Supreme Court of the United States Commons^™

Beacons Of Democracy? A Worldwide Exploration Of The Relationship Between Democracy And Lay Participation In Criminal Cases, Sanja K. Ivkovic, Valarie P. Hans

Chicago-Kent Law Review

No abstract provided.

How Can You Tell If There Is A Crisis? Data And Measurement Challenges In Assessing Jury Representation, Mary R. Rose, Marc A. Musick

Chicago-Kent Law Review

No abstract provided.

Race, Peremptory Challenges, And State Courts: A Blueprint For Change, Nancy S. Marder

Chicago-Kent Law Review

No abstract provided.

Judges, Lawyers, And Willing Jurors: A Tale Of Two Jury Selections, Barbara O'Brien, Catherine M. Grosso

Chicago-Kent Law Review

No abstract provided.

Beacons Of Democracy? A Worldwide Exploration Of The Relationship Between Democracy And Lay Participation In Criminal Cases, Sanja K. Ivkovic, Valarie P. Hans

Chicago-Kent Law Review

No abstract provided.

The Arrival Of The Civil Jury In Argentina: The Case Of Chaco, Shari S. Diamond, Valarie P. Hans, Natali Chizik, Andres Harfuch

Chicago-Kent Law Review

No abstract provided.

The Hybridization Of Lay Courts: From Colombia To England And Wales, Jeremy Boulanger-Bonnelly

Chicago-Kent Law Review

No abstract provided.

Lay Participation Reform In China: Opportunities And Challenges, Zhiyuan Guo

Chicago-Kent Law Review

No abstract provided.

Virtual Technology And The Changing Rituals Of Courtroom Justice, Meredith Rossner, David Tait

Chicago-Kent Law Review

No abstract provided.

The Judicial Grassroots Of The "Arbitration Revolution", Tamar Meshel

William & Mary Business Law Review

The “arbitration revolution”—the meteoric rise in the use of arbitration in the United States—is commonly imputed to the Supreme Court’s unilateral and ideologically driven expansion of the Federal Arbitration Act (FAA). The portrayal of the FAA’s evolution as a campaign launched by a Supreme Court that is out of touch with society and with the judicial system over which it presides usefully serves to delegitimize both this one-hundred year-old statute and arbitration more generally. This Article argues that the popular description of the Supreme Court as the sole instigator of the “arbitration revolution” is misleading because it conveniently ignores a …

Democratic Erosion And The United States Supreme Court, Jenny Breen

Utah Law Review

For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting …

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

Testing The Limits Of Virtual Compliance: Website Accessibility, "Tester" Plaintiffs, And Article Iii Standing Under The Ada, Ashlyn Dewberry

Georgia Law Review

Federal courts have split in determining whether “tester” plaintiffs bringing suit under the ADA assert the requisite injury in fact necessary for Article III standing. These “website accessibility testers” allege that defendants’ websites do not make certain information available to disabled persons in violation of Title III of the ADA and one of its implementing regulations. This split presents an excellent opportunity to clarify which informational and stigmatic harms qualify as injuries in fact for Article III standing purposes. This Note argues that ADA website accessibility testers cannot obtain standing under current law. Neither the text of the ADA nor …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

William & Mary Law Review Online

This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue: agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. …

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

The Rise Of General Jurisdiction Over Out-Of-State Enterprises In The United States, Peter Hay

Emory International Law Review

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

Table Of Contents

Seattle University Law Review

Table of Contents

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, …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Chapter 13: Let’S Call The Whole Thing Off, Lawrence Ponoroff

Emory Bankruptcy Developments Journal

Courts cannot agree on much of anything about chapter 13, and legislators cannot agree and are confused over what to do about it. This state of affairs benefits no one and shows no signs of abating. So, in this Article, I propose to throw in the towel by imagining a world without chapter 13. Spoiler alert: although I am not superstitious, with just a few tweaks and tucks to chapter 7, I think the Bankruptcy Code might just be better off operating like a high-rise elevator that goes directly from floor twelve to floor fourteen. I will lay it out …

Third-Party Bankruptcy Releases And The Separation Of Powers: A Stern Look, Henry Reynolds

Emory Bankruptcy Developments Journal

In the last few years, bankruptcy scholars and professionals have criticized mass tort debtors’ use of chapter 11 bankruptcy as a litigation forum. One such criticism concerns mass tort debtors’ use of third-party releases: provisions in chapter 11 reorganization plans that enjoin creditors’ claims against non-debtor third parties. If a bankruptcy court approves such releases, creditors lose claims against the released third parties, which often include the debtor’s directors, insurers, or employees.

Third-party releases have troubled many. Critics and courts have said that third-party releases violate (1) the Bankruptcy Code, (2) bankruptcy policy, (3) the constitutional right to due process, …