Common Law Commons^™

Federal Pleading Standards In State Court, Marcus Gadson

Michigan Law Review

Most state courts cannot follow both their state constitutions and federal pleading standards. Even if they could, policy considerations unique to states compel state courts to reject federal pleading standards. This is because federal courts have changed pleading standards to allow judges to make factual determinations on a motion to dismiss and to require more factual detail in complaints. While scholars have vigorously debated whether these changes are wise, just, and permissible under the federal rules and the Constitution, they have ignored the even more important questions of whether state courts can and should adopt those pleading standards. The oversight …

Microcontextual Considerations In Ouster Clause Analysis: A Comparative Study Of Parallel Trends In The United Kingdom And Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

The classic legal approach to legislative ouster clauses in the common law was articulated by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission. However, recent developments in both the United Kingdom and Singapore indicate a judicial desire to shift away from that approach towards a more flexible analysis of an ouster clause’s effect, centered on the rule of law. This article highlights the significance of those parallel developments, especially given the starkly differing constitutional contexts shaping the approach to ouster clauses in the two jurisdictions. Capitalizing on these trends, it proposes a comparative assessment of the materiality …

Blocking Nature's Vulnerable Calls For Help: The Tenth Circuit Dials Into The Telecommunications Act's Federal Environmental Preemption Clause In Santa Fe Alliance V. City Of Santa Fe, Samantha Speiss

Villanova Environmental Law Journal (1991 - )

No abstract provided.

National Pork Producers Council V. Ross: Brief Of Professors Barry Friedman And Daniel T. Deacon As Amici Curiae In Support Of Respondents, Daniel T. Deacon

Appellate Briefs

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University Law School and is one of the country’s leading authorities on constitutional law and the federal courts. Daniel T. Deacon is a Lecturer at the University of Michigan Law School and has published extensively on topics that include constitutional and administrative law. Professors Friedman and Deacon are the authors of A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877 (2011), a leading article examining the origins of the Commerce Clause and defending the validity …

Private Search And Seizure: The Constitutionality Of Anton Piller Orders In Canada, Dimitros Valkanas

Dalhousie Law Journal

This paper examines the constitutionality of the Anton Piller order in Canadian law. First, the paper examines whether Anton Piller orders overall are unconstitutional through three major avenues of attack: (i) Charter challenges; (ii) the ultra vires doctrine; and (iii) the principle of natural justice, audi alteram partem. Afterwards, in the event that no challenge against Anton Piller orders broadly would succeed, the paper examines whether their uniquely Canadian variant known as a “rolling” or “John (or Jane) Doe” Anton Piller orders could be challenged, looking at both Charter and non-Charter challenges. Finally, this paper proposes the imposition of additional …

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Torres V. Texas Department Of Public Safety: Brief Of Scholars Of Constitutional Law And The Law Of Federal And State Courts As Amici Curiae In Support Of Petitioner, Evan H. Caminker

Appellate Briefs

Amici curiae, listed in the Appendix, are professors of constitutional law and of the law of federal and state courts. Amici hold varying views on state sovereign immunity and the interpretation of the Eleventh Amendment. Amici join in this brief because they agree that the Court’s jurisprudence on these issues reflects inherent tensions that justify consideration of a new approach. Amici propose an approach to sovereign immunity that is grounded in both constitutional text and broader common law principles, and that, in amici’s view, is faithful to the original constitutional design and the text and purpose of the Eleventh Amendment. …

James Madison And Strict Constructionism, Drew Lemay

Liberty University Journal of Statesmanship & Public Policy

The United States Constitution has been a battleground between loose and strict constructionism since it was first ratified by the original thirteen colonies. To this day, the debate has continued to rage on across political groups. The question that remains to be answered is which method of interpretation did the Founding Fathers subscribe and intend to be utilized for the following generations. This essay seeks to partially answer that question by analyzing the view of one particular Founder: James Madison, the “Father of the Constitution.”

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …

Regulating Fraud On The Marketplace Of Ideas: Federal Securities Law As A Model For Constitutionally Permissible Social Media Regulation, Michael M. Epstein

Seattle University Law Review

This article begins with an introduction discussing speech falsity and the duty under U.S. law by comparing commercial and noncommercial speech. Part I explores the problem of online disinformation. Part II addresses online disinformation in a non-commercial context. Part III contains three subsections assesses non-transactional commercial speech as a basis for non-commercial disinformation regulation. Part IV advocates for a fiduciary duty to fashion a remedy. Part V of this article concludes by suggesting a possible solution for creating a online disinformation law that could survive the First Amendment.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Foreword, Seattle University Law Review

Seattle University Law Review

Foreward

Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, Scott Johns

Seattle University Law Review

Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.

But rather than …

Race And Washington’S Criminal Justice System 2021: Report To The Washington Supreme Court, Task Force 2.0 Research Working Group

Seattle University Law Review

This report is an update on the 2011 Preliminary Report on Race and Washington’s Criminal Justice System. This update does not include as context the history of race discrimination in Washington, and readers are encouraged to view the 2011 report for its brief historical overview.14 The 2011 report began with that historical overview because the criminal justice system does not exist in a vacuum. Instead, it exists as part of a legal system that for decades actively managed and controlled where people could live, work, recreate, and even be buried.

Members of communities impacted by race disproportionality in Washington’s criminal …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, Kathryn Chan, Howard Kislowicz

Dalhousie Law Journal

Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, “intervening” in judicial proceedings in an effort to advance their preferred interpretations of particular rights.

Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts’ understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom. …

Divorce Without Marriage: Taxing Property Transfers Between Cohabiting Adults, Keeva Terry

University of Cincinnati Law Review

No abstract provided.

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Scholarship

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Elisabeth Haub School of Law Faculty Publications

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents.

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

No, The Firing Squad Is Not Better Than Lethal Injection: A Response To Stephanie Moran’S A Modest Proposal, Michael Conklin

Seattle University Law Review

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that the firing squad is the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This Essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Privacy-As-Property: A New Fundamental Approach To The Right To Privacy And The Impact This Will Have On The Law And Corporations, Sevion Dacosta

CMC Senior Theses

The most popular conception of the right to privacy stems from Warren and Brandeis’s description of privacy as “the right to be left alone.” This theory ultimately points to a more fundamental approach to the right to privacy rooted in property rights. This fundamental approach - which I call privacy-as-property - is what I establish in this paper. I argue that the Lockean concept of property that “every man has a property in his own person” provides the foundation for the right to privacy. Privacy-as-property begins with the fundamental right to control oneself. Because of this intrinsic right, your property …

Free Speech In The Modern Age, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …