Law Commons^™

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Meaningful Life: The Future Of Juvenile Justice In Washington After Anderson, Samuel Coren

Seattle University Law Review

Until 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

Out-Of-State Abortion On Company Dime: An Analysis Of State Legislation And Erisa, Erin Elizabeth Hanlon

American University Business Law Review

This Note analyzes the various types of state abortion bans, focusing on those with aiding and abetting clauses. These bans impose civil liability for anyone, including companies providing abortion access benefits, who help a pregnant person gain access to abortion. Additionally, this Note analyzes federal legislation to determine if any retaliatory actions taken against companies violate federal law. This legislation includes the Employee Retirement Income Security Act (“ERISA”) which creates uniformity in insurance and benefits coverage by superseding any state law that references or relates to an ERISA plan. Many advocates believe that ERISA is a company’s greatest defense to …

A Woman's Right To Change Her Mind: The Abortion Pill Reversal Debate, Kelsey Perault

Belmont Law Review

This Note examines the legal, medical, and ethical controversy surrounding abortion pill reversal (APR), a protocol involving the administration of progesterone after ingestion of mifepristone in an attempt to counteract a medication abortion. After outlining the scientific and regulatory history of mifepristone, misoprostol, and progesterone, the Note surveys emerging state legislation that either mandates disclosure of APR as part of informed consent or prohibits the practice altogether. It analyzes the debate within the frameworks of off-label prescribing, medical malpractice, informed consent doctrine, and right-to-try laws. The Note argues that if abortion is legally protected as an exercise of reproductive autonomy, …

Forensic Genetics In The Shadows, Teneille R. Brown, Sarah Duensing, Bob Wong

Utah Law Faculty Scholarship

This article examines the controversial and growing practice of law enforcement agencies searching clinical and public health genetic databases—without a warrant or consent. While police have previously used online public genealogy databases for this purpose, our article describes how they are secretly accessing private genetic information from newborn screening programs and medical tests. We argue this raises serious ethical and legal concerns, blurring the line between healthcare and law enforcement and infecting clinical encounters with the goals of prosecution. This in turn may discourage people from seeking important medical care due to distrust and privacy concerns.

To explore public attitudes …

Health Law And Bigotry Distractions, Daniel G. Aaron, Leslie Francis

Utah Law Faculty Scholarship

Bigotry distractions are strategic invocations of racism, transphobia, or negative stigma toward other marginalized groups to shape political discourse. Although the vast majority of Americans agree on large policy issues ranging from reducing air pollution to prosecuting corporate crime, bigotry distractions divert attention from areas of agreement toward divisive identity issues. This article explores how the nefarious targeting of identity groups through bigotry distractions may be the tallest barrier to health reform, and social change more broadly. The discussion extends the literature on dog whistles, strategic racism, and scapegoating.

Comment On Chapters 1 And 4: Health Ai, System Performance, And Physicians In The Loop, W. Nicholson Price Ii

Book Chapters

Accounts of artificial intelligence (AI) in medicine must grapple, in one way or another, with the interaction between AI systems and the humans involved in delivering healthcare. Humans are, of course, involved throughout the process of developing , deploying, and evaluating AI systems, but a particular role stands out: the human in the loop of an algorithmic decision. In medicine, when an algorithm is involved in a decision , a typical view of the system envisions a human healthcare professional mediating that algorithm - deciding whether and how to implement or react to any recommendation, prediction, or other algorithmic output. …

Market Versus Policy Responses To Novel Occupational Risks, Robert J. Kramer, Elissa Philip Gentry, W Kip Viscusi

Scholarly Publications

The unprecedented occupational risks posed by the COVID-19 pandemic prompted employers to boost wages and federal authorities to propose hazard pay policies. This article estimates a market-based compensating differential for workers facing elevated risks through contact with the public using CPS employment data for 2019–2020 and occupational characteristic data from the US Department of Labor’s Occupational Information Network. The estimated premium for exposure was roughly $820 overall and $1000 for essential workers. These premiums fall short of those proposed—but not enacted—by the federal government and are more commensurate with estimates of the value of a statistical life than were the …

On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, Ainslee Johnson-Brown

Akron Law Student Publications

This Essay argues that state abortion statutes codifying government interests in the health and welfare of the unborn trigger a constitutional right to prenatal care where adequate medical care is constitutionally required in the penal system. It explores the healthcare mandates required by the U.S. Constitution in the era before the passage of the Supreme Court’s decision in Dobbs, specifically looking at abortion access and prenatal provisions in the penological system. It then dissects abortion-related legislation passed by various states in the wake of Dobbs—emphasizing language within the legislative findings that could trigger a constitutional obligation for prenatal health in …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Faculty Scholarship

At the 2000 General Assembly, the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address intellectual property issues relating to genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). Although the IGC initially focused its work on studying these issues, it obtained a new mandate to accelerate its work in October 2009 and began text-based negotiations on an international instrument, or international instruments, a few months later. These negotiations paved the way for WIPO to convene a diplomatic conference to conclude an International Legal Instrument Relating …

Facts On Trial: Alliance For Hippocratic Medicine V. Fda And The Battle Over Mailed Medication Abortion, Rachel Rebouché .

University of Colorado Law Review

No abstract provided.

“Down Where The Grass Grows”: Municipal Abortion Policies After Dobbs, Martha F. Davis

University of Colorado Law Review

When the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization referred future decisions about abortion policies to “elected representatives and the people,” there is no doubt that local governments were included in the designation. In fact, since the 1970s, local governments have been active in pursuing a range of abortion policies in their jurisdictions—both for and against abortion access—that may be in tension with their state governments. Because the ideological orientations of state and local governments often conflict, state preemption is a frequent threat hanging over these local initiatives. There are examples from both sides of the political …

The Unequal Distribution Of Social Risk For Black Men Across The Life-Span. A Novel Framework., Waleed Y. Sami

Adultspan Journal

This conceptual overview offers a comprehensive overview of systemic pathways that negatively impact the mental health of Black Men throughout their lives. Our argument highlights the importance for counselors and mental health professionals to utilize a thorough social risk assessment that considers these pathways in order to effectively address the mental health needs of Black Men while fostering positive working relationships. This overview strongly advocates for the use of context and structural determinants when evaluating mental health symptoms. Without an appropriate understanding of social risk and determinants, counselors may inadvertently perpetuate disparities by decontextualizing symptomology, and reproducing racist discourse.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

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 …

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …