Law Commons^™

The Structure Of Corporate Law Revolutions, William Savitt

Seattle University Law Review

Since, call it 1970, corporate law has operated under a dominant conception of governance that identifies profit-maximization for stockholder benefit as the purpose of the corporation. Milton Friedman’s essay The Social Responsibility of Business is to Increase Its Profits, published in September of that year, provides a handy, if admittedly imprecise, marker for the coronation of the shareholder-primacy paradigm. In the decades that followed, corporate law scholars pursued an ever-narrowing research agenda with the purpose and effect of confirming the shareholder-primacy paradigm. Corporate jurisprudence followed a similar path, slowly at first and later accelerating, to discover in the precedents and …

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 …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

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 …

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Faculty Journal Articles and Book Chapters

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …

“Facet” Or “Facets” Of Executive Privilege In Oklahoma? Vandelay’S Unclear Outcome, Nick Candido

Oklahoma Law Review

No abstract provided.

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Megiddo Tamar

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Ai-Based Evidence In Criminal Trials?, Sabine Gless, Fredric I. Lederer, Thomas Weigend

Faculty Publications

Smart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system.

Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside

Research Collection Yong Pung How School Of Law

In the recent Singapore High Court case of Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37, the claimant argued, inter alia, that evidence of a prior contract between the first defendant and a third party should be admitted to prove that the defendant had entered into a loan agreement with her in his personal capacity. Justice Lee Seiu Kin dismissed her claim, applying s. 14 of the Evidence Act.

Expert Evidence: The Gatekeeper Role Of Justice, Victor E. Schwartz

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu

Duke Law & Technology Review

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …

Assessing Evidence Of Secondary Considerations, Jason Reinecke

Villanova Law Review

No abstract provided.

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

In the decade following the adoption of Georgia’s new evidence code, courts throughout the state have analyzed and ruled upon complex issues involving the interpretation of the new rules, along with how to reconcile the new rules with the vast body of existing precedent. This Article discusses continuing interpretations of Georgia’s evidence rules in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.), for the period of June 1, 2022 through May 31, 2023, specifically delving into: (1) the admissibility of layperson opinion evidence; (2) the admissibilityof “other acts” evidence; and (3) judicial interpretations of “unfairprejudice” in relation to …

Clemency: A Tool For Extreme And Discriminatory Sentences, Kathryn Miller, Jonathan H. Oberman, Cardozo Criminal Defense Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

The Bharatiya Sakshya Bill, 2023: A New And Unimproved Evidence Act, Kunal Ambasta

Popular Media

The secrecy in drafting the bill to replace the Evidence Act is reminiscent of colonial legislation by committee. The lack of consultation has meant that the interpretative confusions in existing law remain unresolved.

The Superfluous Rules Of Evidence, Jeffrey Bellin

Faculty Publications

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

Given the superfluous rules’ covert mission, it should not be surprising that the …

Symposium: Reimagining The Rules Of Evidence At 50, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Prior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation—a phenomenon labeled “horror vacui,” or fear of empty spaces. For example, in Paolo Forlani’s world map of 1565, a yet to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire “to hide [the mapmakers’] ignorance.” Not until “maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Vanderbilt Law School Faculty Publications

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Northwestern University Law Review

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

The Federal Rules Of Emojis: A Proposed Framework For Handling Emoji Evidence In Trial Contexts, Marilyn Hurzeler

Fordham Law Review

Emojis are 3,633 ubiquitous symbols-as-communication used by 92 percent of internet users. These tiny yet influential pieces of evidence hold the power to complete, enhance, mitigate, and flip the meaning of surrounding text. Consequently, court references to emojis have grown exponentially in the last five years. As emojis have become a cornerstone of digital discourse, courts have increasingly encountered the significant impact of emojis on parties’ legal claims. A guide for handling of emoji evidence under the Federal Rules of Evidence (FRE), therefore, is important to afford proper treatment to this relatively new evidentiary form.

This Note discusses how the …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …

A Conversation With Tom Dybdahl, Author Of “When Innocence Is Not Enough: Hidden Evidence And The Failed Promise Of The Brady Rule”, Cardozo Criminal Defense Clinic

Event Invitations 2023

The Supreme Court’s Brady rule of 1963 requires prosecutors to share favorable evidence with defendants. Dybdahl’s book reveals how a series of legal decisions have made it ineffective. Hear what’s at stake when prosecutors conceal evidence, and what can be done about it.

When Innocence Is Not Enough: A Conversation With Tom Dybdahl, Author Of “When Innocence Is Not Enough: Hidden Evidence And The Failed Promise Of The Brady Rule”, Cardozo Criminal Defense Clinic

Flyers 2023-2024

No abstract provided.

Forensic Evidence And Rule 3.8: What Does The Use Of Bite Mark Evidence Tell Us About Prosecutorial Ethics?, Brendan Clemente

Duke Law & Technology Review

Rule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about …

Unreliable Forensic Science, Sarah Ciuffetelli

Quest

The Effectiveness of Forensic Science

Research in progress for CRIJ 1301: Introduction to Criminal Justice

Faculty Mentor: Stefanie LeMaire

Sarah Ciuffetelli uses critical thinking to examine the effectiveness of forensic sciences during criminal investigations. The assignment requires students to find the most prominent scholarly research in forensic sciences and discuss its efficacy. Further, the research leads students to discuss the potential limitations investigators must consider when examining forensic evidence. Lastly, students find at least six scholarly sources to provide an in-depth analysis of the research.

Sarah begins by discussing the history of forensic science and the ever-increasing technology used in …