Law Commons^™

How The “Black Criminal” Stereotype Shapes Black People’S Psychological Experience Of Policing: Evidence Of Stereotype Threat And Remaining Questions, Cynthia J. Najdowski

Psychology Faculty Scholarship

Cultural stereotypes that link Black race to crime in the U.S. originated in and are perpetuated by policies that result in the disproportionate criminalization and punishment of Black people. The scientific record is replete with evidence that these stereotypes impact perceivers’ perceptions, information processing, and decision-making in ways that produce more negative criminal legal outcomes for Black people than White people. However, relatively scant attention has been paid to understanding how situations that present a risk of being evaluated through the lens of crime-related stereotypes also directly affect Black people. In this article, I consider one situation in particular: encounters …

Supplementing The Record: The Life And Career Of Judge Edmund L. Palmieri, Todd C. Peppers, Bridget Tainer-Parkins

Research Papers

For approximately ninety years, lower federal court judges have hired law clerks to process the work of the courts. While the law clerks typically go onto successful careers as attorneys, law professors, government officials, and judges, it is rare that the former apprentices become so famous that their mentors are lost in their oversized shadows. This is the case, however, for former federal district court Judge Edmund L. Palmieri. A highly respected jurist who sat in the Southern District of New York for over three decades, Palmieri has seemingly become the answer to the following trivial pursuit question: "What federal …

Offshore Entanglements, Martin W. Sybblis

Faculty Articles

For decades, scholars have struggled to determine how to deploy laws and legal institutions to spur economic prosperity. But, without knowing which legal rules and institutions to prioritize for a particular social context, the outcomes have been generally unsatisfactory. The case of offshore financial centers provides fresh and compelling new insights into this puzzle. This Article uses the sociological concept of community economic identity (“CEI”) to understand why some offshore financial centers prioritize investments in legal institutions that bolster their offshore finance enterprises while others do not. CEI refers to a community’s shared identity that is linked to a specific …

“The Glorious Liberty Of The Children Of God”: Toward A Christian Defense Of Human Rights, John Witte Jr.

Faculty Articles

It will come as a surprise to some human rights lawyers to learn that Christianity was a deep and enduring source of human rights and liberties in the Western legal tradition. Our elementary textbooks have long taught us that the history of human rights began in the later seventeenth and eighteenth centuries. Human rights, many of us were taught, were products of the Western Enlightenment—creations of Grotius and Pufendorf, Locke and Rousseau, Montesquieu and Voltaire, Hume and Smith, Jefferson and Madison. Rights were the mighty new weapons forged by American and French revolutionaries who fought in the name of political …

Restating The Law In The Shadow Of Codes: The Ali In Its Formative Era, Deborah A. Demott

Faculty Scholarship

This chapter recounts the American Law Institute’s (ALI’s) history in its formative era (1923–1945), drawing from archival sources to deepen existing accounts of the ALI’s self-definition as an ongoing institution. The history is more complex than it appears in prior accounts because institutional necessities—including funding—as well as multiple contingencies shaped both the ALI and its work. Likewise, the ALI’s signal work in this period, the Restatement, departed in significant ways from its original plan. Generating the revenues requisite to its ongoing existence required that the ALI partner with commercial publishers and, at their urging, separately publish Annotations for each Restatement …

The Territories Under Text, History, And Tradition, Andrew Willinger

Faculty Scholarship

In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent …

How Patents Became Politics, Steven Wilf

Faculty Articles and Papers

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for Open Source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a little-known …

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Art Of International Law, Hilary Charlesworth

American University Law Review

International lawyers study international law primarily through its written texts—treaties, official documents, judgments, and scholarly works. Critical to being an international lawyer, it seems, is access to the written word, whether in hard copy or online. Indeed, as Jesse Hohmann observes, “the production of text can come to feel like the very purpose of international law.”

The Trial Of Thomas More - Robert Bolt's A Man For All Seasons, Jonathan Van Patten

Faculty Publications

The path from Magna Carta to the United States Constitution and the Bill of Rights runs through the trial of Thomas More. Robert Bolt's magnificent portrayal of that trial in A Man for All Seasons provides an opportunity to learn and reflect on how a political trial can teach us about the meaning of justice. The search for universals must be rooted in the particulars. The particulars in this case will also resonate with modern audiences who seek to understand their own politics in times of crisis.

Fractional Sovereignty, Roger Michalski

Faculty Articles

The axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism …

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Roger Williams University Law Review

No abstract provided.

The International Law Profile Of The Ali, George A. Bermann

Faculty Scholarship

Though its focus, most notably in its Restatements, has traditionally been on domestic U.S. law, the American Law Institute (ALI) has conspicuously turned “international” in recognition of the fact that U.S. law does not, in the present world, operate in isolation from the law of foreign jurisdictions and international institutions. To be sure, the two most prominent Restatements in the field continue to bear the term “U.S.” in their title: “Restatement of the Foreign Relations Law of the United States” and “The U.S. Law of International Commercial and Investor-State Arbitration.” But both present bodies of law profoundly influenced by, and …

The Restatement Of Property: The Curse Of Incompleteness, Thomas W. Merrill

Faculty Scholarship

The central feature of the American Law Institute’s Restatement of Property is that it remains incomplete after nearly seventeen volumes produced over nearly ninety years. The principal explanation for this is the proclivities of the Reporters who have been responsible for the first three iterations of this effort. Some of these proclivities, such as a commitment to meticulous research, have been commendable. But the incompleteness of the effort has reduced the influence of the property Restatement, relative to other Restatements like contracts and torts. The chapter concludes with a description of the Fourth Restatement of Property, now underway, and the …

Bridging The Gap In Lgbtq+ Rights Litigation: A Community Discussion On Bisexual Visibility In The Law, Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy, Mya Reid

Faculty Scholarship

This essay discusses the genesis of BiLaw, a coalition of Bi+ lawyers and law students, and highlights the importance of a 2021 Lavender Law session organized by BiLaw in which representatives of LGBT rights organizations discussed the erasure of Bi+ persons in jurisprudence and the importance of, and their commitment to, serving the needs of the Bi+ community, along with those of other stakeholders. A transcript of the groundbreaking discussion follows the essay.

Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

This article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …

Hallows Lecture: Complexity And Contradiction In American Law, Gerard E. Lynch

Marquette Law Review

None.

An Appeal To Books, Amir H. Ali

Michigan Law Review

This feels a fit, even urgent, moment to celebrate our books and the role they play vis-à-vis the law, the courts, and the truth.

As this issue goes to print, our nation’s highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court’s majority has doubled down on deciding major constitutional questions based on “history and tradition”—that is, the majority’s understanding of what the nation was like centuries ago. Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke …

Policing Queer Sexuality, Ari Ezra Waldman

Michigan Law Review

A Review of Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. By Anna Lvovsky.

Beyond “Big Government”: Toward New Legal Histories Of The New Deal Order’S End, Gabriel L. Levine

Michigan Law Review

A Review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. By Paul Sabin.

Akhil Amar’S Unusable Past, Gregory Ablavsky

Michigan Law Review

A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar.

The Gloss Of War: Revisiting The Korean War’S Legacy, Mary L. Dudziak

Michigan Law Review

In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of …

Fight For Your Life: A Study Of Fairness In The Ultimate Fighting Championship's Anti-Doping Policy Appeals Process, Brandon Hamroff

Cardozo Journal of Conflict Resolution

No abstract provided.

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, Dan T. Coenen

Scholarly Works

One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention …

Removal Rehashed Legal History: Response, Andrea Scoseria Katz, Noah A. Rosenblum

Scholarship@WashULaw

We are grateful to the Harvard Law Review Forum for the chance to respond in these pages to The Executive Power of Removal. In this new piece, Professors Aditya Bamzai and Saikrishna Bangalore Prakash aim to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.

There are high hurdles to proving this argument, and this piece fails to scale them. There is little evidence for any of these separate contentions, whether we look to the Constitution’s text or the history …