Law Commons^™

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Book Review, Mia Swart, On Bonifratròw Street: How A Boy From Lwów Escaped The Nazis (2024), Mark A. Drumbl

Scholarly Articles

On Bonifratròw Street is a book about biography, history, and law. It begins with Katz’s childhood in Lwów, Poland, before World War II. The story unwraps the backgrounds of his parents and other family members, notably his biological father, whose presence and then absence loom large in his life. The book then moves to the war. It details Katz’s life in a variety of places, including Lodz and Warsaw, among others, seen from his perspective as a teenager at the time. The book ends with Katz’s post-war emigration to the US, where he joined a distant relative. Defying odds and …

Becoming The "Bill Of Rights": The First Ten Amendments From Founding To Reconstruction, Kurt T. Lash

Law Faculty Publications

The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

Publications

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle.

Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

Crawford And The Common Law Criminal Trial, Robert K. Kry

University of Michigan Journal of Law Reform

Three weeks after the Supreme Court decided Crawford v. Washington, Justice Scalia delivered the keynote address at the annual meeting of the American Society of International Law. Justice Scalia expounded on his views of when United States courts should and should not rely on foreign law. He urged that courts interpreting a treaty should look to how foreign courts construe the same instrument, on the reasonable assumption that treaty partners would want to strive for a consistent interpretation. By contrast, he took a dim view of relying on modern foreign law to interpret the U.S. Constitution, as the Court …

Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff

Touro Law Review

The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Unblocking The Chain: Leveraging Mediation And Negotiation In Crypto Exchange User Disputes, Jane Perov

Cardozo Journal of Conflict Resolution

No abstract provided.

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.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Sieving Silence: The Communal Question And The Archive Of Indian Constitutional History, Kanika Gauba

National Law School Journal

This paper shows how the archive of Indian constitutional history limits access to constitutional disagreement. It attempts an alternative framing of the issue of political safeguards for religious minorities (‘the communal question’) as a triangle of disagreement among the Sikhs, the Anglo‑Indians, and Sardar Vallabhbhai Jhaverbhai Patel. However, the task is complicated by the silence in the official archives on all three actors. If, as critical historians argue, silence is the very condition of the archive and the writing of history, this paper argues that the historian must ‘sieve’ the inevitably silent archives of Indian constitutional history for perturbations, follow …

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

The Riddle Of Race-Based Redistricting, Travis Crum

Scholarship@WashULaw

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause …

A Regime Of Statutes: Building A Modern President In Gilded Age America (1873-1921), Andrea Scoseria Katz

Scholarship@WashULaw

At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a constitutional settlement that has structured government for approximately one hundred and thirty years. Its roots lie in the period from 1873-1921, and its defining values are interbranch cooperation, delegated problem-solving authority, and administrative expertise. This Article proposes to tell its story.

A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: …

Are Holocaust Denial Laws And Critical Race Theory Bans The Same?, Rob Kahn

Cardozo International & Comparative Law Review

Florida's education rules list Holocaust denial and critical race theory ("CRT") as "theories that distort the past." This is not a fair comparison. Holocaust denial laws and CRT bans are analytically distinguishable. Holocaust denial laws were originally intended to fight hate, and this is the only reason they might be legitimate today. By contrast, CRT bans, for all their well-meaning language aboutprotecting childrenfrom race-based accusations of guilt, intend to silence the past. Indeed, the CRT bans are uncannily similar to the laws used in Turkey to ban discussion of the Armenian Genocide in schools. While one might reject both sets …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

University of Richmond Law Review

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Felix Frankfurter, Collector Of People, John Q. Barrett

Faculty Publications

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …

Holocaust Denial Legislation In The United Kingdom, Germany, Austria, And The United States: How The Law Presently Addresses The Issue And Proposals For Reform, Madeline Epstein

Cardozo International & Comparative Law Review

The note examines the legal frameworks addressing Holocaust denial in the United Kingdom, Germany, Austria, and the United States, highlighting the need for more robust legislation to combat Holocaust denial effectively. It argues that while countries like Germany and Austria have stringent laws criminalizing Holocaust denial, jurisdictions like the U.S. and U.K. rely on civil remedies, which may be insufficient. The analysis advocates for adopting legal measures that balance free speech with the protection of historical truth and human dignity.

Strengthening The General Assembly, Chiara Giorgetti

Law Faculty Publications

Still fully immersed in the devastations of World War II and keenly aware of the inability of the League of Nations to prevent it, the winning nations negotiating the Charter of the new United Nations in San Francisco in April–June 1945 aimed at creating a novel international organisation that embodied a new balance of power mechanism: a system focused on having one – powerful – executive organ and a plenary organ with more of a consultative function (Department of State, 2017). Thus, on one side, the UN system provided a Security Council (SC) – with a two-­ tiered membership constituted …

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

Scholarly Works

Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

De Minimis Non Curat Lex?: Law And Little Things, William Ian Miller

Book Chapters

We are all familiar with the maxim de minimis non curat lex. It is not true at all; a good portion of law is concerned with nothing if not little things. Yes, there are often jurisdictional amounts that purport to deny jurisdiction to disputes too trivial for the courts to get moving. But sometimes these amounts are so minimal that it falsifies the maxim, a maxim which is not classical, apparently being a late medieval modification of de minimis non curat praeter.<.p>

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Consider Buffalo, Pierre Schlag

Publications

No abstract provided.

Introduction To The Symposium On Rabiat Akande, "An Imperial History Of Race-Religion In International Law", S. James Anaya, Adrien K. Wing

Publications

No abstract provided.

Reconstruction, And The Unfulfilled Promise Of Antitrust, Greg Day, Bennett Capers

Scholarly Works

Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using their monopoly power to protect dominant interests, from enacting Black Codes to shuttering Chinese laundries to barring women, immigrants, and minorities from certain professions. It is also that states continue to use their monopoly power in ways that entrench inequality, from zoning restrictions to eminent domain to regulations that, in effect, bar Black …

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke Norris

Law Faculty Publications

The last great confrontation between courts and the regulatory state occurred at the turn of the previous century. As courts in the first decades of the twentieth century resisted regulatory laws designed to protect workers and curb market excesses, they sustained broad legal and public critique, including claims that they were guardians of corporate power and monied and propertied interests. The showdown, as is familiar fare, was seemingly resolved in the New Deal, with the Supreme Court and judiciary largely accepting the constitutionality of federal and state regulatory laws. The compromise that emerged, dubbed the “New Deal settlement,” ostensibly called …