Law Commons^™

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …

After Affirmative Action, Meera E. Deo

Seattle University Law Review

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Wage Recovery Funds, Elizabeth Ford

Faculty Articles

Wage theft is rampant in the US. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft – charging government agencies with enforcing the law -- has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties. This is a bad deal for workers, but not just because they do not get …

Silver And Old: How Emtala's Outdated Appropriate Medical Screening Standard Impacts The Aging Population, Madisyn Uekawa

Seattle University Law Review

With the U.S. elder population on the brink of booming, attention to the ramifications of legal standards that affect them is a must. In 2018, the Sixth Circuit split from its sister circuits and solidified an interpretation of the Emergency Medical Treatment and Labor Act’s (EMTALA) “appropriate medical screening” standard that will adversely affect aging individuals. Since older adults are the most likely demographic to use emergency care services, laws that impact emergency care will inevitably trickle down to this group of people. To protect already vulnerable older adults, EMTALA should be modified in such a way that (1) it …

Family Law's Coldest War: The Battle For Frozen Embryos And The Need For A Statutory White Flag, Mary Joy Dingler

Seattle University Law Review

Without concrete legislative guidance, courts are left to a variety of unsatisfactory methods of determining the disposition of frozen embryos in dissolutions and custody disputes. Beginning in 1992, courts have been issuing problematic rulings that are reached through the application of three approaches: (1) the balancing-interests test; (2) the contemporaneous mutual consent approach; and (3) the contractual approach. These approaches are examined in this Comment through the lens of selected cases and the largely inequitable outcomes for parties are critiqued. Courts even lament the lack of statutory guidance in deciding these disputes but are resigned to employing these largely flawed, …

Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley

Seattle University Law Review

An introduction to the Berle X symposium, honoring William W. (Bill) Bratton.

Adolf Berle During The New Deal: The Brain Truster As An Intellectual Jobber, Robert B. Thompson

Seattle University Law Review

Adolf Berle’s ideas have attained a remarkable longevity in corporate law with an influence exceeding that of any other twentieth century law professor. Participants in the now ten Berle symposia often have framed the discussion of his career as an intellectual history, usually built around the powerful transformative effect of The Modern Corporation and Private Property (MCPP). Yet this approach is insufficient to explain large parts of Berle’s professional career, including what Berle did during the twelve years of the Roosevelt Administration that immediately followed MCPP. This Article offers an alternative focus that better accounts for the career of an …

Corporate Lessons For Public Governance: The Origins And Activities Of The National Budget Committee, 1919–1923, Jesse Tarbert

Seattle University Law Review

There is a peculiar disconnect between the way specialists view the 1920s and the way the decade is understood by non-specialists and the general public. Casual observers tend to view the 1920s as a conservative or reactionary interlude between the watershed reform periods of the Progressive Era and New Deal. Although many scholars have abandoned the traditional view of the 1920s, their work has not yet penetrated the generalizations of non-specialists. Even readers familiar with specialist accounts portraying the New Era as the age of “corporate liberalism” or the “Associative State” tend to view these concepts as just another way …

Collected Lectures And Talks On Corporate Law, Legal Theory, History, Finance, And Governance, William W. Bratton

Seattle University Law Review

A collection of eighteen speeches and lectures, from 2003 to 2018, discussing and expanding on the writings and theories of Adolf Berle and Gardiner Means.

Quasi Governments And Inchoate Law: Berle’S Vision Of Limits On Corporate Power, Elizabeth Pollman

Seattle University Law Review

This Berle X Symposium essay gives prominence to distinguished corporate law scholar Adolf A. Berle, Jr. and his key writings of the 1950s and 1960s. Berle is most famous for his work decades earlier, in the 1930s, with Gardiner Means on the topic of the separation of ownership and control, and for his great debate of corporate social responsibility with E. Merrick Dodd. Yet the world was inching closer to our contemporary one in terms of both business and technology in Berle’s later years and his work from this period deserves attention.

“All Lawyers Are Somewhat Suspect”: Adolf A. Berle And The Modern Legal Profession, Harwell Wells

Seattle University Law Review

Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This Article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would …

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

Doing Deals With Aristotle—Today, Chapin F. Cimino

Seattle University Law Review

This analysis proceeds in six steps. In Part I, this Article sets the stage by describing the problem: while contracting behavior is increasingly complex, contract law and theory remain stubbornly uni-faceted. That is, while contracting and contractors are ever more modern, contract law and theory are ever more traditional. The greater the divide, the less useful contract theory is to contract law, and the less useful contract law is to contractors. This trend does not bode well for the future of contract law or theory. The question is how much of a crisis contract law will have to endure before …

Social Justice And Capitalism: An Assessment Of The Teachings Of Pope Francis From A Law And Macroeconomics Perspective, Steven A. Ramirez

Seattle University Law Review

The first part of this Article will synthesize the key teachings of Pope Francis from his most important statements on economic structures and social justice and situate these teachings within contemporary economic realities and traditional social justice teachings. Part II of this Article will demonstrate that the Pope’s teachings on social justice fundamentally reflect the best learning from economists on how to sustain economic growth. Part III of this Article will show that nations that undertake policies to pursue the fundamental tenets of the Pope’s teachings (such as minimizing childhood poverty) also perform the best in achieving high human development …

The World’S Trademark Powerhouse: A Critique Of China’S New Trademark Law, Xuan-Thao Nguyen

Seattle University Law Review

China has become the world’s trademark powerhouse with the largest number of trademark registrations for goods and services. Parallel to the new rise is the explosion of scandals concerning trademarked goods, causing numerous deaths, massive hospitalizations, and consumer defection from domestic brands. Instead of having a trademark law with consumer protection as the cornerstone, China’s new Trademark Law will cement China as the world’s manufacturer of trademarks. This Article is the first to critically examine China’s new Trademark Law. The new law mainly centers on creating procedural measures for more trademark registrations, maintaining China’s trademark registration powerhouse status, and perpetuating …

Examining Pennsylvania Human Relations Commission V. School District Of Philadelphia: Considering How The Supreme Court’S Waning Support Of School Desegregation Affected Desegregation Efforts Based On State Law, Steven L. Nelson, Alison C. Tyler

Seattle University Law Review

This study examines the enforcement of desegregation orders mandated under state law as a result of the Supreme Court’s handling of school desegregation cases at the federal level. The Article tracks the development of school desegregation cases starting shortly before Brown v. Board of Education and continues through the recent voluntary school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1. The Article establishes four distinct generations of school desegregation cases at the federal level and determines that the political tides created, in large part, by the U.S. Supreme Court’s handling of federal school desegregation cases …

Inconsistencies In Combatting The Sex Trafficking Of Minors: Backpage’S Deceptive Business Practices Should Not Be Immune From State Law Claims, Jacqueline Hackler

Seattle University Law Review

Under federal law, the CDA has created a loophole for pimps and johns to exploit minors through the Internet. This Note uses Backpage as an example of how interactive computer services consistently evade liability under the current language of the CDA, and examines the need for an amendment to the language of the CDA. This Note argues that an interactive computer service should be held responsible under state law if it helps create the content, thus becoming an “information content provider” under the CDA. Part I provides the groundwork for what sex trafficking is and its relationship to prostitution. Additionally, …

Keynote Remarks: Re-Tooling Law And Legal Education For Food System Reform: Food Law And Policy In Practice, Emily M. Broad Leib

Seattle University Law Review

Thank you for the opportunity to be with you today and to take part in this symposium on the important role law schools and lawyers can play in changing our food system. Food preferences and food choices are incredibly personal, but the way we produce and consume food, and its impacts on our environment, public health, and the safety of ourselves and others, make it a pressing societal issue as well.

Trading Privacy For Angry Birds: A Call For Courts To Reevaluate Privacy Expectations In Modern Smartphones, Jeremy Andrew Ciarabellini

Seattle University Law Review

Of all the smartphone uses, the calling function is probably used the least. Rather, individuals more commonly use their smartphone for surfing the web, checking Facebook, and playing games. Highlighting the “smart” in smartphone, these phones often know more about their users’ daily activities than the users. Without requiring any sort of input, smartphones can tell the user how many steps they walk each day, when it is time to leave for work (also, of course, determining the traveling time with the most up-to-date traffic reports), and when an item recently ordered on Amazon will be delivered. Smartphone users may …

Authorized Investigation: A Temperate Alternative To Cyber Insecurity, Casey M. Bruner

Seattle University Law Review

This Note aims to show that legal structures created to protect the Internet in its original form are completely insufficient to protect what the Internet has become. This antiquated legal framework is exacerbating the problem. The breadth of activity that the current law restricts severely limits the remedies that cyberattack victims can pursue, and it must be updated. While full hack-back may prove necessary in the long run, I argue for a more temperate initial response to the problem—I call this response “authorized investigation.” Specifically, the Computer Fraud and Abuse Act should be amended to allow victims access to their …

Scuttling Iuu Fishing And Rewarding Sustainable Fishing: Enhancing The Effectiveness Of The Port State Measures Agreement With Trade-Related Measures, Anastasia Telesetsky

Seattle University Law Review

Illegal, unreported, and unregulated fishing (IUU fishing) is a substantial threat to global food security and a recurring problem for global fishery managers already facing difficult baseline situations exacerbated by climate change, including warming oceans and increasing acidification. There is nothing historically new about IUU fishing; there have always been poachers who take advantage of operating in the shadows of legal commercial fishing. What is new is the extent to which marine poaching has industrialized. It is estimated that 19% of the worldwide value of marine catches are unlawful. The problem is not limited to developing states. For example, even …