Law Commons^™

Balancing Broad Disclosure And Candid Consideration: Third-Party Consultants And Intra-Agency Exemptions Under The Freedom Of Information Act, Zac Losey

Kentucky Law Journal

No abstract provided.

Administering Money: Coinage, Debt Crises, And The Future Of Fiscal Policy, Rohan Grey

Kentucky Law Journal

No abstract provided.

Living Property, Joseph William Singer

Seattle University Law Review

The Supreme Court has increasingly defined property rights that are per se exempt from regulation in the absence of compensation, most recently in Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023). The Court claims that it can identify property rights that are categorically protected from regulation by reference to history, tradition, and precedent. Yet this approach is oddly ahistorical; it is inconsistent with the fact that property law changed dramatically over U.S. history, as well as varying tremendously among the states. It is also inconsistent with the historical context of the Founding era. At that time, …

Table Of Contents

Seattle University Law Review

Table of Contents

The Roots Of Credit Inequality, Andrea Freeman

Seattle University Law Review

Debt oppression began before the United States became a country. Settlers enslaved Africans and Indigenous people, treating them as property that they could buy and sell for their economic and personal benefit. When enslavement became illegal, new economic systems and laws that included sharecropping, Black Codes, and Jim Crow kept Black people in servitude. Laws that prohibited enslaved people from owning property or selling goods to white people evolved into restrictions on Black people’s occupations and market participation, both formal and informal. When Black entrepreneurs overcame these obstacles and built wealth within Black business enclaves, white people enforced their racist …

“A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Seattle University Law Review

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Mandating Fluoride: A Constitutional Exercise Of Police Power, Anita Jahangiri

Seattle University Law Review

This Note addresses the ongoing debate over fluoridation: the regulation of fluoride levels in public water systems. Extensive research indicates fluoridation, when regulated at the recommended concentration, is both safe and highly effective in preventing dental caries. Better known as cavities, dental caries is a preventable yet widespread health issue that disproportionately affects low-income populations. Reducing dental health disparities among economic classes is a pressing public health issue. Fluoridation is not merely a policy option, but a critical, proven tool to address such disparities and uphold the collective welfare of Washingtonians. This Note focuses on fluoridation as a public health …

Neurodiversity In The Courtroom: Expanding Jury Service Accessibility Beyond Physical Disability, Samantha L. Mabe

Seattle University Law Review

The Americans with Disabilities Act has required equal access to jury service for decades; however, efforts to accommodate jurors with disabilities have been slow to develop beyond some minor accommodations for physical disabilities. While neurodivergent people frequently struggle to navigate a world catered toward neurotypical people, jury service remains inaccessible for many neurodivergent people who need accommodations to attend trial and engage in jury deliberations. If courts and advocates do not consider how to develop accommodations to secure the service of neurodivergent jurors, they will miss out on the unique skillsets that neurodivergent people can bring to resolving disputes.

Disabled …

Redefining Section 230 Immunity, Lucas Dini

Seattle University Law Review

Section 230 of the Communications Decency Act has provided broad immunity to online platforms for third-party content which was the foundation for the internet's growth. However, the rise in the use of artificial intelligence (AI) to produce algorithms to curate content to users of online services has blurred the line between being a passive host of third party content and active editorial control. This Note examines the legal, policy, and constitutional implications of applying Section 230 immunity to platforms that use AI to curate and promote third-party content. This analysis argues that algorithmic promotion of third-party content constitutes a platform's …

Overcrowding The System: Rethinking Juvenile Justice In Washington State, Mckenna White

Seattle University Law Review

The recent crisis at Green Hill School highlights the detrimental consequences of severe overcrowding in Washington State’s Juvenile Rehabilitation system—a problem exacerbated by the implementation of the JR to 25 legislation. This Note argues that the juvenile rehabilitation system, which is currently struggling to manage a wide age range of offenders, necessitates a fundamental rethinking of juvenile justice practices. By examining neurological research indicating continued brain development into the mid-twenties, along with the high prevalence of trauma among justice-involved youth, this Note proposes the creation of a dedicated third system of care within the Department of Children, Youth, and Families …

Addressing The Root Of Housing Insecurity: Washington Should Divest From “Crime-Free” Housing Programs, Sarah Cerdena

Seattle University Law Review

Crime-Free Rental Housing Properties (CFRHPs) have proven to be an ineffective and inequitable approach to public safety. Often, tenants in these properties are evicted—at times, extrajudicially—as a result of conduct that does not rise to violations of their lease provisions, much less criminal behavior. By placing extraordinary power in the hands of local law enforcement to carry out these ordinances, CFRHPs predictably pose significant harm to Black and Latinx communities, survivors of domestic violence, disabled tenants, and low-income tenants generally. Recently, the Washington State Supreme Court grappled with the tensions arising between CFRHPs and the enforcement of Washington landlord-tenant law. …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Esg Investing Breaches Erisa Fiduciary Duties? A Closer Look At Spence V. American Airlines, Inc., Eric Chin-Ru Chang

Seattle University Law Review

In Spence v. American Airlines, Inc., the U.S. District Court for the Northern District of Texas found that American Airlines breached its fiduciary duties due to BlackRock’s ESG investing practices. Contrary to some reports suggesting that the ruling prohibits ESG investing under ERISA, a closer look at the ruling shows that the court only targeted American Airlines’ failure to manage conflicts of interest appropriately, rather than the legality of ESG investing itself. In light of the intensifying ESG backlash in the United States, this Article cautions against further restrictive measures on ESG investing. Such measures would exacerbate the widening …

State Mifepristone Regulation Following Genbiopro V Raynes, Greer Donley, Lewis Grossman, Patricia J. Zettler

Scholarly Articles in Law Reviews & Journals

After the US Supreme Court eliminated the federal constitutional right to abortion in 2022, several high-profile legal fights have centered on US Food and Drug Administration (FDA) oversight of mifepristone. Mifepristone (200 mg) is approved, in a regimen with misoprostol, for the medical termination of intrauterine pregnancy through 70 days' gestation. Legal battles over Mifepristone have included a lawsuit challenging the FDA’s initial approval of the drug and the sufficiency of FDA-required restrictions on the drug, as well as lawsuits arguing, to the contrary, that FDA-required restrictions are unnecessary and must be eliminated.

Peeking Around The Corner (Post): An Analysis Of The Impacts Of Corner Post V. Federal Reserve On Environmental Regulations, Olivia Montgomery

University of Cincinnati Law Review

No abstract provided.

Unflexed Muscle: Sec Enforcement And Officer Sox Section 302 Certifications, Marc I. Steinberg, A.B. Steinberg

University of Miami Law Review

This Article represents the first work to analyze the Securities and Exchange Commission’s (SEC) neglect in its enforcement of the chief executive officer (CEO) and chief financial officer (CFO) Sarbanes-Oxley certification requirement. The Article addresses the appropriate construction of the statute’s reach, the enforcement proceedings instituted by the SEC under this provision, and the Commission’s failure to fulfill its legislative directive to adequately enforce this statute and Rule 13a-14 promulgated thereunder. In its implementation of the CEO and CFO certification requirement, the SEC has brought relatively few enforcement actions during over a two-decade period. Its enforcement with respect to CEOs …

Brewbaker And The Undermining Of Criminal Antitrust Enforcement, Itiel J. Wainer

University of Miami Law Review

In United States v. Brewbaker, a Fourth Circuit panel overturned a criminal conviction under § 1 of the Sherman Act, holding that a bid-rigging conspiracy between direct competitors constituted a hybrid “dual distribution” arrangement subject to the rule of reason rather than per se illegality. The court’s rationale rested on the existence of a separate vertical relationship between the parties, even though that relationship served only as consideration for the horizontal agreement to rig bids.

This Comment argues that Brewbaker rests on three doctrinal errors: misclassifying established bid-rigging tactics as a “new” restraint simply because the payoff took a …

Grievance Redress Mechanisms For Commons: Evaluating The Design And Effectiveness Of Public Land Protection Cells In Rajasthan, India, Pooja Chandran

Journal of Law and Public Policy

Encroachment on common land represents a significant governance challenge in India. Weak institutions, irregular enforcement, and power imbalances often leave marginalised communities more vulnerable to eviction than others. This article examines the design and effectiveness of Public Land Protection Cells (PLPCs)—a judicially mandated grievance redressal mechanism in Rajasthan—in addressing common land encroachment disputes. Drawing on an analysis of cases before the Rajasthan High Court, field observations, and stakeholder interviews, it evaluates how PLPCs address enforcement gaps and promote accountability. Using the United Nations Guiding Principles 31 as a foundation, the article develops a contextualised framework to assess PLPCs to highlight …

Remedies For Unreasonable Administrative Action After Vavilov, Kate Glover Berger

Articles & Book Chapters

This article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court's previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority's invocation of the "single reasonable interpretation" exception to the general rule of remittal departs from the core …

Getting Our House In Order: Mapping The Unconstitutional Conditions Doctrine Onto Washington’S Inclusionary Zoning Policies After Sheetz V. County Of El Dorado, John “Jack” Haskins

Washington Law Review

The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County of El Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary …

Uniformity, Loper Bright, And The National Labor Relations Board: Can The Board’S Nonacquiescence Policy Survive In A Post-Chevron World?, Alexander Macdonald

Notre Dame Law Review Reflection

As chairman of the National Labor Relations Board, Donald Dotson was nothing if not controversial. Though he headed the Board for five years, he was never shy about criticizing the Board’s practices. He often argued that the Board had skewed its policies toward organized labor and inserted itself in disputes best left to private negotiation. That criticism put him at odds with his fellow Board members and frequently landed him on the wrong side of divided opinions. Even members who shared his core philosophy sometimes shied away from joining his assaults on the Board itself.

So it was on September …

Fixing The Fix: The Case For Unifying The Remedial Framework Of Apa Rulemaking Challenges, Dea Devlin

Fordham Law Review

Vacatur is the default remedy for successful administrative rulemaking challenges brought under the Administrative Procedure Act (APA). Yet its broad and sweeping effects raise critical questions regarding its appropriateness as a one-size-fits-all remedy. Unlike injunctive relief, which is subject to a rigorous heightened standard, and remand without vacatur, which has a comparable standard of its own, vacatur is routinely awarded without similar scrutiny, leading to inconsistencies in the judicial application of remedies in APA challenges.

Although vacatur can provide a plaintiff with relief, its award conflicts with underlying principles of equity and proportionality. In rulemaking challenges, vacatur can create regulatory …

Improving Regulatory Notice, Joshua Ulan Galperin, E. Donald Elliott

Elisabeth Haub School of Law Faculty Publications

Effective notice of law is the cornerstone of any legal system, and yet many federal administrative agencies do not give small businesses, NGOs, and interested citizens notice of the vast amount of new or modified law they produce. They merely publish the text in the Federal Register, which works tolerably well for larger enterprises but not their smaller competitors and citizens' groups. Despite these facts, few scholars have explored how agencies provide notice of the law. Even fewer have proposed ways that agencies could improve the methods they use for giving more effective notice of significant regulatory changes and thereby …

The Overlooked Case Of October Term 2023: Implications Of Sec V. Jarkesy On Environmental Law, Hayden Miller

William & Mary Environmental Law and Policy Review

In the summer of 2024, the Supreme Court published its opinion in SEC v. Jarkesy. In Jarkesy, the Court held that certain administrative cases must be adjudicated through Article III courts with juries instead of administrative law tribunals. The case involved fraud charges against George Jarkesy, Jr., an investment manager. After a Securities and Exchange Commission (SEC) investigation, the agency alleged that Jarkesy had violated the Securities Exchange Act of 1934. Subsequently, SEC Administrative Law Judges (ALJs) levied civil penalties against Jarkesy for securities fraud. On appeal, the Court held that securities fraud under the Securities Exchange Act …

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

William & Mary Journal of Race, Gender, and Social Justice

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

Rethinking Appeals In Arbitration, Abdi Aidid

Dickinson Law Review (2017-Present)

The question of whether arbitration awards should be appealable, or at least subject to enhanced judicial review, is heavily contested in the scholarly literature. This Article explains that arguments favoring or rejecting appellate review have focused on stylized conceptions of arbitration either as a species of contract or as a substitute for adjudication. This Article argues that these two dominant approaches—termed here the “contractarian” and “arbitration-as-adjudication” models—fail to adequately describe modern arbitration practice. Thus, any argument for or against appellate review that rests heavily on either of the two conceptions is unconvincing. Instead, this Article argues that the question of …

Good Cause For Goodness’ Sake: A New Approach To Notice-And-Comment Rulemaking, Hazel Rosenblum-Sellers

Michigan Law Review

Notice and comment is a public participation process, first articulated in the Administrative Procedure Act (APA), that was heralded at the time as a critical innovation to engage the general population in the administrative agency rulemaking process. It has been crippled in the past fifty years, first by a series of cases—primarily at the circuit court level—which imposed new procedural requirements on agencies outside the text of the APA itself, and then by technological advancements that have enabled sophisticated parties to game the system while boxing others out. Rather than creating a democratic open-door process, notice and comment has become …

Religious Conflicts In Disguise: The Limits Of The Law In Tackling Conflicts With Religious Dimensions, Yael Efron

Cardozo Journal of Conflict Resolution

In previous publications, we have established the crucial differences between conflicts with religious dimensions (CRDs) and other types of conflicts. We claim that a legal solution to CRDs is rarely sufficient to terminate the conflict and often might lead to further damage to communities and persons, sometimes even harsher than the original dispute. Since not all CRDs are similar, a theorized model of their distinguishing elements—time, intensity, and proximity to core values—assists us in differentiating them. By analyzing the elements of CRDs in accordance with the TIV model, we can more easily determine which conflicts are suitable for legal process …

Dispute Resolution Tradeoffs In Ombuds Office Design, Kristen M. Blankley

Cardozo Journal of Conflict Resolution

An organizational ombudsman (or “ombuds,” used as the preferred term in this paper) is a conflict resolution specialist who works as either an employee or contractor within the organization it serves. Unlike mediators or arbitrators, ombuds work only with a designated constituency group (often employees or other stakeholders) to solve a variety of conflicts at the lowest level possible within the organization. Ombuds, while preserving the confidentiality of the information they learn, can report trends to the organization or the public. While ombuds do not have the authority to make formal policy changes or other formal decisions, their work informs …

Blazing A New Path: How Regulatory Negotiation Can Resolve Cannabis Legalization’S Shortcomings, Natalie Pearson

Cardozo Journal of Conflict Resolution

New York’s ambitious cannabis legalization effort has fallen short of its promises, burdened by regulatory confusion, industry roadblocks, and an unchecked illicit market. Despite state-level approval, legalization remains riddled with contradictions and obstacles, leaving businesses and policymakers struggling to navigate an unstable framework. This Note explores how regulatory negotiation, an alternative dispute resolution (“ADR”) mechanism, can address key industry challenges, particularly those arising from conflicting federal and state laws.