Digital Commons Network^™

Locating Consumer Financial Regulation, Nikita Aggarwal

Articles

Recent advances in data-driven technology in consumer financial markets, commonly referred to as "fintech," have resurfaced the question of whether and to what extent data, particularly consumers' personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation of personal financial data per se and many of the traditional features of personal data protection regulation, …

Tort Law: Cases & Critique, Thomas E. Kadri

Books and Book Chapters

No abstract provided.

Bad Paper & The Problems With Moral Turpitude In The Va Context, Rebecca L. Feldmann

Missouri Law Review

Moral turpitude serves as a way to exclude former servicemembers from the U.S. Department of Veterans Affairs (“VA”) definition of a veteran. As a result, servicemembers who commit offenses deemed morally turpitudinous cannot access VA disability compensation, burial in a VA cemetery, education benefits, many types of VA healthcare, or any other of the multitude of benefits offered by the VA. This issue is especially problematic for veterans with “bad paper”—i.e., those with a less than fully honorable discharge—whose underlying misconduct is related to post-traumatic stress disorder (“PTSD”), a traumatic brain injury (“TBI”), or another mental health condition.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

The Identity Factor, Jessica Feinberg

Faculty Publications

Identity development is one of the most important processes that occur during childhood. For certain populations of children, such as those who are LGBTQ+ or multiracial, the path to healthy identity development is substantially more complicated. These children must navigate the development of their identities while existing in a world in which they will frequently encounter a lack of societal understanding and acceptance. Children within these populations face elevated risks of short- and long-term harms, including suicidal ideation, depression, substance abuse, and low self-esteem. As a result, it is critically important that LGBTQ+ and multiracial youth receive support in developing …

The Hidden Pain Of Family Policing, Shanta Trivedi

All Faculty Scholarship

The child welfare system ostensibly exists to protect children. However, its methods—investigating allegations of abuse and neglect, filing cases against parents in court, removing children from their parents, and, in thousands of cases each year, permanently severing the legal relationship between children and their parents—have been shown to inflict great harm on children, despite the system’s stated goal. This Article looks at the system’s impact from a different angle: the harm to parents. It is both common sense and a proven fact that a child’s well-being depends in large part on the health and well-being of their parents. Yet the …

Court Review: Journal Of The American Judges Association, Vol. 61, No. 1, Eve M. Brank, David J. Dreyer, Reba Page

Court Review: Journal of the American Judges Association

Contents

We Need Cvility Now More Than Ever, Benes Z. Aldana

Bias of Work-Related Psychological Claims, Melissa Lin Jones

An AI Primer for Judges, Joseph Regalia

Editor’s Note

President’s Column, Vincent L. Johnson

Thoughts from Canada: The Supreme Court of Canada Considers the Application of the Common Law “Exigent Circumstances” Doctrine to the Warrantless Searches of Electronic Devices, Wayne K. Gorman

Crossword: Four 38-acrosses, Victor Fleming

Court Review Author Submission Guidelines

The Resource Page

What Judges Can Do about Implicit Bias: Evidence-based Recommendations and Practices, Jerry Kang

Crossing The Rubicon: Assembling A Litigation Colossus In Mass Torts, Samir D. Parikh

Michigan Law Review Online

In 2021, Arizona created the alternative business structure (ABS), which allows nonattorneys to own a firm that provides legal services and actively participate in firm management. Scholars have argued that this new paradigm will erode the attorney-client relationship. This represents a legitimate concern. Conflict- ing fiduciary duties can complicate key moments in case resolution. But the impact of Arizona’s shift is more seismic. The true threat does not involve nonattorneys owning a law firm but, rather, private equity firms vertically in- tegrating the entire mass-tort machinery. The endgame is a litigation colossus that rolls up law firms, marketers, claim aggregators, …

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Michigan Law Review Online

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

Discriminating Alignment In The Innovation Sphere, Juliet P. Kostritsky

Faculty Publications

Contracts play an important role in innovation. As a result, some. scholars have proposed theories highlighting contract provisions as devices that can serve to informally enforce agreements and build trust between parties. Others emphasize the hierarchical provisions between firms to promote efficiency. Yet another group views these agreements as a mechanism to institutionalize learning and protect property interests. This Article offers a new theory. To understand a firm’s contractual choices and governance, we must look at how the same provisions in different contracts may have distinct meanings or operate differently in different contexts. So, scholars must give context to these …

When Lsat Doesn't Matter And Other Surprising Finds From A Deep Dive Into Academic Probation In Law School, Kari Milligan, Ryan Jerome Lecount

Faculty Scholarship

Numerous students nationwide are placed on academic probation and ultimately dismissed from law school each year. While students often carefully conceal their probationary status, their lack of visibility within legal communities should not be mistaken for an absence of need. These students are frequently uniquely vulnerable—facing unexpected family emergencies or entering law school unprepared. The consequences of dismissal are dire, with students experiencing adverse mental health effects and financial exigencies. During the 2023–2024 academic year alone, tuition and fees for a single year of law school ranged from $30,000 to $48,000. Yet, little research—particularly quantitative—has been conducted in service of …

Regulatory Personhood: The Elixir For Redundancy Between The Sec And The Pcaob, Sarah Williams

Faculty Scholarly Works

The Public Company Accounting Oversight Board (“PCAOB” or “Board”) is a quasi-governmental regulatory agency created by Congress in 2002 in response to revelations of widespread financial fraud at major public companies. Since its creation, the agency has experienced significant challenges. Litigants have challenged its constitutionality, the Trump administration challenged its very existence, and legislation was introduced in 2021 to transfer its responsibilities to the U.S. Securities and Exchange Commission (“SEC”).

Proposals to eradicate the Board asserted vague concerns about the redundancy of its responsibilities with those of the SEC, and alleged resultant monetary waste. This Article, written in 2022, provides …

Why Academic Law Librarians Quit: Results Of The Law Librarian Exit Survey, Laura J. Ax-Fultz

Faculty Scholarly Works

The pandemic exposed the struggles of workers everywhere. The complexity of handling family, work, illness, and a host of other issues led many to reconsider their employment. The phrase “The Great Resignation” summed up the zeitgeist of the early pandemic. Concurrently, open positions for academic law librarians were increasing. I sought to unravel the apparent surge in open positions by surveying academic law librarians to discover why they resigned from their positions or considered leaving them during the period of January 2020 through June 2023.

These findings were evaluated within the context of a high volume of job postings in …

Colombia, Covid-19, And The Colonial Trap: Reflections On The Politics Of Knowledge Production, Fionnuala Ní Aoláin, Bill Rolston, Claire Wright

Articles

The COVID-19 pandemic has made historical and contemporary colonial relationships between and within states more fraught. This complexity is apparent within the research process itself, adding a new dimension to debates on positionality and the politics of knowledge production. Drawing on critical approaches to International Relations, and in dialogue with an emerging literature on the implications of the pandemic for knowledge decolonization, we reflect on our experience as scholars from the UK/Ireland researching colonial legacy and Transitional Justice in Colombia. The aim of this autoethnographic article is to suggest how the COVID-19 pandemic affected inequalities between researchers based in Europe …

Cultural Cognition And The Thoughtful Judge, Jack H.L. Whiteley

Articles

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Tonry’S Blueprint For The Comparative Study Of Sentencing Law And Policy, Kevin R. Reitz

Articles

This essay explores Michael Tonry’s treatment of sentencing law and policy within the U.S. as an inherently comparative project. The essay draws from Tonry’s “early period” in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system. Tonry classified the several models of “sentencing reform” that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as “laboratories” whose …

Trends Impacting Law And Popular Culture Collecting In Law School Libraries, Jacob Sayward

Articles

No abstract provided.

Standardization And Accuracy Of Race And Ethnicity Data: Equity Implications For Medical Ai, Alexandra Tsalidis, Lakshmi Bharadwaj, Francis X. Shen

Articles

The rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of best …

Revolutionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan M. Wolf, Francis X. Shen

Articles

Introduction New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial. Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns. Methods & Results We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Designer Organs: Ethical Genetic Modifications In The Era Of Machine Perfusion, Irina Filz Von Reiterdank, Susan M. Wolf, Raphaela Bento, Insoo Hyun

Articles

Gene therapy is a rapidly developing field, finally yielding clinical benefits. Genetic engineering of organs for transplantation may soon be an option, thanks to convergence with another breakthrough technology, ex vivo machine perfusion (EVMP). EVMP allows access to the functioning organ for genetic manipulation prior to transplant. EVMP has the potential to enhance genetic engineering efficiency, improve graft survival, and reduce posttransplant complications. This will enable genetic modifications with a vast variety of applications, while raising questions on the ethics and regulation of this emerging technology. This review provides an in-depth discussion of current methodologies for delivering genetic vectors to …

Public Perceptions Of Neurotechnologies Used To Target Mood, Memory, And Motor Symptoms, Rémy A. Furrer, Amanda R. Merner, Ian Stevens, Peter Zuk, Theresa Williamson, Francis X. Shen, Gabriel Lázaro-Muñoz

Articles

Public attitudes toward four neurotechnologies for treating three types of brain disorders (mood, motor, and memory) vary on a range of metrics, such as perceived risk, invasiveness, and likelihood of use. In a survey of 1,052 US participants, deep brain stimulation (DBS) was seen as the most invasive and risky among the surveyed methods, involving the greatest perceived change to the person and the least likely to be used personally. Non-surgical options like transcranial magnetic stimulation (TMS) and pills were viewed as more acceptable. Devices targeting motor symptoms were rated as more beneficial and acceptable than those for mood or …

Revoluntionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan Wolf, Francis X. Shen

Articles

Introduction

New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial.

Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns.

Methods & Results

We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Race, Gender, And Ordinary Peace: Assessing The Women, Peace, And Security Agenda Through A Coloniality Lens, Fionnuala Niaolain, Claire Wright

Articles

No abstract provided.

By Way Of Conclusion: Making Sense Of Fallacies, Claire Hill

Articles

As noted in the Introduction to this volume, our collective goal is to examine some of the key misconceptions and unquestioned assumptions – which we refer to as ‘fallacies’ – that guide, and often misguide, developments in modern corporate law and financial regulation. These fallacies are embedded and instantiated in scholarship, law, public policy and public opinion. Their intellectual and practical impact is considerable, but it is largely hidden. Critically, these fallacies too often frame legal and policy debates, strongly influencing and even determining policy choices. While our volume does not (and indeed cannot) provide an exhaustive analysis of this …