Digital Commons Network^™

Panel 2: Environmental Rights Amendment And Environmental Justice, Samantha Phillips Beers, John C, Dernbach, Emma H. Bast, Margaret O. Murphy

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Gift Of Public Funds Bogeyman, Noah Purcell, Michelle Saperstein

Washington Law Review

Washington’s “gift of public funds” doctrine is frequently misunderstood in ways that impede innovative ideas aimed at remedying some of our state’s most intractable problems. This doctrine arises from article VIII, sections 5 and 7 of the Washington Constitution, which prohibit state and local governments from gifting assets or loaning credit. While the Washington State Supreme Court historically applied these provisions in restrictive and confusing ways, the Court’s modern jurisprudence recognizes that the doctrine is inapplicable to funding expended for any of the many “fundamental purposes” of government. Even where a government program does not fall under this broad category, …

Under The Umbrella Of Water Law: Why Rainwater Harvesting Should Constitute A Valid Water Right, Jordann Krouse

Washington Law Review

Rain is a major source of water. It provides for our greatest needs, such as feeding our gardens, crops, rivers, and lakes. As global climate change continues to unfold, the impacts of water availability and water pollution simultaneously grow more urgent. Water rights are a mechanism in the United States’ legal system to allocate, regulate, and manage water as a natural resource. These rights are limited, however, in their coverage and varied in their application. For example, access to rainwater is not a recognized water right despite being a major source of water. The ecological and economic incentives of rainwater …

A Noncompete By Any Other Name: Assessing The Validity Of Training Repayment Agreements Under Washington Law, Hannah Lukomski

Washington Law Review

Training Repayment Agreements (TRAs) are restrictive employment covenants that require an employee to pay their employer a fixed or prorated sum for training costs if the employee quits their job within some period defined by the agreement. The prevalence of TRAs has drastically increased in low-wage employment. TRAs harm employees by imposing an artificial financial constraint that disincentivizes employees from leaving their employer within the contract duration. The Washington State Legislature has not directly addressed TRAs despite having articulated limits on other restrictive employment covenants, like noncompetition agreements. This Comment reviews federal agency actions and other states’ approaches in response …

The Future Is In Their Care: Justice And The Washington Constitution, Steven González

Washington Law Review

No abstract provided.

Inadequate Pay: Gutting Teacher’S Compensation In The Learns Act, Tye G. Boudra-Bland

University of Arkansas at Little Rock Law Review

No abstract provided.

A Yellow Light For New York’S Red Flag Law In Criminal Prosecutions: Contextualizing The Fruits Of New York Extreme Risk Protection Orders, Isabella Glassman

Brooklyn Law Review

Public concern over gun violence grabs the news headlines, highlighting mass shootings at schools and suicide rates, amongst other gun-related problems. Twenty-three states in the United States turned to red flag laws to proactively address these gun violence issues. New York is one such state. The crux of New York’s Red Flag Law is the extreme risk protection order (ERPO), which is a civil court order that prevents respondents to ERPO proceedings from possessing or attempting to possess a firearm, rifle, or shotgun for up to one year. This civil court order, however, could slip into the realm of criminal …

Erie Mistakes: The Eleventh Circuit Misconstrues Already Problematic Georgia Precedent On Choice Of Law, Jeffrey A. Van Detta

University of Miami Law Review

This Article explores the Eleventh Circuit’s precedent that has struggled with an unusual Georgia choice-of-law rule. The rule in question applies when the conflicting law of a sister state is a common law rule or doctrine (such as in tort or contract law) rather than a specific statute and has been a feature of Georgia law since the 19th century. The approach has lingered in scattered Georgia and related federal cases over many decades but was not given much attention in modern times until the Georgia Supreme Court decided to reaffirm and amplify it unanimously and defiantly in Coon v. …

Asegurar La Frontera: Expansion Of Governor Greg Abbott’S Powers Over Border Security, Marshall B. Lloyd

St. Mary's Law Journal

No abstract provided.

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Hunting For Meaningful Boundaries: Virginia's Dog Retrieval Statute And Defining Per Se Regulatory Takings Under Cedar Point, Mason Miller

William & Mary Bill of Rights Journal

This Note will begin with a summary of the [Cedar Point Nursery v. Hassid] decision. Next, it will provide an overview of Virginia’s dog retrieval statute and discuss a recent case challenging the same. The Note will then analyze the statute by applying the Cedar Point standard, with special attention given to the exceptions, to determine if the law constitutes a per se taking. Finally, the Note will conclude by exploring some implications of the analysis, again emphasizing the effect of the amorphous exceptions.

This abstract has been taken from the author's introduction.

A Fate Worse Than Death: The Perpetuation Of Ableism Through California's "End Of Life Option Act", Skyler Powell

William & Mary Bill of Rights Journal

This Note discusses why physician-assisted suicide is inconsistent with California’s laws and how it should be remedied. First, Part I examines the history of physician-assisted suicide in the United States; the federal and Californian stances on the issue; how the EOLOA [End of Life Option Act] works today; and California’s stance on suicide prevention. Next, Part II looks at how California’s Equal Protection Clause and Civil Rights laws apply to individuals eligible for aid-in-dying medication, then analyzes a recent lawsuit brought against the state of California by disability advocacy groups regarding the EOLOA. Part III considers California and supporters’ interests …

Gilead: Municipal Liability For Punitive Damages Under The Fair Housing Act, Robert G. Schwemm

Connecticut Law Review

The 1968 Fair Housing Act (“FHA”) has always been understood to apply to local governments, which have proved to be among the most frequent and significant violators of this law, especially in their opposition to housing of particular value to racial minorities and persons with disabilities. Yet not until the Second Circuit’s decision last year in Gilead Community Services, Inc. v. Town of Cromwell did an appellate court approve an FHA-based punitive-damage award against a municipality. Before Gilead, district courts had generally blocked such awards, applying § 1983’s immunities to protect local governments and their officials from the FHA’s full …

Goodbye, Zoning?, Michael Allan Wolf

UF Law Faculty Publications

American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

Misusing Eminent Domain: Pretextual Takings For A Traditional Public Use, Cameron P. Hellerman

Fordham Law Review

Eminent domain is a powerful tool at the disposal of local, state and federal governments. The Fifth Amendment to the U.S. Constitution imposes two conditions on this sovereign power: the taking must be for “public use,” and the condemner must pay “just compensation” to the property owner. There are minimal guardrails in place to police potential misuse of the eminent domain power in the courts. The U.S. Supreme Court equates “public use” with “public purpose” and applies a deferential standard of review to a condemner’s determination that a taking serves a public purpose. Nonetheless, the Court in Kelo v. City …

A Critical Look At A New Iowa Law Allowing Minors To Serve Alcohol, Tom Hubbard

Journal of Food Law & Policy

In the never-ending tug-of-war of today’s charged political climate, the child labor discussion has been caught right in the crosshairs. While the Biden administration promised to crack down on child labor law violations (with varying degrees of success), more states continue making it easier for children to work. Because of this, the opportunity to exploit a progressively younger workforce will continue to grow. Amidst this backdrop, this article focuses particularly on a new Iowa law that expands child labor across the state. While there are many states seeking to roll back child labor law protections, Iowa’s new law seems to …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

When Prenatal Care Becomes A Crime, Casey Hunter

Fordham Law Review

For decades, pregnant women have increasingly faced criminalization for their actions and conduct during pregnancy, with Alabama emerging as a focal point due to its aggressive use of section 26-15-3.2: Chemical Endangerment of Exposing a Child to an Environment in Which Controlled Substances Are Produced or Distributed. Originally intended to protect children from the dangers of methamphetamine labs, this law has been reinterpreted to prosecute pregnant women who test positive for controlled substances. Central to these prosecutions are positive drug tests obtained from prenatal health records, causing many women to avoid prenatal care for fear of legal consequences.

This Note …

“Very Little Cause At All”: The Erosion Of Job Security For Ohio Teachers, Philipp Corfman

Cleveland State Law Review

As education becomes an increasingly divisive partisan issue, with teachers caught in the crossfire, it is more important than ever that teachers have protection from unfair or politically-motivated terminations. The Ohio Teacher Tenure Act was enacted 80 years ago to give teachers this essential job security. However, this Note examines the bizarre fact that, after a recent series of state court opinions, the Act now gives Ohio teachers less job security than other unionized public employees. By essentially forbidding adjudicators of teacher terminations from considering proportionality, length of service, and due process, these holdings leave teachers in a far more …