Complete volumes of the Washington Law Review, dating back to Volume 1, Issue 1 (June 1925),
are available in the Marian Gould Gallagher Law Library
.
Volume 84
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Issue 3
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August 2009
Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism
RonNell Anderson Jones
84 Wash. L. Rev. 317 (2009)
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Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change-albeit on a different trajectory-as readership and public reputation plummet. As the dialogue on this complicated topic once again reaches full volume, intensified by a series of hotly contested federal reporter's privilege bills, the question of the appropriate legal rule is again inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media. This "law-in-action" Article aims to offer the legislators and policymakers of today what Blasi offered them four decades ago. It reports the results of a large-scale empirical study, presenting both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and local television news operations, and re-explores the questions of changing legal climate and media awareness of legal protection. The Article concludes that media subpoenas have a substantial impact on newsgathering, warranting federal legislative attention. But it also concludes that the traditional press is ill-informed of the contours of its own legal protection, which may compound the difficulties the media experience in this area.
Depoliticizing Judicial Review of Agency Rulemaking
Scott A. Keller
84 Wash. L. Rev. 419 (2009)
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Administrative law doctrines for reviewing agency rulemaking, such as the Supreme Court's dicta in Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. and the D.C. Circuit's hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration. This Article argues that the Supreme Court's recent decision in FCC v. Fox Television Stations, Inc. implicitly eliminated State Farm's dicta and the D.C. Circuit's hard look doctrine. In place of these paternalistic doctrines, courts should establish a doctrine for reviewing agency rulemaking that examines only the agency's purpose in regulating and the means used by the agency to achieve that purpose-instead of giving courts leeway to impose additional procedures on agencies and to nitpick rulemaking records. Constitutional doctrines for reviewing legislation already focus on a government actor's purpose and means, so these doctrines should also be used for reviewing agency rules, which are legislative-like pronouncements that are binding with the force of law. Ultimately, this Article proposes that courts should review agency rulemaking under the standard for reviewing legislation known as "rational basis with bite." Rational basis with bite would require the agency, at the time it promulgates a rule, to articulate its actual statutory purpose in promulgating the rule and explain how the rule is rationally related to that purpose. Not only would rational basis with bite significantly limit the ability of judges to invalidate agency rules based on policy disagreements, but the standard fits well with the Supreme Court's precedents on APA arbitrary and capricious review.
Urbanites Versus Rural Rights: Contest of Local Government Land-Use Regulations Under Washington Preemption Statute 82.02.020
Donya Williamson
84 Wash. L. Rev. 491 (2009)
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In Citizens' Alliance for Property Rights v. Sims, the Court of Appeals of Washington held that King County clearing and grading regulations-recently enacted pursuant to the Washington State Growth Management Act-constitute an unlawful "tax, fee, or charge" on the development of land, thereby violating a Washington excise tax preemption statute. The court ruled that the clearing limitations do not qualify under the statutory exception for mitigation of development impacts since they are not calculated on a site-by-site basis. This Note argues that the ruling greatly expands the scope of this statutory limitation on local land-use regulation, compromises Growth Management Act policies, and misconstrues prior case law. If upheld, the decision's approach will significantly constrain municipal authority to protect environmental quality through land-use regulations.
Ninth Circuit v. Board of Immigration Appeals: Defining "Sexual Abuse of a Minor"After Estrada-Espinoza v. Mukasey
Enoka Herat
84 Wash. L. Rev. 523 (2009)
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Under the Immigration and Nationality Act (INA), lawful permanent residents are rendered removable if they commit an "aggravated felony" at any time after they are admitted into the United States. Significant interpretive issues arise in determining whether a non-citizen's state-based criminal conviction meets the INA's definition of an aggravated felony. One aggravated felony enumerated in the INA is "sexual abuse of a minor."1 The Board of Immigration Appeals (BIA) has interpreted the phrase using a broad federal definition as a guide. In Estrada-Espinoza v. Mukasey, however, the Ninth Circuit declined to defer to the BIA's interpretation because the BIA's decision was not a precedential opinion warranting deference. In reviewing whether a California statutory rape conviction constituted sexual abuse of a minor, the Estrada-Espinoza court applied a different federal definition and concluded there was no violation, and thus, Mr. Estrada-Espinoza was not deportable. The question of how to define "sexual abuse of a minor" will likely come before the Ninth Circuit on substantive grounds once the BIA issues a deference-warranting definition of the provision. This Comment argues that when the Ninth Circuit revisits the issue, it should not defer to the BIA, regardless of the definition it promulgates. Rather, the court should rule that the phrase "sexual abuse of a minor" is unambiguous based on its plain meaning, the Ninth Circuit's precedent, holdings from sister circuits, and policy considerations. This holding would be consistent with the best interpretation of the statute, and Chevron U.S.A. v. Natural Resources Defense Council and its progeny.
The Cost of Doing Business: Corporate Vicarious Criminal Liability for the Negligent Discharge of Oil Under the Clean Water Act
Katherine A. Swanson
84 Wash. L. Rev. 555 (2009)
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In response to massive oil spills that damaged America's waters, devastated local economies, killed wildlife, and cost taxpayers millions in clean-up costs, Congress passed the Oil Pollution Act of 1990. The Act amended the Federal Water Pollution Control Act to allow for criminal prosecution of negligent oil discharges. This Comment argues that although the plain language of the Federal Water Pollution Control Act's negligent discharge provision is silent regarding corporate vicarious criminal liability, courts should give full effect to Congress's intent-to protect the health and safety of the public and the environment and to stop corporations from accepting oils spills as just another cost of doing business-and construe the negligent discharge provision to allow for vicarious liability. Doing so will not violate the due process rights of corporations because they are on notice of the stringent regulations surrounding oil pollution. Moreover, corporations are in the best position to prevent and deter negligent employee behavior that leads to oils spills in the first place.