Constitutional Law Commons^™

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Discretion, Judgement, And The Supreme Court’S Docket: Litigating Presidential Immunity, Barry Sullivan

Loyola University Chicago Law Journal

The following remarks were delivered at Loyola University Chicago School of Law's Annual All-Journals Banquet in April 2024. The Supreme Court had not yet heard oral arguments or rendered a judgment in Trump v. United States, the presidential immunity case stemming from the former president's alleged efforts to overturn the 2020 election. In his remarks, Professor Sullivan reflected on the importance for American democracy of the issue presented in the case, namely, the extent to which a former president may be held legally responsible for criminal acts he allegedly committed during his presidency. The remarks did not go to the …

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

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 …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

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 …

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 …

Datafication, Power, And Publics In India's National Digital Health Ecosystem, Ramya Chandrasekhar

Socio-Legal Review

While evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (‘NDHE’) – a digital system for the generation, use, and “frictionless” circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure.” Seeing the NDHE as a data infrastructure allows us …

On The Promises And Failures Of Anticolonial Constitutionalism In India: A Review Of Sandipto Dasgupta’S Legalizing The Revolution, Shaunna Rodrigues

Socio-Legal Review

This review of Sandipto Dasgupta’s Legalizing the Revolution: India and the Constitution of the Postcolony (Cambridge University Press 2024) delves into the complex legacy of constitutionalism in postcolonial India. The book assesses constitutionalism in India as an instrument that translated the revolutionary aspirations of an anticolonial mass movement into a legal framework for societal transformation. Dasgupta illuminates constitutionalism’s dynamic mediation of conflicting visions from India’s diverse masses and its political leaders, demonstrating how it intertwined the promise of anticolonialism with enduring tensions of representation, legal interpretation, and bureaucratic planning. He critically analyses its role in the development discourse in India, …

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 …

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 …

Lest We Be Lemmings, Claire Wright

Faculty Articles

Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO₂ - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, …

The State Of Our Republic: State Constitutions’ Role In Creating A More Perfect Union, Caroline Bullock

CMC Senior Theses

This thesis situates state constitutionalism in the modern context of federal constitutional paralysis. By tracing patterns of state constitutional development, we find that states were always the fundamental setting of democracy, and there has always been critical action happening at state legislatures, in state courts, and through state constitutional change. State constitutions provide an active means to achieve progress and protect rights not federally enshrined (and thus, endangered by the political process). The use of state constitutions to prescribe ways of life, protect individual and specialized rights, and to limit local governments has always occurred, but with the current federal …

From The Barrel To The Border: Exploring The Roots And Ramifications Of Gun Trafficking From The United States To Mexico, Alexandra Punishill

CMC Senior Theses

Nowhere is the discussion surrounding gun violence more prominent than in the United States, with the impacts of our gun-friendly culture being felt around the world. This thesis analyzes the dynamics of gun trafficking from the United States to Mexico and sheds light on its role in fueling the epidemic of gun violence south of the border. It is argued that the particular system of federalism adopted by the United States has led to a variety of state-level gun regulations that have shaped domestic gun policy and have had an international impact. Despite Mexico’s persistent efforts to combat the gun …

Righteous Fury: A Natural Rights Approach To The Individual Right To Bear Arms Under The Ninth And Fourteenth Amendments, Nikhil Agarwal

CMC Senior Theses

The individual right to bear arms for self-defence has been grounded by the modern Supreme Court in the Second Amendment and incorporated against the States by the Due Process Clause of the Fourteenth Amendment. However, a close examination of both the majority and dissenting opinions in each of the three landmark gun-rights cases decided by the Supreme Court this century- DC v. Heller, McDonald v. Chicago, and New York State Rifle & Pistol Association v. Bruen- reveal how difficult is to determine the original meaning of the Second Amendment, and expose weaknesses in the Court’s current substantive due process …

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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 …

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 …

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 …

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 …

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 …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …