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Epigenetics And Reparations: How Epigenetics Can Help Federal Plaintiffs Meet The Constitutional Article Iii Standing Requirements In Reparation Lawsuits, William Chin

Seattle Journal for Social Justice

No abstract provided.

Post V. Trinity Health-Michigan: Does 42 U.S.C. § 1985(3) Offer Protection From Disability Discrimination?, Joseph D. Burdine

Seattle University Law Review Online

No abstract provided.

No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Does Minnesota’S Red Flag Bill Violate The Second Amendment?, Sherian Anikie

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Judicial Review In Public And Private Governance, Tomer S. Stein

Scholarly Works

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it. Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and incoherence in the use and application of substantive standards of review. The resulting disarray is explicitly acknowledged by the very judges that formulate these standards of …

The Nineteenth Amendment And Dobbs, Paula A. Monopoli

Faculty Scholarship

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter of …

Cumming V. Richmond County Board Of Education: The Great Dissenter's Great Betrayal, Mark Dorosin

Duquesne Law Review

Justice John Marshall Harlan's place in legal history was established by his impassioned and eloquent dissents defending the civil rights of Black Americans in The Civil Rights Cases¹ and Plessy v. Ferguson.² The former slave owner's powerful and solitary dissents in those cases, and in several others regarding the Equal Protection Clause and the rights of Black Americans, established Harlan's reputation as a radical champion of civil rights. Those opinions are also credited with establishing the analytical foundation upon which the legal strategy to challenge segregation would eventually be built.

The Purpose And Practice Of Precedent: What The Decade Long Debate Over Stare Decisis Teaches Us About The New Roberts Court, Russell A. Miller

Scholarly Articles

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This …

Not Everything Has To Be A Taking: Tyler V. Hennepin County, Maryann Herman

Duquesne Law Review

In Tyler v. Hennepin County, we see the United States Supreme Court's continuation of the strengthening of individual property rights. The Court endeavored to address two issues in this case: 1) whether the seizing and selling of property to satisfy a tax debt without returning the surplus violates the Takings Clause; and 2) whether the forfeiture of the surplus resulting from a tax sale is an excessive fine under the Eighth Amendment. The Court answered the first question in the affirmative and, thus, did not address the second question.

The Constitutional Meaning Of Financial Terms, Tomer S. Stein, Shelby Ponton

Scholarly Works

The Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution, comprising of two fundamental canons of construction.

First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does …

United States Of America, In The Forum Of Federations Handbook On Local Government In Federal Systems, Meryl Justin Chertoff

SALPAL Papers & Reports

Municipalities in the United States (US), particularly those in its largest metropolitan areas, drive economic growth and innovation and are home to the majority of the nation’s population, but their political status under the federal constitutional system of divided government is relatively weak. That does not mean US cities lack political power; it means that the federalist structure weakens, rather than enhances, city power. The US Constitution does not even mention cities, and the US federal structure has not evolved to reflect ‘city power’. There is a mismatch between the rise of cities on the global stage and their role …

Getting Off Off-Duty: The Impact Of Dobbs On Police Officers’ Private Sexual Lives, Joshua Arrayales

UC Law Constitutional Quarterly

Upon its leak and subsequent official release, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization shocked and worried the nation. Overnight, the Court overturned forty-nine years of precedent. Those forty-nine years of overturned precedent not only implicate the ability to obtain abortion, but also the ability to engage in relationships, marry, make decisions about our own body, and keep our personal lives private. As a result, many advocates worry about the status of fundamental rights since many of those rights relied on the now overturned cases Roe v. Wade and Planned Parenthood v. Casey as well as …

Brnovich: Extratextual Textualism, Maureen A. Edobor

Scholarly Articles

This Article provides a comprehensive analysis of Brnovich v. Democratic National Convention, which purports to create a new standard for Section 2 claims under the Voting Rights Act, by situating the critique in the ratifying-era history and original intentions of the VRA’s constitutional counterpart, the Fifteenth Amendment. Brnovich is necessarily examined through a historical and political framework, identifying throughlines from the Reconstruction Era original intentions for the Fifteenth Amendment, distilled from Congressional debates, the VRA’s initially expansive Supreme Court interpretation in South Carolina v. Katzenbach, and Congress’ Section 2 amendments in 1982, rebuking the Court’s attempts to erode the legal …

Finding Rights In The Fine Print: How Terms Of Services Agreements Can Turn Consumer Search History Into Digital Property, Dalia Wrocherinsky

American University Business Law Review

On October 16, 2023, the Colorado Supreme Court handed down the country’s first court opinion on the constitutionality of reverse keyword warrants. It found that Google’s Terms of Service created a Fourth Amendment property interest in a user’s search history such that police copying this data constituted a seizure. This was a completely novel contention that implicates basic, yet increasingly relevant and unsettled principles of property, contracts, and Fourth Amendment law.

This Comment will argue that fundamental principles of property, contracts, and Fourth Amendment law support the Colorado Supreme Court’s theory. It will explore how property rights are created and …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

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, …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Judicial Power And Potential Unconstitutionality: A Scholastic Perspective, Kevin C. Walsh

Scholarly Articles

There is a fundamental legal distinction between making the law and applying it. All manner of juridical confusion follows from neglect of this distinction, as the Supreme Court’s statutory severability doctrine strikingly illustrates. In this lecture, I diagnose the cause of severability doctrine’s problems and identify a basic framework for replacement doctrine by drawing on that perennial philosophy which “view[s] the history of philosophy as the development of basic doctrines long discerned and taught, a development by way of deepening appreciation as opposed to constant replacement of one worldview by another.”

Boiling Behind Bars: Exploring The Hidden Toll Of Extreme Heat On Mental Health In Texas Prisons, Sandra K. Miller

Social Work Theses - Archive

The State of Texas supports the largest prison system in the US and held 132,859 people in 100 units scattered across the state as of December 2023. Approximately 70% of Texas prison beds are not air conditioned, despite the state’s reputation for dangerously hot, humid summers. The State has officially recorded temperatures inside Texas prison facilities as high as 120 degrees with heat index values of over 150. Although there is a growing body of research on the negative physiological and psychological consequences of extreme heat among the general public, little is known about the physical and emotional toll of …

Uncommon Carriage, Blake Reid

Publications

As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.

This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that …

Liberty On Hold: The Constitutional Test And Source For Overdetention Claims, Sarya Baladi

Fordham Law Review

The persistence of overdetention—meaning continued detention after officers knew or should have known that the arrested person was entitled to release—poses major concerns about both the fundamental right against arbitrary detention and other unenumerated constitutional rights. The U.S. Supreme Court’s 1979 decision in Baker v. McCollan established a vague constitutional protection against overdetention, but it left lower courts to answer many open questions about its parameters.

Although courts agree that the Constitution prohibits law enforcement from arbitrarily detaining indefinitely an arrested person who protests their legitimate release, the application of this protection has been inconsistent across federal courts of appeals. …

Turning A Blind Eye To “Prisoner-On-Prisoner” Brawls: Why Failure-To-Protect Claims Should Proceed Under Bivens, Sophia M. Brusco

Fordham Law Review

Correctional officers have an obligation, under the Eighth Amendment and 18 U.S.C. § 4042, to protect incarcerated persons from an attack at the hands of fellow incarcerated individuals. Despite this duty, when a federal officer fails to protect an incarcerated person from attack, the viability of the victim’s claim against the offending officer is uncertain. Even though the doctrine, created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows courts to infer a cause of action for damages directly from the Constitution, the U.S. Supreme Court adopted a test in Ziglar v. Abbasi that has …

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 …

The Historical Regulation Of Intoxicated Firearms Possession And Carry: A Response To F. Lee Francis’S Armed And Under The Influence: The Second Amendment And The Intoxicant Rule After Bruen, Mark Anthony Frassetto

Marquette Law Review

Recently, the Marquette Law Review published Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen by Professor F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and …

Railroading Interstate Corporations: Personal Jurisdiction And Dormant Commerce After Mallory V. Norfolk Southern Railway Co., Abigail Nilsson

Marquette Law Review

In Mallory v. Norfolk Southern Railway Co., the Supreme Court resurrected a long-dormant theory of personal jurisdiction: that by registering to do business in a state, a corporation consents to general jurisdiction. This Comment critiques the Mallory plurality’s reliance on pre-International Shoe caselaw, arguing that the decision unnecessarily sidesteps decades of precedent, mistakes coercion for consent, and inaptly analogizes registration- jurisdiction statutes to tag jurisdiction on individuals. It further explores Justice Alito’s concurring concern that such statutes may violate the Dormant Commerce Clause by imposing disproportionate burdens on out-of-state corporations without corresponding state benefits. Finally, the Comment uses Wisconsin as …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

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. …