clause case to have reached the docket of the United States Supreme Court since 1947. That year is of particular significance, for it marks the incorporation of the Establishment Clause, which the Court articulated in its influential establishment case, Everson v. Board of Education. Through the intervening years there have been a total of forty-six other cases-forty-seven in total-in which establishment issues constituted the core legal quandary. The article poses two questions as it reviews the Court's opinion in each suit: (1) In contemplating the meaning of …
Partisanship Redefined: Why Blanket Primaries Are Constitutional, Deidra A. Foster
Partisanship Redefined: Why Blanket Primaries Are Constitutional, Deidra A. Foster
Seattle University Law Review
In 2003, the Ninth Circuit Court of Appeals rendered a decision that would pave the way for drastic changes in Washington State's election process. In Democratic Party of Washington v. Reed, the court held that Washington's nearly seventy-year-old blanket primary was unconstitutional, and the Supreme Court declined to review the case. The Ninth Circuit professed to be bound by California Democratic Party v. Jones, the Supreme Court case that ruled California's blanket primary unconstitutional just three years earlier, ignoring the argument that Washington's blanket primary differed materially from California's. What followed was a melee of voter disapproval and …
Death By A Thousand Signatures: The Rise Of Restrictive Ballot Access Laws And The Decline Of Electoral Competition In The United States, Oliver Hall
Seattle University Law Review
This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law …
Dispensing With The Public Interest Requirement In Private Causes Of Action Under The Washington Consumer Protection Act, Jonathan A. Mark
Dispensing With The Public Interest Requirement In Private Causes Of Action Under The Washington Consumer Protection Act, Jonathan A. Mark
Seattle University Law Review
It has been more than eighteen years since the Washington Supreme Court handed down its landmark decision in Hangman Ridge Training Stables v. Safeco Title Insurance Company. This was the final decision in a string of cases in which the court attempted to resolve problems arising from the application and interpretation of the right to a private cause of action under Washington's Consumer Protection Act ("CPA"). This Article explores the application of the public interest requirement since the decision in Hangman Ridge and considers whether the tests devised by the Hangman Ridge court to determine public interest are still …
Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang
Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang
Seattle University Law Review
This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …
Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer
Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer
Seattle University Law Review
This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have …
Blind Faith And Reasonable Doubts: Investigating Beliefs In The Rule Of Law, Jessie Allen
Blind Faith And Reasonable Doubts: Investigating Beliefs In The Rule Of Law, Jessie Allen
Seattle University Law Review
The article explores the meaning of the rule of law within the American political and legal systems by analyzing the concept in the abstract and its application in President Clinton’s impeachment.
The Nation's Teacher: The Role Of The United States Supreme Court During Times Of Crisis, Robert Jerome Glennon
The Nation's Teacher: The Role Of The United States Supreme Court During Times Of Crisis, Robert Jerome Glennon
Seattle University Law Review
This Article will suggest that TJ has occasionally been part of the United States Supreme Court's jurisprudence. The Court sometimes finds itself at the center of deeply-divisive national controversies. On those occasions, the opinion of the Court can, and ought to, play a role in healing the nation's controversy-inflicted wounds. The Court should consciously craft an opinion that speaks to the American people as a whole and that calls on every citizen, regardless of the fervency of his or her beliefs, to accept the resolution of the controversy offered by the Court. During such crises, citizens are unlikely to accept …
Therapeutic Jurisprudence In The Appellate Arena: Judicial Notice And The Potential Of The Legislative Fact Remand, A.J. Stephani
Therapeutic Jurisprudence In The Appellate Arena: Judicial Notice And The Potential Of The Legislative Fact Remand, A.J. Stephani
Seattle University Law Review
This Article begins with a modest objective and ends with an ambitious one. First, it asserts that appellate courts are an appropriate forum for considering the therapeutic impact of the law strand of therapeutic jurisprudence (TJ) scholarship. TJ's character as a "field of social inquiry" is especially suited to the appellate courts' task of formulating new rules of law and choosing among competing policy objectives when resolving opposing normative principles.