Gonzaga Law Review

Gonzaga Law Review, Issue 44:3

Kristen L. Fraser, Grasping for the "Elephant in the Courthouse": Developments in Washington's Law of Law-Making
Ms. Fraser's prior article, Method, Procedure, Means & Manner: Washington's Law of Lawmaking, 39 Gonz. L. Rev. 447 (2004), surveyed the constitutional, legal, and parliamentary principles that govern the process of lawmaking in Washington. In the five years since that article was published, the Washington Supreme Court has decided a number of landmark decisions regarding the law of  lawmaking in Washington. However, the court has resolved these cases on statutory or procedural grounds, and in doing so, has dodged a number of constitutional controversies of interest to the legislature. A concurring opinion in one such case pointed out that the court cannot continue to avoid the "elephant in the courthouse"-the constitutional structure of our representative democracy, the structure that underpins any controversy relating to the law of law-making.

In these difficult cases, the various actors-- the voters in their legislative capacity, the legislature as a lawmaking body, and the court system exercising judicial review-- have struggled to define their Constitutional role in the legislative process.  Ms. Fraser draws the apt comparison between the state actors and the blind men encountering an elephant in the well-known Eastern parable. In that parable, each of the blind men touches a different part of an elephant and each concludes it to be something completely different depending upon the part grasped: a tree, rope, wall, spear, snake, or fan. Yet none of the men have an adequate understanding of what they have truly encountered. Like the blind men in that parable, constitutional actors in Washington have often defined their respective roles in the state's law-making process without recourse to the entirety of the beast-the state Constitution as interpreted by the other state actors--and thus their conception of the law-making process is inadequate.

Ms. Fraser's article surveys several recent cases, which suggest that the nuances of one branch's interpretation of the Constitution may not be immediately apparent to the other actors involved in the lawmaking process. The article argues that lawmakers from all branches-legislators, courts, and the voters-must do a better job of defining their Constitutional roles and describing these roles to their colleagues so that a better picture may emerge of the elephant as a whole-the Washington Constitution.

Daniel Austin Green, Whither and Whether Auditor Independence
Mr. Green's essay examines the role of public accounting in corporate governance, and places particular emphasis on the standard of "independence" employed by auditors of financial statements.  In the wake of numerous accounting scandals in recent years and the pressing need for financial intermediaries, this essay reevaluates the fundamental assumptions of auditing regulation by discussing how auditor independence is understood within the accounting and auditing profession and academic literature. 

This essay highlights both empirical evidence and a theoretical perspective of auditing that illustrate the potential misguidance of assuming independence.  Although arguments exist for auditor "dependence" on grounds of economic efficiency, Mr. Green goes one step further by arguing that, in addition to efficiency benefits, the quality of an audit may be improved by non-independence.  Instead of offering a sweeping reform of independence itself, Mr. Green contends that a system of Financial Statement Insurance (FSI) could provide an effective bypass to the interdependence problem by positioning insurers to take on a more robust financial intermediary role. 

Troy Daniels & Richard A. Bales, Plus at Pretext: Resolving the Split Regarding the Sufficiency of Temporal Proximity Evidence in Title VII Retaliation Cases
Mr. Daniels and Mr. Bales address the current federal circuit split regarding the evidentiary value of temporal proximity evidence when an employer fires an employee within weeks or a few months after the employee engaged in protected activity. 

Currently, seven circuits have adopted the Temporal Proximity Alone Approach, which views temporal proximity evidence as sufficient, standing alone, to establish the causal connection element of a plaintiff's prima facie case.  Three other circuits have adopted the Temporal Proximity Plus approach, which requires that temporal proximity be combined with other evidence before it can establish the causal connection element.  Although acknowledging the lack of uniformity, the Supreme Court has yet to grant certiorari. 

Mr. Daniels and Mr. Bales propose an insightful "Plus at Pretext" approach which would require Temporal Proximity Alone at the prima facie case stage of the analysis, but require Temporal Proximity Plus at the pretext stage.  By maintaining a relatively light burden on discrimination plaintiffs at the prima facie case stage of proof while imposing a heavier burden at the pretext stage, this novel approach has the potential to resolve the competing policy arguments and neatly reconcile existing case law. 

Kevin Zeck, Referential Fair Use & Keyword Advertising: The Necessity of Product Placement to our Domestic System of Free-Market Enterprise
Mr. Zeck's comment tackles the issue of keyword advertising and trademark infringement.  Keyword advertising, a form of internet marketing, occurs where a merchant pays an internet search engine, such as Google, to display an advertisement in response to a web user's search query.   According to Mr. Zeck, a review of federal case law concerning keyword advertising reveals that courts have largely abandoned the basics of trademark law and built precedent upon precedent without considering the underlying nature of internet advertising.  As a result, some federal courts have created a body of trademark law that is overreaching in scope.  In creating this body of unbalanced law, these courts have used the spacious language of the Lanham Act's infringement provisions to stop what they perceived as unfair competition practices.

In pursuit of clarity regarding keyword advertising, Mr. Zeck first examines the mechanics of keyword advertising and internet search engines.  He then considers the basic legal framework of trademark protection, as well as the policies underlying trademark law.  From there, Mr. Zeck sets forth the current legal landscape concerning keyword advertising by considering the current split in federal case law.  He then shows that keyword advertising is a "use in commerce" under the Lanham Act by reviewing the textual language of the Lanham Act and the Senate Judiciary Committee's Report on the 1988 Amendments to the Lanham Act.  After acknowledging that keyword advertising is a "use in commerce," Mr. Zeck argues that almost anything concerning the use of a mark in commerce could be actionable under the Lanham Act, but that the interpretation of the Lanham Act should be confined by tying its protections to the fundamental purposes of trademark protection.  Finally, Mr. Zeck considers the similarity between legal "product placement" practices and keyword advertising, and contends that uses of a mark, akin to product placement, should not be actionable under the Lanham Act. 

Ryan Ellersick, Perpetuating the Constitutional Uncertainty of Lethal Injection Protocols: A Comment on Baze v Rees
Mr. Ellersick explores the Supreme Court's latest decision on the issue of the Constitutionality of lethal injection protocols in this insightful article.

In the lead-up to the Supreme Court's decision in Baze v. Rees, lethal injection litigation had overwhelmed the lower courts.  Inmates were challenging the widely used three-drug execution protocol based on the risk of maladministration.  Unfortunately, the Supreme Court had not articulated a standard to assist the lower courts in determining whether the various states' execution protocols constituted cruel and unusual punishment under the Eighth Amendment.  As a result, lower courts developed divergent standards based on obscure and outdated precedents-subjecting inmates to a deadly luck of the draw. 

The Court accepted Baze intending to resolve the chaos in the lower courts by providing a workable, uniform test.  However, only three Justices agreed upon the standard that ultimately emerged in the plurality opinion.  Mr. Ellersick's comment highlights the inconsistencies and undefined key phrases in the plurality opinion which, despite the Court's intentions, will likely leave the plurality's standard open to divergent interpretations in the lower courts.  Mr. Ellersick also examines how the Court's inability to command a majority renders the precedential value of the plurality opinion an open question.  Because of these failings, Mr. Ellersick concludes that the Court's decision in Baze will do little to resolve the confusion in the lower courts brought on by a steady torrent of lethal injection challenges.

Publication Schedule & Submissions

Gonzaga Law Review is published three times a year in Spokane, Washington. The Review is a scholarly journal dedicated to the analysis of current legal issues.

Gonzaga Law Review encourages the submission of unsolicited articles, notes, and comments on areas of law that may be of interest to the legal profession.

• We accept submissions on an ongoing basis.
• All citations should conform to The Bluebook: A Uniform System of Citation (18th ed. 2005).
• It is the policy of the Gonzaga Law Review to support and further the use of gender-neutral language.
• Gonzaga Law Review reserves the right to determine the final form in which the articles will be published.
• We regret that manuscripts cannot be returned.

Please send manuscripts to:

lawreview@lawschool.gonzaga.edu

Or mail to:

Editor in Chief
Gonzaga Law Review
Gonzaga University School of Law
PO Box 3528
Spokane, WA 99220-3528

Copyrights

Except as otherwise provided, Gonzaga Law Review permits copies of all articles to be used for classroom use under the following conditions:

• Copies are distributed by the user at or below cost
• The author and Gonzaga Law Review are clearly identified on each copy
• Gonzaga Law Review is notified of the use in advance.

NOTE: Gonzaga Law Review reserves the right to deny any use of articles when such use does not meet the above requirements. Gonzaga Law Review also reserves the right to deny any use of articles which, although in technical compliance with the above requirements, may adversely affect the professional reputation of Gonzaga Law Review or Gonzaga University School of Law.

Top of Page