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 4
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November 2009
Rape, Feminism, and the War on Crime
Aya Gruber
84 Wash. L. Rev. 581 (2009)
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Full Article
Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. In apparent lock step with the movement of the American penal system, feminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. In the rape context, this effort has produced mixed results. Sexual assault laws that adopt prevailing views of criminality and victimhood, such as predator laws, enjoy great popularity. However, reforms that target the difficulties of date rape prosecutions and seek to counter gender norms, such as rape shield and affirmative consent laws, are controversial, sporadically-implemented, and empirically unsuccessful. After decades of using criminal law as the primary vehicle to address sexualized violence, the time is ripe for feminists to reassess continued involvement in rape reform. This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies before making further investments of time, resources, and intellect in rape reform. In advancing this caution, the Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform. The Article then crafts a separate philosophical critique of proprosecution approaches by exposing the tension between the basic tenets of feminism and those animating the modern American penal state. Finally, it discusses why purported cultural and utilitarian benefits from rape reform cannot outweigh the destructive effect criminalization efforts have on feminist discourse and the feminist message. The Article concludes that feminists should begin the complicated process of disentangling feminism's important stance against sexual coercion from a criminal justice system currently reflective of hierarchy and unable to produce social justice.
Muscular Procedure: Conditional Deference in the Executive Detention Cases
Joseph Landau
84 Wash. L. Rev. 661 (2009)
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The executive detention cases of the past several years demonstrate a rare but critical assertion of procedural law where the political branches fail to legislate or to properly implement substantive law. This is "muscular procedure"-the invocation of a procedural device to condition deference on political branch integrity. Courts have affected the law of national security in profound ways by requiring the political branches to adhere to a judicially imposed standard of transparency and deliberation. Courts have resolved the merits of individual enemy combatant challenges by rejecting executive branch decisions based on absolute secrecy, innuendo, tentativeness, or multiple levels of hearsay, while affirming executive determinations that satisfy minimal standards of reliability. More broadly, courts have used procedural rules to smoke out and put in check Congress's lack of oversight of the executive branch and the President's inadequate interpretation and implementation of authorizing legislation. Although the prevailing descriptive and normative frameworks advocate either blind deference to the collective expertise of the political branches or judicial resolution of large, complex and highly fractious substantive questions, courts have instead put procedure to muscular uses focusing on the means of coordinate branch decisionmaking, while still allowing the political branches to define the content of the substantive law. This theory of judicial review, which is grounded in the judiciary's comparatively greater expertise in procedure, has implications beyond the national security context.
American Federalism: Punching Holes in the Myth
Hugh D. Spitzer
84 Wash. L. Rev. 717 (2009)
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Book Review of - SAFEGUARDING FEDERALISM: HOW STATES PROTECT THEIR INTERESTS IN NATIONAL POLICYMAKING
By John D. Nugent. Norman, Oklahoma: University of Oklahoma Press, 2009. Pp. 344. $45.00.
The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law
Charlene Koski
84 Wash. L. Rev. 723 (2009)
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Only Congress has authority to change a reservation's boundaries, so when disputes arise over whether land is part of a reservation, courts turn to congressional intent. The challenge is that in many cases, Congress expressed its intent to diminish or disestablish a reservation as long as one hundred years ago through a series of "surplus land acts."1 To help courts with their task, the Supreme Court in Solem v. Bartlett2 laid out a three-tiered analysis. This Comment examines how courts have applied modern demographics-part of Solem's third and least probative tier-and demonstrates that they have consistently and primarily used the factor to support finding reservation diminishment. Furthermore, in 2005, the Supreme Court in City of Sherrill v. Oneida Indian Nation3 applied Solem's justifications for considering demographics to questions of tribal tax immunity and the legal doctrines of laches, acquiescence, and impossibility,4 laying the groundwork for expansive use of demographics in other areas of Indian law. This Comment argues that courts should stop applying modern demographics to questions of reservation diminishment because doing so has led to outcomes that conflict with congressional Indian policy and undermine core canons of construction that have long governed the relationship between Indian tribes and federal courts.