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 2
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May 2011
Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law
H. Jefferson Powell
86 Wash. L. Rev. 217
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Full Article
Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators’ political views on the desirability of the Court’s recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court’s assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court’s inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts’s opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court’s treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law.
The Two Versions of Rational-Basis Review and Same-Sex Relationships
Robert C. Farrell
86 Wash. L. Rev. 281
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Full Article
Although it purports to be a single standard, equal protection’s rational-basis review has two faces that use different methods and produce conflicting results. The United States Supreme Court employs both versions but does not acknowledge that a conflict exists between them. Without an explicit acknowledgment of the contradictory nature of the two rationality reviews, it follows that the Court has made no effort to explain in what context one version should be used and in what context the other is appropriate. As a result, it is very difficult to predict with accuracy the outcome of arguments based on equal protection’s rational-basis review in the lower courts because no matter which side a court picks, it can find U.S. Supreme Court precedents to support the result. In recent years, this problem of unpredictability has been particularly acute in cases challenging laws that disadvantage persons involved in same-sex relationships. Because rational-basis review is ordinarily deferential to legislative judgment, these challenges usually fail. There is, however, a core of successful rational-basis claims that involve a more demanding scrutiny and seem to contradict the results in the more typical cases. This creates unpredictability. This Article examines this duality in three factual settings: (1) state laws that define marriage as limited to a man and a woman, (2) the United States military’s policy of excluding gays and lesbians from military service, and (3) the federal Defense of Marriage Act, which limits federal recognition of marriage to opposite-sex couples.
Eastwood’s Answer to Alejandre’s Open Question: The Economic Loss Rule Should Not Bar Fraud Claims
Katherine Heaton
86 Wash. L. Rev. 331
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Full Article
The economic loss rule is a judicially created doctrine that bars plaintiffs from suing in tort for purely economic losses when the entitlement to recovery arises only from a contract. In Alejandre v. Bull, the Washington State Supreme Court acknowledged that there are exceptions to the rule but explicitly declined to say whether it would recognize an exception for fraud. Washington’s appellate courts answered Alejandre’s open question, holding that the economic loss rule barred all fraud claims except for the narrow tort of fraudulent concealment. The appellate courts interpreted Alejandre broadly to apply the economic loss rule whenever the parties had a contractual relationship and the losses were purely economic. The Washington State Supreme Court responded to these appellate decisions in Eastwood v. Horse Harbor Foundation. In Eastwood, the Court explicitly rejected the appellate courts’ broad view of Alejandre and held that the economic loss rule does not bar a plaintiff from bringing a tort claim where the tort duty is independent of the contract. This Comment argues that, in light of Eastwood, Washington’s economic loss rule should not bar fraud claims because the duty not to commit fraud is independent of any contract.
Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure Litigation
Rebecca Leah Levine
86 Wash. L. Rev. 359
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Since 2005, take-home asbestos exposure claims have constituted a new wave of asbestos litigation. In contrast to employees exposed to asbestos at a worksite, take-home exposure occurred among those affected by employees who inadvertently carried asbestos home on their clothing or their tools. While some jurisdictions have rejected these claims on the basis that the defendant did not owe a legal duty to the plaintiff, the Washington Court of Appeals recently recognized the potential validity of a household member’s claim for relief for the harm he or she suffered as a result of asbestos exposure. In doing so, the court applied an ordinary negligence test and examined the foreseeability of the harm to the plaintiff as the primary step in determining whether the defendant owed the plaintiff a legal duty. Although the Washington State Supreme Court has no precedent governing takehome asbestos exposure claims specifically, the courts of appeals’ reasoning comports with Washington negligence law. Accordingly, Washington courts should apply this ordinary negligence test in future take-home asbestos exposure cases.
Open for Trouble: Amending Washington’s Open Public Meetings Act to Preserve University Patent Rights
Vladimir Lozan
86 Wash. L. Rev. 393
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Full Article
Times have changed. Science is no longer “a perfect working model of democracy,” so transparent that it does not need supervision by outsiders.1 Instead, science is now regulated at the federal and state level. At the federal level, laws and regulations require peer review meetings for research at state public universities to ensure compliance with federal funding mandates. At the state level, the Washington Open Public Meetings Act (OPMA) requires that peer review meetings at state universities be open to the public. When a scientist presents during one of these peer review meetings, the state university may lose patent rights because the presentation may contain intellectual property information that, once made public, forfeits patentability. This is certainly true for foreign patent rights and, in more limited circumstances, also true for rights under United States patent law. Though OPMA has exemptions that allow for closed sessions to discuss sensitive information, these exemptions do not encompass patent rights. This scheme conflicts not only with foreign and federal patent law goals, but also with the Washington Public Records Act (PRA). This Comment argues that OPMA should be amended to preserve a state university’s patent rights, consistent with patent law goals and the PRA.