Courts Commons^™

From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

An Unconstitutional Band-Aid: The Practice Of Sitting By Designation In The Federal Judiciary, Michaela Conley

Roger Williams University Law Review

No abstract provided.

Taking Care Of Our Future: Considering Gender In Juvenile Reentry Reform, Delaney J. Dibble

Roger Williams University Law Review

No abstract provided.

Partisan Panel Composition And Reliance On Earlier Opinions In The Circuit Courts, Stuart M. Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Articles

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

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 …

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 …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

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 …

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

SchröDinger’S Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina M. Frohock

Marquette Law Review

A dissenting opinion is the Schrödinger’s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

On The 175th Anniversary Of The Wisconsin Constitution: An Examination Of The Early Court “Repairs” Of A Rushed Document, Steven M. Biskupic

Marquette Law Review

The Wisconsin Constitution was a document prepared in a hurry. The fall 1848 national election was expected to be a referendum on the spread of slavery and the only way for residents of the Wisconsin Territory to vote in the national election was for Wisconsin to become a state. In order to become a state, however, Wisconsin first needed a constitution. For forty days in late December 1847 and January 1848, a constitutional convention met in Madison. Using the 1840s equivalent, delegates “cut and pasted” whole sections from the constitutions of New York and Michigan, as well as from an …

Is Jacobson V. Massachusetts Viable After A Century Of Dormancy? A Review In The Face Of Covid-19, Sawan Talwar

Touro Law Review

The COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts1 was the “silver bullet” for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis …

"Trans Talk" And The First Amendment, William M. Carter Jr.

Articles

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at …

The Procedure Of Democratic Erosion, Kevin L. Cope, Mila Versteeg

Emory Law Journal

In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the target of such power-consolidating reforms, though they are not the only such target. Depending on their nature, such reforms are variously characterized as eroding democracy or being illiberal. But while they may be substantively undemocratic or illiberal, these reforms tend to be procedurally lawful. That is, they do not subvert the constitution outright but work within the existing constitutional framework, with reformers either formally changing the constitution or seeking new interpretations.

Why would leaders pursuing undemocratic reform follow …

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

The Transmogrification Of Moratoria In Support Of Rent Regulations: False Steps To Affordable Housing, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The real challenge in property law is demarcating its contours. In this Article, I explore current challenges to our conception of property and the courts' specification or retraction of long-recognized limits on government interference for larger societal benefits. I am largely prompted by recent rulings in state and federal courts on moratoria on evictions during the COVID-19 pandemic and the increasing burdens of rent regulation in a world of persistent housing shortages. In Part II, I discuss property law theories as a backdrop to the discussion of political limits, with a brief summary of how the concepts have evolved over …

The Constitutional Multiverse: A Retroactive Analysis Of Hemphill V. New York, Michael C. Wetmore

Loyola University Chicago Law Journal

In 2022, the Supreme Court was asked the question: May a criminal defendant “open the door” to evidence that it is otherwise inadmissible because of their Sixth Amendment right to confront adversarial witnesses? It is not unheard of that, at trial, a defendant’s attorney makes arguments that prosecutors and judges think will mislead the jury. Many times, these arguments reference evidence that—by evidentiary rule, pretrial ruling, or otherwise—is inadmissible. Trial courts have long been afforded the discretion to measure how much evidence can come through the door a defendant opens by raising these arguments to cure any false impression that …

Drops In The Ocean: The Hidden Power Of Rights-Based Climate Change Litigation, Craig Martin

Case Western Reserve Journal of International Law

An increasing number of legal challenges to government climate change policies are being advanced on the basis that states are violating the human rights or constitutional rights of applicants. A number of high-profile cases in Europe have upheld such claims and ordered governments to adjust their policies. But questions remain regarding how effective such rights-based cases may be in the effort to enforce climate change law obligations or encourage government responses to the crisis. This Article explores how such rights-based cases may exercise greater influence than is typically understood.

After explaining briefly the relevant human rights and climate change law, …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarship@WashULaw

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …

Self-Defense And Political Rage, Erin L. Sheley

Faculty Scholarship

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad

All Faculty Publications

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …

The Constitutional Court Of Indonesia As A Post-Conflict Institution, Christie S. Warren

Faculty Publications

In post-conflict settings, constitutional courts have important roles to play despite complex and often competing challenges they face to institutionalize their legitimacy and entrench the rule of law while attempting to build bridges from conflict to peace. By processing political conflict through legal means, constitutional courts can shift the tenor of public dialogue and provide a less inflammatory platform for analyzing conflicts that have divided societies. This article analyzes two seminal cases decided by the Constitutional Court of Indonesia in the aftermath of post- Suharto conflict and finds that despite its young age, the Court addressed lustration issues and a …

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Faculty Journal Articles and Book Chapters

Among the most significant—and by some estimations the most controversial—transformations of the federal appellate system occurred in the late 1960s and 1970s with effects still felt today: the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been subject to intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain …

Protecting Title Ix’S Promise: The Injustice Of Indifference In Title Ix Peer Sexual Harassment Cases, Emily Harvey

Emory Law Journal

Title IX of the Education Amendments of 1972 promised dramatic measures to address sex-based discrimination in education. In the context of civil suits against schools involving peer sexual harassment, these measures have yet to live up to their promise. Under the existing standard, student victims of peer sexual harassment must demonstrate that their educational institutions responded to their reports of harassment with “deliberate indifference.” This standard favors institutions over students as it imposes liability only in the most egregious cases. A deepening conflict between the circuit courts regarding what deliberate indifference actually requires compounds concerns over the standard’s ineffectiveness. Courts …

Clearing Up The Confusion: A Three-Part Framework For Applying The Copyright Preemption Clause To Right Of Publicity Claims, Annie Seay

Emory Law Journal

To prevent conflicting state-law interests and federal copyright interests in a single claim, Congress enacted Section 301 of the Copyright Act of 1976—providing a two-prong test to determine when a state-law claim is preempted by federal copyright law. Though Section 301 appears to be a clear and simple test, it has proven to be anything but. Between 1986 and 2023, six of the thirteen circuit courts decided whether state-law right of publicity claims are preempted by federal copyright law using the Section 301 two-prong test, but each court’s analysis was vastly different from the other. Specifically, the Second, Third, Fifth, …

The Wages Of Hitching Wagons, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

This article examines the challenges faced by states that align their constitutions with federal doctrine through the practice of "lockstepping"—adopting federal legal standards into state law. Lockstepping binds states to federal law, regardless of its trajectory. Part I traces the evolution of standing doctrine in both federal courts under Article III and Kentucky courts under its constitution. Part II presents an originalist critique of the federal injury-in-fact requirement, highlighting emerging efforts to abandon this requirement in federal courts. Part III discusses the dilemma states like Kentucky face, balancing constitutional interpretation, federalism, and legal stability.

Why Do Judges Compete For Cases?, Jonas Anderson, Paul R. Gugliuzza

Utah Law Faculty Scholarship

It’s not just parties to litigation who forum shop. Sometimes judges forum sell by trying to attract cases to their courts. This judicial competition for cases has been documented in areas ranging from bankruptcy to antitrust to, most infamously, patent law. Despite the ubiquity of judicial case-seeking behavior, one important question remains unanswered: why? Why do judges—particularly federal district judges, who enjoy life tenure and are paid fixed salaries—seek out more work, especially in cases that can be quite complex?

This article answers that question by developing a first-of-its-kind model of judicial behavior in the context of court competition. The …