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Articles 31 - 60 of 60
Full-Text Articles in Law
Property 101: Is Property A Thing Or A Bundle?, Eric R. Claeys
Property 101: Is Property A Thing Or A Bundle?, Eric R. Claeys
Seattle University Law Review
This Review Essay has two aims. My more immediate aim is to assess where Merrill and Smith's contribution fits in the market for first-year Property casebooks. In short, Property: Principles and Policies represents an important advance in property pedagogy. By focusing thematically on exclusion's efficiency, Merrill and Smith have captured many important features of property overlooked by other casebooks. My longer-range aim is to advance the reclamation project Merrill and Smith have begun, by clarifying further the work that exclusivity does in property law. Property: Principles and Policies brings contemporary scholarship a long way toward appreciating the virtues of exclusivity, …
Protecting Cultural Property Through Provenance, Christopher D. Cutting
Protecting Cultural Property Through Provenance, Christopher D. Cutting
Seattle University Law Review
This Comment recommends that Congress take action to bring consistency to the treatment of cultural property in two ways. First, ownership disputes should be settled based on the quality of provenance between competing claimants, a system similar to land title registration. Provenance is the history of a piece of cultural property that shows where it came from and where it has been. Second, to ensure provenance is a complete guide to title all cultural objects, both illegally exported and stolen cultural property should receive the same treatment. Part II of this Comment discusses the history of cultural property regulation. Next, …
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Seattle University Law Review
This Essay suggests that many of the same reasons why Saucier proved so controversial--and perhaps even unworkable--in qualified immunity cases are less salient in the context of post-conviction habeas corpus, where the value of reaching potentially unnecessary questions of constitutional law far outweighs the cost. Put another way, my thesis is that, even though the Saucier sequence is no longer mandatory in qualified immunity jurisprudence, such a rigid methodological order of battle would be of great utility in the context of post-conviction habeas corpus--and in the adjudication of “new” rules of criminal law more generally. In that context, this Essay …
Legal Theology: Law, Modernity And The Sacred, Peter Fitzpatrick
Legal Theology: Law, Modernity And The Sacred, Peter Fitzpatrick
Seattle University Law Review
This article argues that there is both sameness and difference as between the secular and the religious, and that law, modern law, is constituently enmeshed within this sameness and difference. That combination of sameness and difference, along with the integral part of law, is traced in a cumulation of three historicities, the first being the creation of the world's imperium, of the modern world-system, in the sixteenth century. Then, with the second historicity we have the time of revolutions, seen here as almost revolutions, of the seventeenth and eighteenth centuries. And finally, with the third historicity we have the time …
A Limited Defense Of (At Least Some Of) The Umpire Analogy, Michael P. Allen
A Limited Defense Of (At Least Some Of) The Umpire Analogy, Michael P. Allen
Seattle University Law Review
This Essay provides at least a limited defense of some parts of the umpire analogy and ultimately suggests that this analogy may tell us something important about the more general role of courts in the United States. This Essay proceeds in four parts. Part II explores in more depth what those making the umpire analogy appear to mean. At its heart, the analogy principally has been used to address the substantive decision making of judges. This Part will explain that there is more to the analogy than such a narrow decisional focus suggests. Part III builds on Part II. It …
State Regulation Of Franchising: The Washington Experience Revisited, Douglas C. Berry, David M. Byers, Daniel J. Oates
State Regulation Of Franchising: The Washington Experience Revisited, Douglas C. Berry, David M. Byers, Daniel J. Oates
Seattle University Law Review
Thirty-six years ago, and one year after Washington became the second state in the nation to enact a statute regulating franchise relationships, Professor Donald S. Chisum wrote the seminal article on franchising in Washington, State Regulation of Franchising: The Washington Experience. Professor Chisum's article has been one of the few reference sources for Washington franchise law, and it has been the primary source relied on by courts addressing claims under Washington's Franchise Investment Protection Act (FIPA). Since Professor Chisum originally published his article, the Federal Trade Commission (FTC) has promulgated and amended regulations governing the sale of franchises nationally, …
Resolving The Softwood Lumber Dispute, Sarah E. Lysons
Resolving The Softwood Lumber Dispute, Sarah E. Lysons
Seattle University Law Review
This Comment argues that the London Court of International Arbitration will be able to resolve disputes involving softwood lumber but not resolve the softwood lumber dispute. Part II reviews the history of the dispute. Part III discusses the lessons that Canada and the United States have learned about resolving trade disputes, several of which are reflected in the current agreement. Part IV examines why, although the current agreement provides a degree of neutrality and finality to the dispute that prior regimes lacked, inherent political pressures will prove too large for even this agreement. Finally, Part V concludes that the dispute …
"Separated Unto The Gospel Of God": Political Theology In Badiou And Agamben, Charles Barbour
"Separated Unto The Gospel Of God": Political Theology In Badiou And Agamben, Charles Barbour
Seattle University Law Review
This paper begins with a comparison of two texts: Alain Badiou's Saint Paul: The Foundation of Universalism and Giorgio Agamben's The Time that Remains: A Commentary on the Letter to the Romans. In Parts III and IV, I will summarize in very broad terms the details of Badiou's and Agamben's respective appropriations of Paul. Within each of these Parts, I will speak a little bit about the implications of these various claims for contemporary legal theory-- at least as I understand it, and I am no expert. Finally, in Part V, I will discuss briefly an alternative reading of Paul, …
Panelist Biographies, Editor's Note, Seattle University Law Review
Panelist Biographies, Editor's Note, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Introduction: Notes Towards An Alternate Vision Of The Judicial Role, Andrew M. Siegel
Introduction: Notes Towards An Alternate Vision Of The Judicial Role, Andrew M. Siegel
Seattle University Law Review
No abstract provided.
A Rhetorician's View Of Religious Speech In Civic Argument, Jack L. Sammors
A Rhetorician's View Of Religious Speech In Civic Argument, Jack L. Sammors
Seattle University Law Review
I first examine and reject liberal political methods of addressing the question of religious speech in civic argument, all of which depend upon norms external to the argument that are then excluded from it. Next, in proposing a method that relies only upon the constitutive norms of civic argument itself, I offer a description of civic argument as rhetoric, examine the risks of religious rhetoric in this civic argument, and examine the constitutive norms of civic argument. I address whether the constitutive norms of civic argument are sufficient restraints upon religious rhetoric such that reliance upon external norms is not …
Voice, Self, And Persona In Legal Writing, Chris Rideout
Voice, Self, And Persona In Legal Writing, Chris Rideout
Faculty Articles
From the author's view, sorting out the complexity of voice—and discussing voice in legal prose—requires a rethinking of who the writer is in legal discourse and, importantly, how that writer is represented in legal prose. It becomes a question not of self expression, but of self-representation and persona. This article will first look at discussions of voice in writing—beginning with what we might mean by voice, then with discussion of personal voice, and then of professional voice. The article then offers another model for looking at voice — a discoursal model — and use that model to reconstruct the idea …
Richard Delgado And The Politics Of Citation, Robert S. Chang
Richard Delgado And The Politics Of Citation, Robert S. Chang
Faculty Articles
Twenty-five years ago, Professor Richard Delgado published The Imperial Scholar. The article asserted that a group of white scholars dominated the field of civil rights scholarship to the exclusion of minority scholars. It created a firestorm of sorts with what one critic called a "serious charge of invidious racism on the part of respected legal scholars." Professor Derrick Bell described the piece as "an intellectual hand grenade, tossed over the wall of the establishment as a form of academic protest." Whether as firestorm or grenade, this foundational piece had a tremendous impact on the legal landscape. This brief essay examines …
Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang
Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang
Faculty Articles
In this essay, the authors offer an alternative rationale for amicus practice. This rationale emerges from thier experience working on a brief in support of marriage equality that sixty-three Asian American organizations endorsed. They found that an amicus brief can be an effective tool to engage and educate community-based organizations and their constituencies, thereby helping to advance social justice issues. Their story also illustrates how amicus practice can be used to organize communities around a legal issue and to democratize the courts. In this way, even if the effect of amicus briefs on litigation outcomes may be marginal, the process …
How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton
How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton
Faculty Articles
This article seeks for the very first time to inform that debate with a notion of property as an essential aspect of human identity in a "mash-up of sorts that might be called Fourth Amendment jurisprudence meets the Radinesque Property of Personhood. Using an expanded version of the notion of property developed by Professor Margaret Radin in her pioneering work Property and Personhood, the Fourth Amendment must contend with the social reality that some aspects of "ownership" or entitlement to property, and some level of vindication of those interests, are essential to the formation and viability of complete human beings. …
Documenting Gender, Dean Spade
Documenting Gender, Dean Spade
Faculty Articles
This article analyzes gender reclassification policies, which determine when an administrative agency will record a change to an individual's gender marker. It’s analysis takes place in three policy contexts: placement in gender-segregated facilities, changing gender marker on IDs, state provision of healthcare that prohibit gender discrimination on the record for those seeking care. It looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification. The article also asks whether the assumed usefulness of gender for identity tracking in the variety of state programs reviewed is well-founded, and it …
Asking Jurors To Do The Impossible: A Response To Peter Tiersma, Janet Ainsworth
Asking Jurors To Do The Impossible: A Response To Peter Tiersma, Janet Ainsworth
Faculty Articles
Comments from Janet Ainsworth at the Summers-Wyatt Symposium - Asking Jurors to Do the Impossible - Friday March 27, 2009 Transcript.
International Judicial Affairs, Robert Alsdorf
International Judicial Affairs, Robert Alsdorf
Faculty Articles
The article reports on training programs launched by several countries for their judges. It is reported that the International Judicial Affairs (IJA) Committee was established in the U.S. in the year 2007 to develop opportunities for judges to work with fellow judges in other jurisdictions in mutually beneficial ways. Sierra Leone, as reported, has also carried out reforms in their legal system through their Justice Sector Reform Programme (JSRP).
Calling Your Bluff: How Prosecutors And Defense Attorneys Adapt Pleas Bargaining Strategies To Increased Formalization, Deirdre Bowen
Calling Your Bluff: How Prosecutors And Defense Attorneys Adapt Pleas Bargaining Strategies To Increased Formalization, Deirdre Bowen
Faculty Articles
This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty-two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases do not fit the "normal crimes" model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys …
Secrecy And Democratic Decisions, Mark A. Chinen
Secrecy And Democratic Decisions, Mark A. Chinen
Faculty Articles
Secrecy to protect intelligence sources and methods appears often in the nation's discourse about controversial national security matters. Often it is asked whether such secrecy is consistent with the nation's democratic principles and processes. This article argues such principles and processes provide a framework through which we try to answer questions about secrecy and indeed legitimate them, but are often too broad to provide definitive guidance in specific cases. At the same time, the sources and methods argument itself is overbroad because of the nature of the sources and methods themselves; the tentative nature of intelligence assessments derived from those …
Marks Of Rectitude, Margaret Chon
Marks Of Rectitude, Margaret Chon
Faculty Articles
Trademarks and certification marks increasingly denote sustainability or social responsibility standards. These marks of rectitude are particularly noticeable in the context of global trade, where market integration is accompanied by relatively uneven integration of environmental, labor and other standards, and where consumers in the so-called global North choose how to empower producers and/or encourage development of markets in the global South. But consumer participation in these transactions is under-explored by reference to criteria such as the quality not to mention accountability and transparency of the standards embedded within the goods or services. Newer stakeholders and meaning-makers such as the largely …
Crossover, Richard Delgado
Crossover, Richard Delgado
Faculty Articles
Should minority writers aim for a "crossover" audience of mainstream (white) readers or write mainly for a circle of readers like themselves, viz., minorities or people of color? Despite the attractions of achieving crossover status -- including fame, fortune, and book reviews -- the article argues that writers of color should usually visualize an audience of their peers, that is, readers of color. Writing for a broad audience of mostly white readers risks that the minority writer will adopt topics, language, and approaches that will appeal and ring true to this group. Consciously or unconsciously the writer may pull his …
Liberal Mccarthyism And The Origins Of Critical Race Theory, Richard Delgado
Liberal Mccarthyism And The Origins Of Critical Race Theory, Richard Delgado
Faculty Articles
The article discusses the emergence of liberal McCarthyism and the origins of critical race theory in the U.S. It reviews the conflicting stories from Harvard Law School in Massachusetts and the University of California in Berkeley and Los Angeles about critical race theory. The article examines the role of radical professors Kingman Brewster, James Conant, Clark Kerr and Albert Bowker in McCarthyism. The author relates how professors David Trubek, Richard Abel, Staughton Lynd and Anthony Platt lost their job due to liberal McCarthyism.
The Classic Rule Of Faith And Credit, David Engdahl
The Classic Rule Of Faith And Credit, David Engdahl
Faculty Articles
Since the late nineteenth century, orthodox doctrine under the Constitution's Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story's 1833 Commentaries on the Constitution of the United States was essentially sound. This article argues, however, that Justice Story's view had been endorsed by almost no one before him and actually contradicted the "classic rule" of faith and credit, which Justice Story had articulated in 1813. The Supreme Court, moreover, consistently reiterated the "classic rule" despite Justice Story's change of mind, continuing to do so even after his death. By the …
Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Proposed Expansion Of The Panama Canal, Carmen Gonzalez
Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Proposed Expansion Of The Panama Canal, Carmen Gonzalez
Faculty Articles
Post-colonial societies endowed with abundant natural resources often under-perform economically when these resources are exploited as economic enclaves lacking significant linkages to other sectors of the economy. The Panama Canal, a symbol of Panamanian identity and a reminder of Panama's lengthy colonial history, has historically functioned as an economic enclave akin to the mineral extraction and industrial agriculture enclaves prevalent throughout the developing world. Based on a case study of the contentious decision to expand the Panama Canal, this article examines the ways in which the colonial legacy distorts the development planning process, and discusses strategies that might be deployed …
Knocked Down Again: An East L.A. Story On The Geography Of Color And Colors, Steven W. Bender
Knocked Down Again: An East L.A. Story On The Geography Of Color And Colors, Steven W. Bender
Faculty Articles
The article discusses the history of struggle of Latin Americans and the legacy of gang violence in East Los Angeles, California. The author states that the positive thing about the place is the closeness of the community and families. However, the 2000 Census states that ninety-seven percent of the city's population is Latin American with about a quarter living below poverty line. Moreover, sociologists consider gang warfare as a defense of turf marked by defined geographic boundaries.
Externships For Millennial Generation Law Students: Bridging The Generation Gap, Susan Mcclellan
Externships For Millennial Generation Law Students: Bridging The Generation Gap, Susan Mcclellan
Faculty Articles
This article examines the literature about our newest generation of law students, the Millennials, and offers suggestions to help externship faculty work with supervisors and students to avoid potential problems that may arise from generational differences. After reviewing the literature, the article discusses both positive and negative Millennial generation traits and explains how identified generational problems might arise in externship field placements. The article then offers suggestions from psychologists, managerial literature, and the author's experience to help externship directors and faculty work with field supervisors and students to avoid or resolve issues. The article concludes that members of the Millennial …
Trans Politics On A Neoliberal Landscape, Dean Spade
Trans Politics On A Neoliberal Landscape, Dean Spade
Faculty Articles
These edited Keynote remarks from the Temple Political and Civil Rights Law Review Symposium on transgender law address how questions of law reform strategy relate to critical understandings of neoliberalism. The paper addresses questions of administrative governance, identity documentation, the relationship between law and social movements, and questions of economic and racial justice as applied to transgender politics.
Trans Law Reform Strategies, Co-Optation, And The Potential For Transformative Change, Dean Spade
Trans Law Reform Strategies, Co-Optation, And The Potential For Transformative Change, Dean Spade
Faculty Articles
This paper considers two critiques of how law and rights struggles co-opt social movements and applies them to the example of the emergent law reforms in the area of transgender rights. First, it considers the limitations of the discrimination principle. Second, it looks at the emergent critique of "nonprofitization." Examining how the focus on formal legal equality and the growth of non-profit formations that centralize the concerns and experiences of white and upper class people have impacted gay and lesbian rights work, the paper suggests that these avenues present dangers to creating meaningful transformation of conditions facing trans population, including …
Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane Stoever
Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane Stoever
Faculty Articles
HIV/AIDS dramatically impacts domestic violence survivors' needs and demands reconceptualization of current responses to domestic violence. This article aims to illuminate the problem of domestic violence in the context of HIV/AIDS and to prompt further development of legal response systems. Specifically, this article brings together the worlds of law, public health, and women's lived experiences to argue for recognizing and responding to domestic violence in the context of HIV/AIDS in the United States. Utilizing accounts of clients' experiences and data from public health studies, this article sets forth eight categories of HIV/AIDS-related domestic violence: repercussions from partner notification, use of …