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 86
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Issue 1
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February 2011
The Deepwater Horizon Oil Spill and the Limits of Civil Liability
Ronen Perry
86 Wash. L. Rev. 1
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Full Article
This Article uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The Article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case.
Part I systematically discusses pre-OPA law. It focuses mainly on two salient features of the Exxon Valdez litigation, namely exclusion of liability for purely economic losses, and punitive damages. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime.
Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. This article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution.
Promoting Democracy in Prosecution
Russell M. Gold
86 Wash. L. Rev. 69
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Voters were meant to check prosecutors’ decisions, but that check has eroded because voters lack the information necessary to cast meaningful votes in prosecutor elections. Voters’ lack of an effective political check on prosecutors causes two related problems: (1) inefficient allocation of prosecutorial resources and (2) divestment of democratic sovereignty from the people. Prosecutors currently need not consider expenditures for incarceration or public defense because voters never see these costs and thus cannot hold their prosecutors accountable for them. Accordingly, these costs become an externality in the prosecutorial decision-making process, causing prosecutors to spend resources in socially inefficient ways. To reinvigorate the political check on prosecutors, this Article proposes requiring state and local prosecutors to disclose costs of all prosecuted cases and all cases not prosecuted in which an arrest was made and sufficient evidence existed. Such disclosures would sweep broadly to include prosecutors’ wages, public defense costs, and incarceration costs in cases resulting in a conviction. Voters would then have concrete, monetized evidence of prosecutorial priorities. This greater information flow would allow voters, through the ballot box, to meaningfully supervise their prosecutors’ exercise of delegated sovereign authority. Knowing that voters wield this information, prosecutors would then internalize this externality by taking these previously disregarded costs into account when they determine whether to charge crimes, what crimes to charge, and what sentences to recommend. Creating a mechanism that urges prosecutors to consider this broader set of costs would promote a more socially efficient outcome. Finally, this Article considers what an efficient allocation of prosecutorial resources might look like. It postulates that many constituencies would rather spend less on small-scale drug prosecutions to save cash-strapped state budgets.
The Path Out of Washington's Takings Quagmire: The Case for Adopting the Federal Analysis
Roger D. Wynne
86 Wash. L. Rev. 125
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A quagmire awaits anyone attempting to understand the analysis Washington courts employ to determine whether government action constitutes a “taking” of property for which compensation is due under the U.S. Constitution. The Washington takings analysis is complex and confounding, especially when compared to the relatively straightforward takings analysis established by the U.S. Supreme Court. This Article argues that the Washington State Supreme Court should reject the Washington takings analysis and adopt the federal analysis. Comparing the federal and Washington analyses underscores how, as a matter of form, the Washington analysis easily stymies those who must work with it. Substantively, the Washington analysis is unfounded on three key levels: (1) the existence of differences between the two analyses fatally undermines the Washington analysis; (2) the nature of those differences renders the Washington analysis constitutionally insufficient by lowering the floor of protection that property owners enjoy under the federal analysis; and (3) the differences do not enhance the federal analysis. Rejecting the Washington takings analysis in favor of the federal analysis would be consistent with the doctrine of stare decisis because the Washington State Supreme Court originally intended to harmonize Washington and federal takings law, even though the Court failed to implement that intent. When embracing the federal takings analysis, the Court should avoid mischaracterizations of the federal takings analysis and the temptation to justify the Washington analysis on independent state constitutional grounds for the first time.
The McCarran Amendment and Groundwater: Why Washington State Should Require Inclusion of Groundwater in General Stream Adjudications Involving Federal Reserved Water Rights
Aubri Goldsby
86 Wash. L. Rev. 185
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All water is connected through the hydrologic cycle.1 When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater, 2 the law often treats the two separately.3 The legal choice to ignore the interaction of surface and groundwater is particularly notable in “general stream adjudications.” States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source.4 In 1952, Congress passed the McCarran Amendment, which allows states to adjudicate federal reserved water rights in state court in general stream adjudications.5 The United States Supreme Court has interpreted the Amendment as requiring that adjudications be “comprehensive” of all of the rights in a given water source, but has not yet ruled as to whether this requires inclusion of groundwater users.6 The Amendment itself is equally vague on this point. This Comment argues against Ninth Circuit precedent and asserts that for a general stream adjudication to be “comprehensive” under the McCarran Amendment, it must include users of hydrologically connected surface and groundwater.