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Full-Text Articles in Law

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Josh Eagle

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to …


When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Eric Biber

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to …


Arizona V. Navajo Nation, Sarah K. Yarlott Feb 2024

Arizona V. Navajo Nation, Sarah K. Yarlott

Public Land & Resources Law Review

Arizona v. Navajo Nation clarified the United States’ trust duties to protect tribal water rights under the Winters doctrine and the 1868 Treaty with the Navajo. Under the Winters doctrine, Indian reservations are permanent homes that include an implicit reservation of water rights. However, Winters did not elaborate on the United States’ role in securing those rights. In Navajo Nation, the Court settled whether the United States has an implied duty under its trust obligations to take affirmative steps in securing water rights for tribes; the Court held no such implied duty exists.


Sackett V. Environmental Protection Agency, Meridian Wappett Feb 2024

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …


Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau Jan 2024

Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau

Ocean and Coastal Law Journal

This comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism.


It's A Soft Shell Life For Me: The Case For Expanding Npdes Permitting To Include Causes Of Ocean Acidification, Natalie L. Nowatzke Jan 2024

It's A Soft Shell Life For Me: The Case For Expanding Npdes Permitting To Include Causes Of Ocean Acidification, Natalie L. Nowatzke

Ocean and Coastal Law Journal

Ocean acidification, a lesser-known counterpart to climate change, is primarily caused by the ocean’s absorption of carbon dioxide from the atmosphere. This absorption, in turn, reduces the ocean’s pH, and has detrimental effects on the health of the entire ecosystem. This Comment examines the applicability of the “functional equivalent test,” coined by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, to the causes of ocean acidification. Using this test, this Comment proposes expanding NPDES permitting under the Clean Water Act to cover some landbased sources emitting carbon dioxide.


Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay Jan 2024

Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay

Maine Law Review

For over forty years the Wabanaki people of Maine have had their sovereignty diminished as a result of the Maine Indian Claims Settlement Act (MICSA), an arrangement with the state and federal government unlike any other tribal sovereignty arrangement in the Unites States. The MICSA was born from a decades-long debate over land rights and resource rights in Maine, culminating in a “compromise” that avoided political conflict at the expense of Wabanaki sovereignty. Under the MICSA, the Wabanaki do not have sovereign status, instead only holding sovereign control over those matters the state deems “internal tribal matters.” Among the many …


Shareholder Primacy Versus Shareholder Accountability, William W. Bratton Jan 2024

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …


Public Primacy In Corporate Law, Dorothy S. Lund Jan 2024

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …


Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler Jan 2024

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 …


Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu Jan 2024

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 …


The Esg Information System, Stavros Gadinis, Amelia Miazad Jan 2024

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …


Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy Jan 2024

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 …


Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain Jan 2024

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 Jan 2024

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 …


A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun Jan 2024

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.


Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell Jan 2024

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 …


The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino Jan 2024

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …


Capitalism Stakeholderism, Christina Parajon Skinner Jan 2024

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 …


Table Of Contents, Seattle University Law Review Jan 2024

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


The Structure Of Corporate Law Revolutions, William Savitt Jan 2024

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 …


The Limits Of Corporate Governance, Cathy Hwang, Emily Winston Jan 2024

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …


Navigating The Tension Between Preservation And Development Pressure: Cities’ Imperative To Save Independent Music Landmarks While Simultaneously Providing For Growth, Mary-Michael Robertson Jan 2024

Navigating The Tension Between Preservation And Development Pressure: Cities’ Imperative To Save Independent Music Landmarks While Simultaneously Providing For Growth, Mary-Michael Robertson

Vanderbilt Journal of Entertainment & Technology Law

While cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the …


Biophilic Design And Biophilic Cities: An Explainer, Kincaid Brown Jan 2024

Biophilic Design And Biophilic Cities: An Explainer, Kincaid Brown

Law Librarian Scholarship

The COVID-19 pandemic brought into focus that outdoor activities in natural settings have a positive impact on mental health, and individuals participating in outdoor activity report higher rates of emotional well-being than individuals who do not participate in such activity. Biophilic design is an architectural practice that aims to connect people to nature through design concepts with one of the benefits being psychological. Other benefits of biophilic design include improvements to environmental quality, physical health, support of animal species and habitats, and more resilient and energy-efficient cities.


Interlocal Power Roulette, Daniel B. Rosenbaum Jan 2024

Interlocal Power Roulette, Daniel B. Rosenbaum

Indiana Law Journal

Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public …


Soil Governance And Private Property, Sarah J. Fox Jan 2024

Soil Governance And Private Property, Sarah J. Fox

Utah Law Review

This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …


Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia Dec 2023

Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia

Journal of Nonprofit Innovation

Urban farming can enhance the lives of communities and help reduce food scarcity. This paper presents a conceptual prototype of an efficient urban farming community that can be scaled for a single apartment building or an entire community across all global geoeconomics regions, including densely populated cities and rural, developing towns and communities. When deployed in coordination with smart crop choices, local farm support, and efficient transportation then the result isn’t just sustainability, but also increasing fresh produce accessibility, optimizing nutritional value, eliminating the use of ‘forever chemicals’, reducing transportation costs, and fostering global environmental benefits.

Imagine Doris, who is …


Balance In The Basin, Casey Lee Mcclellan Dec 2023

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.


Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser Dec 2023

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.


Reclaiming Sacred Homelands: Asserting Treaty Rights And The Path Towards Restoration Of The Badger-Two Medicine, Sarah Greenberg Dec 2023

Reclaiming Sacred Homelands: Asserting Treaty Rights And The Path Towards Restoration Of The Badger-Two Medicine, Sarah Greenberg

American Indian Law Journal

“In order for law to have an influence in the lives of ordinary people, it must have something to do with the emotional feelings of justice, it must speak to our basic humanity, and it must give us common sense directions as to what behavior and beliefs are right and wrong"