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 85
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Issue 2
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May 2010
Global Warming: A Second Coming for International Law?
Deepa Badrinarayana
85 Wash. L. Rev. 253 (2010)
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Full Article
Currently, there are no adequate mechanisms under international law to balance the competing tensions climate change presents to state sovereignty. On one hand, climate change threatens state sovereignty because the catastrophic loss of life and property of millions of people would deprive states of control over their domestic territories. Yet, other states rely on claims of their sovereignty to reject international legal obligations to mitigate climate change. This Article attributes the inadequacy of international law in the climate context to the evolution of the international community into an economic union that has historically privileged material interests over legal rights. It argues that given the high improbability of supplanting this economic union with a legal union that protects sovereign rights while also checking sovereign powers, an entirely innovative approach is necessary to redress climate change-related rights violations. It further argues that the focus of law and policy makers should shift away from inadequate explanations of the relevance of international law provided by current international legal theories toward normative-based solutions to address violations of both sovereignty and human rights.
Allocating the Costs of the Climate Crisis: Efficiency Versus Justice
Amy Sinden
85 Wash. L. Rev. 293 (2010)
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Full Article
In the international negotiations aimed at reaching an agreement to reduce the greenhouse-gas emissions that are driving global warming, the developed and developing countries are talking past each other. The developed world is speaking the language of efficiency, while the developing world speaks the language of justice. Economic theory and the concept of efficiency are fine for answering the question of who should reduce, but that is not the contentious issue. When it comes to the hotly contested issue of who should pay, economic theory offers no guidance, and the developing world is right to insist that we look to principles of justice. This Article considers three kinds of approaches to the who-shouldpay question: 1) those that take status quo emissions levels as their starting point; 2) those that allocate emissions rights on a per capita basis; and 3) those that allocate the costs of emissions reductions on the basis of ability to pay. The Article then considers three possible models for conceptualizing the who-should-pay question in light of widely shared principles of justice: 1) the property model views it as a problem of dividing and allocating a commonly held property right—the capacity of the atmosphere to absorb greenhouse gases; 2) the tort model views it as a question of how to allocate costs when one party causes injury to another; and 3) the tax model views it as a situation in which a group of persons or entities are all engaged in a common enterprise to promote the common good and must allocate the costs of that enterprise. The Article evaluates each of the three approaches to the who-should-pay question under each of these three models of justice, and concludes that the per capita approach is the clear winner. It comports best with the property and tort models of justice, and with respect to the tax model, it comes in a close second. A rough calculation reveals that, if a per capita approach is indeed the most just, then the recent proposals by developing countries that the developed countries each contribute 1% of their gross domestic product to adaptation and mitigation efforts in the developing world is quite reasonable, perhaps even a bargain. Finally, the Article considers and responds to several counterarguments against the per capita approach.
Arrested Development: Arizona v. Gant and Article I, Section 7 of the Washington State Constitution
Jacob Brown
85 Wash. L. Rev. 355 (2010)
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Full Article
In Arizona v. Gant, the United States Supreme Court held that the search of a vehicle incident to arrest is permissible in only two situations: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment; or (2) when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle. Because Gant expressed a standard more protective than that established by the Washington State Supreme Court, Gant induced a state of confusion in Washington, where it has long been maintained that article I, section 7 of the Washington State Constitution offers broader protections than those available under the Fourth Amendment. Since Gant, the Court has twice attempted to redefine the search of a vehicle incident to arrest under article I, section 7. In State v. Patton, and subsequently in State v. Valdez, the Washington State Supreme Court adopted a standard closely resembling the first Gant prong. However, neither decision expressly adopted or rejected the second. Because the second prong is supported by historical Washington case law, the Washington State Supreme Court should adopt a modified version of the Gant rule, with an added proscription on the opening of any locked containers located during the search. Such a modification would satisfy the heightened privacy protections of article I, section 7.
Leading a Judge to Water: In Search of a More Fully Formed Washington Public Trust Doctrine
Ivan Stoner
85 Wash. L. Rev. 391 (2010)
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Under the public trust doctrine, a state must hold certain types of natural resources, most particularly navigable waters and shorelands, in trust for the benefit of the public. For that reason, courts closely scrutinize state actions impacting these public trust resources. In Caminiti v. Boyle, the Washington State Supreme Court developed a test that addresses situations where the State transfers control of public trust resources to private parties. But no firm rule guides Washington courts where a state action impacts the public trust without an alienation. This Comment examines the review Washington courts have applied in such situations, and concludes that while certain core principles are extractable— especially the principle that Washington courts’ role under the public trust doctrine does not end with enforcing the non-alienation rule established in Caminiti—Washington public trust law in this area remains vague. This Comment argues that reference to Wisconsin’s welldeveloped doctrine would clarify and improve Washington’s public trust doctrine, and proposes an analytical framework inspired by that created in Wisconsin’s courts.