Showing papers in "Washington Law Review in 1992"

Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments

Abstract: Whenever a plaintiff sues a defendant for money damages, she runs the risk that the defendant will attempt to render herself unable to satisfy the expected money judgment by hiding or dissipating assets. Although most states have statutes that authorize prejudgment attachment of the defendant's assets to prevent this result, the attachment statutes are poorly designed to reduce the plaintiff's risk. The attachment statutes are both underand over-inclusive: they do not authorize the attachment of property located outside the state, thereby failing to prevent the dissipation of all of the defendant's property, yet they grant the plaintiff a lien in the attached property (a security interest to which she is not entitled) and authorize the attachment of property in the hands of innocent third parties on the plaintiff's word that the property is the defendant's. Courts can reduce the risk of harm to plaintiffs more effectively without interfering with the rights of innocent third parties by granting preliminary injunctions to bar the dissipation of assets. Although courts typically have refrained from issuing preliminary equitable relief in actions in which the plaintiff's final remedy is at law, the reasons for this hesitancy do not obtain in this context. Neither precedent nor the \"no adequate remedy at law\" requirement for equitable relief should dissuade courts from using preliminary injunctions in cases in which the plaintiff can demonstrate that she is likely both to succeed on the merits of her claim and to be unable to collect on her expected money judgment if the defendant is not restrained. INTRODUCTION .......................................... 259 I. THREE KINDS OF HARM .......................... 264 II. PREJUDGMENT ATTACHMENT AND ITS LIMITATIONS IN PREVENTING TERTIARY HARM ... 268 A. Anatomy of a Prejudgment Attachment Statute ..... 270 B. The History of Prejudgment Attachment ............ 271 1. Prejudgment Attachment in the Common Law Courts ......................................... 271 2. Foreign Attachment Under the Custom of London 273 3. The Transformation of Prejudgment Attachment in Early America .............................. 274 C. The Limited Utility of Prejudgment Attachment in Preventing Tertiary Harm .......................... 276 1. Subject Matter Restrictions on Attachment ...... 276 * Associate Professor of Law, University of Pittsburgh School of Law. A.B., Cornell University, 1980; J.D., Yale Law School, 1983. I would like to thank Ron Brand, George Cohen, Harry Flechtner, Susan Koniak, Doug Laycock, Jules Lobel, Dick Seeburger, Howard Stem, and Welsh White for their invaluable comments on an earlier draft of this Article. I would also like to thank Randi Goldman for her diligent research assistance.

The Public Trust Doctrine and Coastal Zone Management in Washington State

Abstract: The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential future developments of this dynamic common law doctrine.

Modern Media and the First Amendment: Rediscovering Freedom of the Press

Abstract: Freedom of the press, like other constitutional guarantees is not an absolute. Nor does it have the same meaning for all media. For more than a century after the constitution was framed and ratified, the press was coextensive with publishing. Over the course of the twentieth century, electronic media have emerged and extended the contours of the press. At the same time, however, liberty of the press has developed in idiosyncratic terms that have fostered a First Amendment hierarchy. While print media continue to be afforded maximum constitutional security, newer communications methodologies have been more susceptible to official management and control. Broadcasting, although the dominant mass medium, is the least protected segment of the press. The diminished First Amendment status of radio and television reflect dubious assumptions about their scarcity and impact that, especially given the advent of even newer media and sources of competition, are increasingly obsolete. As constitutional decisions concerning emerging media represent a forced choice between respective models for print and broadcasting, the risks to traditional concepts of editorial autonomy have compounded. Particularly as the diluted constitutional standards have become accepted for the nation's most pervasive medium, the danger is that oversight rather than freedom will become habitual and normative rather than exceptional. This Article suggests that constitutional and general policy interests would be better served by foregoing balkanization and dilution of First Amendment principles in favor of universal standards reflecting traditional assumptions that minimize official monitoring and management of the press.

Deterring Egregious Violations of Public Policy: A Proposed Amendment to the Model Employment Termination Act

Abstract: The Model Employment Termination Act (Model Act), if enacted by state legislatures, would provide good cause protection to private sector employees. In exchange for this increased job security, the Model Act limits the range of remedies available for wrongful discharges. This Comment compares the remedies available under common law to those embodied in the Model Act and concludes that the Model Act does not adequately deter abusive discharges in violation of public policy. By amending the Model Act to include a capped punitive damages provision for egregious violations of public policy, state legislatures can achieve deterrence without undermining the compromise philosophy of the Model Act. The doctrine of termination-at-will has pervaded the American employment relationship since the 1870s. 1 The doctrine permits a private sector employer to discharge an employee \"for good cause, for no cause or even for cause morally wrong\" without incurring liability.2 Despite widespread scholarly criticism of the doctrine's inequities,' courts and legislatures have been reluctant to completely abolish the long-standing at-will presumption.4 Instead, there has been a gradual, state-by-state erosion of the doctrine of termination-at-will.5 This piecemeal approach has resulted in widely varied state protections and remedies for wrongfully discharged employees. For example, if an employee is fired for filing a workers' compensation claim in Georgia, there may be no basis for recovery.6 By contrast, if that same 1. This conceptualization of the employment relationship as terminable at-wil is often attributed to Horace Wood. His inclusion of this principle in his 1877 treatise led to its widespread adoption in the United States. Sanford M. Jacoby, The Duration of Indefinite Employment Contracts in the United States and England: An Historical Analysis, reprinted in WILLIAM J. HOLLOWAY & MICHAEL J. LEECH, EMPLOYMENT TERMINATION: RIGHTS AND REMEDIES 27-31 (1985). 2. Payne v. Western & Atl. R.R., 81 Tenn. 507, 519-20 (1884), overruled on other grounds, Hutton v. Watters, 179 S.W. 134 (Tenn. 1915). 3. See, eg., Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. Rv. 1404 (1967); Cornelius J. Peck, Unjust Discharges From Employment: A Necessary Change in the Law, 40 OHIO ST. L.J. 1 (1979); Clyde W. Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 VA. L. REv. 481 (1976). 4. In 1987, Montana became the first and only state to legislatively prohibit wrongful discharges. See MONT. CODE ANN. § 39-2-901 to -914 (1991). 5. See infra note 14 and accompanying text. 6. Evans v. Bibb Co., 342 S.E.2d 484 (Ga. Ct. App. 1986).

Persecution on Account of Political Opinion: "Refugee" Status after INS v. Elias-Zacarias , 112 S. Ct. 812 (1992)

Abstract: In INS v. Elias-Zacaria, the Supreme Court examined the definition of "refugee" under the Refugee Act of 1980 and found that harm from refusing to join a guerrilla organization is not "persecution on account of political opinion" as defined under that Act. This decision is incompatible with the intent of the Refugee Act of 1980 and creates onerous burdens of proof for aliens seeking asylum. This Note analyzes the Court's reasoning and concludes that Congress should enact legislation nullifying the Court's decision. "In this area of the law.., we do well to eschew technicalities and fictions and to deal instead with realities. " -Justice Potter Stewart' One evening Jairo Jonathan Elias-Zacarias' family noticed two masked and uniformed men with machine guns lurking outside of their home.2 The men identified themselves as members of the antigovernment guerrilla movement and attempted to persuade EliasZacarias and his family to join their organization.3 Elias-Zacarias and his family repeatedly stated that they did not wish to join the revolutionary movement.4 The masked guerrillas finally left saying that they would be back and the family should "think it [over] well."5 Afraid the guerrillas would return to abduct and kill him, EliasZacarias fled Guatemala and sought asylum in the United States.6 Under the Refugee Act of 1980, the Attorney General has discretion to grant asylum to those aliens who have a "well-founded fear of persecution on account of political opinion."7 The Board of Immigration Appeals found that Elias-Zacarias did not have a "well-founded fear of persecution," and the Court of Appeals for the Ninth Circuit reversed.' In denying Elias-Zacarias relief, the Supreme Court deter1. Costello v. INS, 376 U.S. 120, 131 (1964). 2. Zacarias v. INS, 921 F.2d 844, 847 (9th Cir. 1990), rev'd, INS v. Elias-Zacarias, 112 S. Ct. 812 (1992).

Leaving Your Speech Rights at the Bar— Gentile v. State Bar , 111 S. Ct. 2720 (1991)

Abstract: In Gentile v. State Bar the Supreme Court voided an attorney disciplinary rule regulating trial publicity for vagueness. The Court, however, upheld the substantive standard employed by the rule to identify dangerous speech. This standard restricts more attorney comments to the media than the Court has allowed for the press or public. This Note argues that the standard upheld in Gentile fails First Amendment scrutiny and proposes a response for states reviewing their professional disciplinary rules in light of Gentile. Adoption of this proposal will mitigate the danger of prejudicial trial publicity while recognizing the benefits of attorney publicity. On February 2, 1987, the Las Vegas Metropolitan Police sheriff reported to the media that his undercover drug officers had found four kilograms of cocaine and $300,000 in traveller's checks missing from a sting operation.1 The local press followed the subsequent investigation eagerly, reporting the sheriff's confidence in his officers and the investigation's focus on Grady Sanders. Sanders owned the vault company where the drugs and money were stored. The story became even more sensational over the course of the next year as additional people with drug connections reported money missing from Sanders' vaults. In February of 1988, the prosecutor finally indicted Sanders. On the eve of the prosecutor's announcement, Sanders' attorney, Dominic Gentile, debated his options. On the one hand, after conducting his own investigation, Gentile believed that Sanders was a scapegoat for a corrupt police detective hooked on cocaine. Gentile believed that if he held a press conference to inform the media of his findings, he could stem the flow of negative publicity surrounding Sanders, publicity that had forced Sanders' vault company to close, his other business interests to stumble, and his health to suffer. On the other hand, Gentile realized that a press conference could violate Nevada Supreme Court Rule 177 which limits what attorneys can say to the media out of a concern for prejudice of potential jurors.2 Gentile went forward with the press conference, but in a manner deliberately designed to minimize prejudice to the trial. Gentile limited his comments, giving only the general outlines of his police-corruption defense. He also refused to answer many of the reporters' questions, citing his professional responsibility. 1. Unless otherwise noted, all facts are taken from Justice Kennedy's majority opinion in Gentile v. State Bar, 111 S. Ct. 2720, 2727-30 (1991) (Kennedy, J.). 2. NEv. Sup. CT. R. 177. See infra note 57 for text of the rule. Washington Law Review The local court impaneled a jury in August. None of the jurors had any recollection of Gentile's comments to the media. During the trial, Gentile supported every material allegation he had made in the press conference. The jury acquitted Sanders of all counts. Gentile was not as successful with the State Bar as he was in the courtroom.' After the trial, the State Bar of Nevada filed a complaint against Gentile alleging a violation of Rule 177. The Southern Nevada Disciplinary Board of the State Bar held a hearing on the matter and recommended a private reprimand. Gentile waived the confidentiality of the disciplinary hearing and appealed to the Nevada Supreme Court, which affirmed the findings of the Board. Gentile took his case to the United States Supreme Court. In Gentile v. State Bar,4 the Supreme Court cleared Gentile of the disciplinary charges but upheld the principle that attorneys do not have the same speech rights as the public or the press. Writing for a five-member majority on the issue of vagueness, Justice Kennedy explained that section (c) of Rule 177, a list of exceptions to the general bar on statements to the press, was confusing to the average lawyer and thus the entire rule was void for vagueness.5 However, Chief Justice Rehnquist persuaded four of his colleagues to join him on the issue of the state's power to regulate attorney speech, declaring that the standard employed in the main body of the rule was a legal restriction on speech despite the First Amendment. Unlike the press or the general public, the Chief Justice explained, attorneys can be punished for comments that do not pose a clear and preseat danger to a fair trial.6 This Note argues that states should reject the analysis of the Supreme Court and provide attorneys with the sarae free speech protection as the media and other individuals. Setting Gentile against the background of the Supreme Court's twin goals of free speech and fair trials highlights several inadequacies in the Rehnquist analysis and suggests a proposed response for states reviewing their professional disciplinary rules. Adoption of this proposal will maximize the potential benefits of attorney involvement in trial publicity while respecting the constitutional mandate of fair adjudications.7 3. Gentile, 111 S. Ct. at 2723.