Showing papers in "Washington Law Review in 2001"

Attorney-Client Confidentiality and the Assessment of Claimants Who Allege Posttraumatic Stress Disorder

Abstract: Posttraumatic Stress Disorder (PTSD) was first recognized by the American Psychiatric Association in 1980. A PTSD diagnosis requires an individual or individual's loved ones to have experienced a traumatic event that was a threat to life or physical integrity and caused the individual to react to the incident with a specific number of avoidance, reexperiencing, and hyper-arousal symptoms. Obtaining a PTSD diagnosis can be of great value to a personal-injury plaintiff who claims damages due to a traumatic event. Further, if the traumatic event is unquestioned and the individual reports the classic symptoms, a PTSD diagnosis is relatively easy to apply and difficult to disprove. These plaintiffs will most often be examined and evaluated by mental-health professionals retained by the defendants. The question of whether the claimant was told or provided materials about common PTSD symptoms is crucial to the defense evaluator's accurate PTSD assessment. One source of such information would be plaintiffs counsel, but questions concerning information provided by counsel implicate the attorney-client privilege. This Article suggests that the policy bases underlying the attorney-client privilege and protecting a defendant's right to test the validity of a plaintiff's claims are best served by the creation of a narrowly drawn waiver or exception to the attorney-client privilege. Consistent with the patient-litigant exception to the physician-patient privilege, the proposed exception would be limited to those matters directly related to the nature, diagnosis, and symptoms of PTSD placed in issue by the plaintiff. The exception would also be limited to statements and materials about PTSD symptoms the attorney provided the client. This Article also notes the difficult ethical boundary between an attorney providing essential advice to a client about the nature of emotional and psychological damages versus improper coaching. The proposed exception would help discourage improper coaching and lead to the discovery of any improper coaching that had already occurred. Even where the information provided by the attorney was appropriate from an ethical standpoint, discovery of that information is essential to an accurate diagnosis and fairness to defendants. Recent highly publicized trials and events have once again raised questions in the legal community and general public about attorney conduct and ethics. One area of concern is the extent to which attorneys have overstepped acceptable bounds by (over)zealously representing their clients. The legal system has seen abuses by prosecutors and Professor of Law, University of Washington; J.D., University of Pennsylvania, 1973; B.A., University of Virginia, 1969. Corporate Counsel-Technology, AT&T Wireless Services, Inc.; J.D., University of Washington, 1994; B.A., Stanford University, 1978. Clinical Professor, Department of Psychology, University of Washington; Ph.D., University of Wisconsin, 1972; B.A., University of Pittsburgh, 1967. Washington Law Review lawyers for both plaintiffs and defendants. Because unethical conduct on the part of attorneys most often occurs at the instance or with the consent of the client, it follows that unethical discussions between attorney and client do occur but are at least ostensibly protected by privilege. In such instances, should the opposing party be able to discover, or even introduce at trial, information provided by the attorney to the client? Commentators have suggested a number of situations in which they believe that an exception to attorney-client confidentiality should exist. This Article addresses a relatively recent phenomenon: plaintiffs claiming damages based on allegations of Posttraumatic Stress Disorder (PTSD). Part I indicates the difficulty of accurately diagnosing PTSD, the potential for abuse by claimants in forensic settings, and the psychiatric evaluator's need to know whether the claimant's attorney provided information about PTSD symptoms prior to the evaluation. Part II reviews the historical rationales for the attorney-client privilege, along with the established exceptions and waivers, and concludes that despite the unquestioned value of attorney-client confidentiality, either existing exceptions or a new exception based on overriding policy concerns should be employed to permit the discovery, and possibly the admission, of certain information. Part III establishes the bases and parameters for a narrowly drawn exception for information provided to a PTSD claimant by the claimant's attorney, when such information is necessary for an accurate psychiatric evaluation. Finally, this Article expresses concern that some lawyers may be playing an unethical role by coaching their clients regarding how to present PTSD symptoms to the forensic evaluator. I. See, e.g., Robert P. Mosteller, Child Abuse Reporting Lavs and Attornet'-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 DUKE L.J. 203, 273 (1992) (advocating childabuse reporting as exception to attorney-client privilege); Fred C. Zacharias, Rethinking Confidentialio,, 74 IOWA L. REV. 351, 400 (1989) (suggesting exception to attorney-client confidentiality for harm to third parties); see also Robert Aronson, What About the Children? Are Family Lawyers the Same (Ethically) As Criminal Lawyers, I J. INST. STUD. LEGAL ETHICS 141 (1996). Vol. 76:313, 2001 Confidentiality and Posttraumatic Stress Disorder I. POSTTRAUMATIC STRESS DISORDER: THE DIFFICULTY OF ACCURATE DIAGNOSIS AND THE NEED TO CONSIDER INFORMATION PROVIDED TO CLAIMANTS Posttraumatic Stress Disorder (PTSD) was recognized in 1980 by the American Psychiatric Association in the Third Edition of its Diagnostic and Statistical Manual.2 The diagnosis has undergone revision since that time3 but continues to maintain a basic assumption regarding causation whereby a defined class of traumatic events is linked to a defined class of symptoms.4 Thus, to obtain a PTSD diagnosis, an individual or individual's loved ones must experience a traumatic event that was a threat to life or physical integrity (the Stressor Criterion), and the individual must react to the incident with a specific number of avoidance, reexperiencing, and hyper-arousal symptoms (the Symptom Criteria).' This causal link between the traumatic event and a set of symptoms makes the a PTSD diagnosis particularly attractive in the furtherance of a personal-injury claim. Unlike other psychiatric diagnoses such as depression, where causes may be multiple or even biologically determined with no external precipitant, the cause of PTSD is clarified by the very act of making the diagnosis.6 Soon after the establishment of the PTSD diagnosis, commentators expressed concerns about the potential for abuse in forensic and 2. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS (3d ed. 1980) [hereinafter DSM-IIl]. 3. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 463 (4th ed. rev. 2000) [hereinafter DSM-IV-TR]; AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 424-29 (4th ed. 1994) [hereinafter DSM-IV]; AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 247 (3d ed. rev. 1987) [hereinafter DSM-IIIR]. 4. The DSM-IV-TR provides that \"[t]he essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor.\" DSM-IV-TR, supra note 3, at 463.

Rights, Rights of Action, and Remedies: An Integrated Approach

Abstract: Traditionally, courts equated rights and remedies. Consequently, courts sought to provide remedies for the violation of statutory rights even if a statute did not contain detailed enforcement provisions. In the 1970s, however, the U.S. Supreme Court transformed what had been a unified inquiry into whether a statutory provision should bejudicially enforceable into three distinct questions and developed separate criteria for deciding whether a statute should be read to create a right, imply a right of action, or provide a remedy. Rights, rights of action, and remedies are inextricably related. The Court's attempt to separate these inseparable concepts has led to considerable confusion because decisions focusing on only one part of the equation fail to acknowledge the impact on other parts. Sometimes the Court disguises or actually misstates what it is doing. The Court has been wrong to divide rights, rights of action, and remedies and to develop separate tests to assess each of them. While a return to the traditional standards is impractical, the Court should integrate the separate tests and adopt a single test to answer what is actually a single inquiry: Does the applicable statutory provision entitle the plaintiff to the remedy he or she seeks? In answering that question, the Court should carefully examine statutory language, the overall statutory context, and possible reasons for caution in granting a remedy. INTRODUCTION ........................................................................... 68 I. THE TRADITIONAL STANDARDS AND THEIR DEMISE ..... 71 A. The Traditional Standards ................................................. 71 B. The Modem Standards ....................................................... 83 1. Rights ofAction ............................................................ 87 2. Rights ............................................................................. 91 3. Remedies ........................................................................ 95 II. TOWARD A NEW TEST FOR DECIDING WHETHER A STATUTORY PROVISION SHOULD BE JUDICIALLY ENFORCEABLE ................................................. 105 A. The Casefor a Single, Integrated Standard ........................... 105 1. The Interrelation ofRights, Rights of Action, andRemedies ....................................................... 105 2. Problems Caused by Trying To Separate the Inseparable ................................................................ 109 * Professor of Law, New York Law School. A.B., Amherst College; J.D., Columbia University. The author wishes to thank Brannon Heath, Randolf Jonakait, Richard Matasar, and Edward A. Purcell for their helpful comments on a draft of this Article. Washington Law Review B. Two Models Governing Judicial Enforcement of Federal Statutes ..................................................................... 115 1. The Adversarial Model .................................................... 115 2. The Cooperative Model ................................................... 120 III. A PROPOSED NEW STANDARD AND ITS APPLICATION .................................................................... 123 A. The Language of the Statute .................................................. 126 B. The Overall Statutory Context ............................................... 133 C. Possible Reasons for Caution ................................................ 138 1. Will the Plaintiffs Action, and Others Like It, Be Judicially Manageable? ............................................. 138 2. Will Granting a Private Remedy Interfere with the Remedial Scheme that Congress Expressly Enacted? .......................................................... 141 3. Will Allowing the Plaintiff To Proceed Result in a Flood ofNew Lawsuits? .................................................. 146 CON CLU SION .................................................................................. 147

DNA Typing: Emerging or Neglected Issues

Abstract: DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been

Can Students Sue When Schools Don't Make the Grade? The Washington Assessment of Student Learning and Educational Malpractice

Abstract: Washington's Academic Achievement and Accountability Statute (AAA Statute) creates a statewide system of school accountability. It also requires that all students pass the tenth-grade level of the Washington Assessment of Student Learning standardized test (WASL) to receive a diploma. Unfortunately, when this graduation requirement takes effect in 2008, many students will not receive diplomas because they will be unable to pass the WASL before graduation. Some of these students will have met all local graduation requirements, so the only graduation requirement they will not be able to meet will be the statewide requirement that they pass the WASL. Their WASL failure will show that their school districts failed to educate them to statewide standards either by inadequately instructing them or by allowing them to pass local assessments even though they lacked essential skills. This Comment explores the viability of educational malpractice claims against school districts for compensatory damages for remedial education when students are denied diplomas based only on failing WASL scores. Such claims, based on the AAA Statute, should succeed under the Washington Supreme Court's most recent test for determining the existence of an implied private statutory cause of action. These claims should also overcome other legal and policy barriers that have led Washington and other state courts to reject educational malpractice causes of action. Shelby' has attended public school in the same school district since kindergarten. Although her grades have rarely been above average, she has never failed a grade or a class. When Shelby took the Washington Assessment of Student Learning standardized test (WASL) in her tenthgrade year, she passed only the reading and listening sections, failing the math and writing sections. Shelby's failure shows that, even though she met local graduation requirements, she did not acquire the skills necessary to meet statewide standards. Beginning in 2008, students like Shelby, who cannot pass the WASL before graduation, will not receive a diploma. The WASL is a result of Washington's extensive attempts to improve the quality of its public education system. The Washington Legislature passed the Academic Achievement and Accountability Statute (AAA 1. Hypothetical created by the author for illustrative purposes. Washington Law Review Vol. 76:893, 2001 Statute) in 1999.2 This statute creates both a statewide requirement that all students pass the tenth-grade WASL before graduation3 and a statewide accountability system for schools that fail to produce students who can pass the WASL.4 Washington's public5 high school class of 2008 must pass all sections 6 of the tenth-grade WASL to receive a diploma.' In the 1999-2000 school year, eighty percent of the state's tenth graders failed at least one section.' Given these failure rates, a large percentage of students in the class of 2008 is likely to meet all local requirements 9 yet be unable to pass the WASL before the 2008 graduation date.'° 2. Ch. 388, 1999 Wash. Laws 2142-43 (codified in scattered sections of WASH. REV. CODE §§ 28A.300, .320, .630, .655). 3. WASH. REV. CODE § 28A.655.060(3)(c) (2000). 4. Id. § 28A.655.060(3)(i)(i). 5. Although the legislature did not specifically explain its reasoning, the graduation requirement does not apply to private school students. Id. § 28A. 195 010(6). \"The legislature hereby recognizes that private schools should be subject only to those minimum state controls necessary to insure the health and safety of all the students in the state and to insure a sufficient basic education to meet usual graduation requirements.\" Id. § 28A. 195.010. 6. The Superintendent of Public Instruction must craft the following additional sections before the graduation requirement takes effect in 2008: Science, Social Studies, Art, and Health. Id. § 28A.655.060(3)(b)(iii). 7. WASH. ADMIN. CODE § 180-51-063 (2000). The General Educational Development (GED) credential will probably continue to be an alternative assessment and credential for students who do not receive a high school diploma. Telephone Interview with Rosemary Fitton, Coordinator for Special Projects, Office of the Superintendent of Public Instruction (Apr. 3, 2001). However, GED recipients generally earn less money, experience higher job turnover, and attain less postsecondary education than high school graduates. DAVID BOESEL ET AL., EXECUTIVE SUMMARY: EDUCATIONAL AND LABOR MARKET PERFORMANCE OF GED RECIPIENTS 6-7 (U.S. Dept. of Education 1998). 8. Keith Ervin, Only 1 in 4 Pass Entire 4th-Grade State Test, SEATTLE TIMES, Oct. 21, 2000, at Al. 9. For example, the Tahoma School District requires that students pass twenty-two credits including specific courses in Language Arts, Math, Science, Social Studies, Physical Education, Fine Arts, and Occupational Education. TAHOMA SCH. DIST., 2000-2001 TAHOMA SENIOR HIGH SCHOOL COURSE CATALOG 7 (2000). 10. Students will probably have several chances to pass the Washington Assessment of Student Learning test (WASL) between their tenth-grade year and their expected graduation date. Telephone Interview with Rosemary Fitton, Coordinator for Special Projects, Office of the Superintendent of Public Instruction (Apr. 3, 2001). Remediation services will probably be provided to students who were unable to pass the WASL on their first attempt. Id. However, some educators have expressed concern that many students in the class of 2008 who scored poorly on their fourth grade WASL will be unable to pass the tenth-grade WASL by graduation. Hunter T. George, Delay New Requirements for Diplomas, Lawmakers Told, SEATTLE TIMES, Feb. 20, 2001, at B4. Furthermore, sixteen is both the legal dropout age in Washington and the age at which students will first learn of their tenth-grade test results. See WASH. REV. CODE §§ 28A.225.010(l)(e), 28A.655.060(3)(c) (2000). Students who fail the test may drop out, believing they will not receive a diploma. Educational Malpractice Should students who meet all local graduation requirements, but fail to pass the WASL, recover compensatory damages from their school district to pay for remedial education?\" Student suits for educational malpractice may arise when a school district fails to educate students to WASL standards by inadequately instructing them or by allowing them to pass local assessments even though they lack essential skills.'\" In order to establish a successful claim for educational malpractice based on a state statute that contains no express cause of action, a plaintiff must show that a cause of action was implied by the law. 3 In addition, courts have traditionally insisted that plaintiffs show a workable standard of care against which a court could measure school performance, a concrete and assessable harm, and a causal connection between the school district's failure and the injury claimed. 4 Finally, the plaintiff must overcome traditional policy barriers, including hesitation to interfere with the daily judgment of school officials 5 and fear of opening floodgates of litigation against school districts. 6 This Comment argues that students in the class of 2008 and beyond who are denied a diploma solely because they are unable to pass the WASL should be able to sue their school district and recover compensatory damages for educational malpractice under the AAA Statute. Part I describes the AAA Statute, which creates both the graduation requirement and a system through which the state evaluates school performance based on its students' WASL scores. Part II outlines the test that Washington courts use to determine whether an implied individual cause of action exists under a state statute. Part III describes traditional law and policy shields that courts have used to protect school districts from educational malpractice causes of action. Part IV argues that the AAA Statute creates an implied private cause of action for individual students and that those students should also be able to 11. Any aggrieved party may maintain an action against a school district for an injury arising out of a district's act or omission. WASH. REV. CODE §§ 4.08.110-.120 (2000). 12. A student may choose to sue the State of Washington under a variety of other theories including a challenge to the validity of the WASL test. Such claims are outside the scope of this Comment. 13. See Camer v. Seattle Sch. Dist., 52 Wash. App. 531, 536, 762 P.2d 356, 360 (1988). 14. See, e.g., Peter W. v. San Francisco Unified Sch. Dist., 131 Cal. Rptr. 854, 861 (Cal. Ct. App. 1976). 15. Donohue v. Copiague Union Free Sch. Dist., 391 N.E.2d 1352, 1354 (N.Y. 1979). 16. Peter W., 131 Cal. Rptr. at 861. Washington Law Review overcome traditional legal and policy barriers to educational malpractice claims. I. THE AAA STATUTE CREATES A SYSTEM THAT MEASURES STUDENT PERFORMANCE AND HOLDS SCHOOLS ACCOUNTABLE FOR STUDENT LEARNING The Washington State Constitution mandates that the state fund basic education for all children in Washington, but the Washington Supreme Court has not interpreted the mandate to require that public education rise to a particular level of adequacy.' 7 However, since the early 1990s the Washington State Legislature has been developing a system of school accountability that relies on statewide standardized tests. The AAA Statute measures school performance by the WASL scores and holds school districts accountable for student failure as measured by those scores.'8 Furthermore, the AAA Statute requires that all students pass the tenth-grade WASL as a prerequisite for graduation.' 9 A. The Washington Constitution Supports the AAA Framework by Creating a Student Right to a Public Education Article IX of the Washington Constitution establishes a student right to a public education.\"° It declares that the state has a \"paramount duty\" to make \"ample provision for the education of all children\" by creating a \"general and uniform system of public

The Reasonable Girl: A New Reasonableness Standard to Determine Sexual Harassment in Schools

Abstract: The U.S. Supreme Court held in Davis v. Monroe County Board of Education that schools may be liable under Title IX of the 1972 Education Amendments for student-tostudent hostile-environment sexual harassment. Although the Court required that conduct be severe, pervasive, and objectively offensive to qualify as sexual harassment under the statute, it did not establish an objective reasonableness standard to evaluate allegedly harassing conduct. In the context of Title VII employment-discrimination jurisprudence, some courts apply a reasonable-woman standard to determine what conduct is objectively hostile or abusive such that it constitutes actionable hostile-environment sexual harassment in the workplace. This Comment argues that a reasonable-girl standard, which is an amalgamation of reasonable-woman precedent and the reasonable child from tort law, is consistent with previous U.S. Supreme Court interpretations of Title IX. This Comment further contends that courts should adopt the reasonable-girl standard because it will further girls' equal educational opportunities, thereby serving the goal of Title IX. In February of 2000, a thirteen-year-old girl in Federal Way, Washington, filed a complaint against Kilo Junior High School for failing to prevent a classmate from repeatedly accosting her in the school's hallways and reaching under her clothing to grope her.' The school had responded to the girl's complaint of harassment by having her confront her alleged perpetrator, whom she feared, and eventually suggesting that she leave the school district, which she did.2 The school never punished the perpetrator? The experience caused the girl's grades to suffer and left her feeling as though she had no friends.4 This thirteen-year-old girl is not alone. Despite studies chronicling the prevalence of sexual harassment in schools and its adverse effects on girls, including reduced academic performance and damaged emotional well-being,5 the U.S. Supreme Court has not yet established an objective standard that schools and courts can use to determine what types of conduct rise to the level of sexual harassment. Consequently, Kilo Junior 1. Nancy Bartley & Lisa Pemberton-Butler, Student's Suit Blames School for Harassment, SEATrLE TIMES, Jan. 19,2000, at Bl.

Fire Sale? The Admissibility of Evidence of Environmental Contamination to Determine Just Compensation in Washington Eminent Domain Proceedings

Abstract: Jurisdictions across the United States are split on the issue of whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. Jurisdictions that admit this evidence reason that environmental contamination is a property characteristic that necessarily affects the value of the property. Those that exclude the evidence cite procedural due process concerns and the risk of extra liability for the landowner. Washington's Model Toxics Control Act (MTCA) establishes a system of assigning liability and recovering cleanup costs for environmental contamination. No Washington court has addressed whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. This Comment argues that, under MTCA and Washington eminent domain law, the evidence should not be admitted, because its admission (1) would violate the prohibition in Washington eminent domain law against speculative evidence, (2) would infringe upon the procedural due process rights of landowners under MTCA, and (3) may result in additional liability on the part of the landowners and extra recovery on the part of the condemning authority. The Smith family owns a small, independent service station alongside a Washington highway, selling gasoline and services to motorists who pass by.t Recently, motorists using the highway have increased in number, and the Smiths are delighted to see business booming. However, the increase in traffic has also put pressure on the highway system, and it is clear that the two-lane, winding country road is no longer sufficient. State officials have determined that the only solution is to widen the highway to four lanes. Unfortunately, the Smiths' service station is in the path of the planned highway expansion. The Smith family soon receives notice that their property is needed for the highway project, but that they will receive fair market value for the land. Unbeknownst to the Smiths, the land beneath the service station has become a small environmental catastrophe. As appraisers for the State investigate the land to determine its fair market value, they discover that the underground fuel storage tanks are leaking and have been doing so for years. Accordingly, the appraisers come up with a market value for the land that is significantly less than it would be without the newly discovered contamination. Meanwhile, officials from Washington's 1221 1. Hypothetical created by the author. Washington Law Review Department of Ecology (DOE) have begun an investigation of their own, with the ultimate intention of holding the Smiths liable for the costs of cleanup under Washington's environmental cleanup statute. Two legal forces have collided on this Washington highway at the intersection between modem environmental regulations and traditional eminent domain law, leaving the Smiths and their family business as the unwitting victims. Under traditional eminent domain principles, an entity that takes land through the exercise of eminent domain must pay a landowner \"just compensation,\"' which is generally deemed to be the fair market value of the land, based upon all of the \"elements reasonably affecting value.\"3 Certainly, environmental contamination is a characteristic that affects the market value of land. On the other hand, Washington's environmental cleanup statute, the Model Toxics Control Act (MTCA),4 makes liability strict, joint, and several,' and holds past and current landowners alike liable for cleanup.6 Hence, the Smiths find themselves in the position of receiving less value for their land, while concurrently being held responsible for the cleanup of the contamination. Jurisdictions across the United States are split on the issue of whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain action. Some courts have determined that environmental contamination is a property characteristic that bears upon the land's market value.' Therefore, those courts deem evidence of contamination admissible.' Courts in other jurisdictions have concluded that adjudicating the issue of environmental contamination in an eminent domain proceeding raises various troubling issues, including procedural due process concerns and the risk of double liability for the landowner.9 Therefore, these courts hold that the evidence should be excluded.\"0 Thus far, no Washington court decision has addressed this issue. 2. U.S. CONST. amend. V; WASH. CONST. art. I, § 16. 3. In re Town of Issaquah, 31 Wash. 2d 556, 564, 197 P.2d 1018, 1022 (1948). 4. WASH. REV. CODE § 70.105D (2000). 5. Id. § 70.105D.040(2). 6. Id. § 70.105D.040(1); see also infra note 62 and accompanying text. 7. See infra Part III.B. 8. See infra Part III.B. 9. See infra Part III.A. 10. See infra Part III.A. 1222 Vol. 76:1221, 2001 Environmental Contamination and Eminent Domain This Comment argues that, under Washington law, evidence of environmental contamination should not be admissible to determine just compensation in an eminent domain proceeding. Part I provides an overview of eminent domain law in Washington, covering its statutory basis, procedural aspects, and judicial interpretation, with particular attention to what constitutes just compensation. Part II discusses MTCA, and gives a synopsis of the relevant regulatory procedures the DOE has enacted. Part I outlines the current state of jurisprudence on the issue of admitting evidence of environmental contamination in eminent domain proceedings in jurisdictions across the United States. Finally, Part IV argues that, given the current state of the law in Washington, evidence of environmental contamination is inappropriate in an eminent domain proceeding because (1) it would violate the prohibition in Washington eminent domain law against speculative evidence, (2) it would infringe upon the procedural due process rights of landowners under MTCA, and (3) it may result in extra liability on the part of the landowner and extra recovery on the part of the condemning authority. I. EMINENT DOMAIN LAW IN WASHINGTON STATE Eminent domain is the inherent power of a government to take private property for public use.\" The power of governmental entities to take property through the exercise of eminent domain is limited by the federal and state constitutions.1 Every eminent domain proceeding includes a determination that the property will be used for public purposes, and an assessment of just compensation to the owner.'3 Just compensation is defined as the fair market value of the property, or what a willing buyer would pay a willing seller for the property in an open-market transaction.'4 Washington courts rely on numerous valuation methodologies to determine fair market value.' 5 11. BLACK'S LAW DICTONARY 541 (7th ed. 1999). The exercise of the eminent domain power is frequently referred to as \"condemnation.\" 17 WILLUAM B. STOEBUCK, REAL ESTATE: PROPERTY LAW, in WASHINGTON PRACTICE, § 9.1 (1995). 12. U.S. CONST. amend. V; WASH. CONST. art. 1, § 16. 13. See infra Part I.B. 14. In reTown of Issaquah, 31 Wash. 2d 556, 564, 197 P.2d 1018, 1022 (1948). 15. See infra Part I.C.1.

The Equal Pay Act as Appropriate Legislation under Section 5 of the Fourteenth Amendment: Can State Employers Be Sued?

Abstract: Congress may constitutionally abrogate state sovereign immunity only through legislation enacted pursuant to Section 5 of the Fourteenth Amendment to the U.S. Constitution. In Kimel v. Florida Board of Regents, the U.S. Supreme Court held the Age Discrimination in Employment Act to be inappropriate Section 5 legislation. Kimel was the first time the Court held an anti-discrimination statute enacted to protect civil rights inapplicable to the states. Based on the Kimel decision, other civil rights statutes, such as the Equal Pay Act (EPA), may face similar challenges. This Comment argues that the EPA is appropriate Section 5 legislation. Unlike recent statutes struck down as inappropriate Section 5 legislation, the EPA does not grant plaintiffs more substantive rights than the Constitution. The EPA is a narrowly tailored statute enacted to prevent gender-based wage discrimination that violates the Fourteenth Amendment. Congress reviewed substantial evidence of genderbased wage discrimination by state employers before it enacted the EPA. Based on this evidence, Congress enacted the EPA to provide a remedy for such prevalent discrimination. Courts should find that the EPA is appropriate legislation under Section 5 to enforce the substantive guarantees of the Fourteenth Amendment's Equal Protection Clause. In 1960, three years before Congress enacted the Equal Pay Act (EPA),' women annually earned, on average, sixty-one percent as much as men.2 Factors that partially explained the wage differential included lack of employment opportunities for women and the historical tendency to push women into lower-paying administrative and secretarial positions.' However, those factors do not explain why men and women employed in the same occupations were paid differently.4 After eighteen months of hearings,5 including testimony from working women and leaders of American industry, Congress enacted the EPA to remedy the serious problem of gender-based wage discrimination in the private sector.6 1. Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (codified as amended at 29 U.S.C. § 206(d)(1) (1994)). 2. MICHAEL J. ZIMMERETAL., EMPLOYMENT DISCRIMINATION 973 (4th ed. 1997).