Courts Commons^™

The Wrongly Read Right: Insurrection And The Second Amendment Right To Bear Arms, Aman Mcleod, Jacob M. Jones

Dickinson Law Review (2017-Present)

Several judges and scholars have interpreted the Second Amendment as creating a right to bear arms to facilitate armed resistance against the government whenever it threatens to impose tyranny. These arguments have been made in books, scholarly articles, and court decisions. Many of the proponents of the pro-armed insurrection interpretation of the Second Amendment root this point of view in the history of the right to bear arms in the Anglo-American legal tradition. This Article argues that the Second Amendment does not create a right to bear arms to resist government authority because such a right is inconsistent with several …

Considering The Child’S Wishes—But How? Allowing Children To Speak In Their Custody Matters, Joshua Hanson

Dickinson Law Review (2017-Present)

In the United States, states universally may consider the child’s wishes when determining their custody placement. While their decision or preference is not binding for the judge, it allows the child meaningful participation in decisions that directly affect them. There are many ways courts can ensure a child’s voice is heard: through an interview with the judge, professional evaluations, child advocates, and even child-inclusive mediation. Yet state laws give judges broad discretion when determining how to weigh the child’s wishes.

This discretion will inevitably leave some children behind without having their voices heard. Allowing children meaningful participation in their custody …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Re-Imagining Tomorrow: A Technology, Innovation Law, And Ethics Symposium On Addictive Technology And Children, Margaret Chon

Seattle University Law Review

In this Foreword, Professor Margaret Chon introduces Seattle University's Technology, Innovation Law, and Ethics (TILE) program, the 2024 TILE Symposium, and Dr. Gaia Bernstein’s Unwired: Gaining Control Over Addictive Technologies.

Keynote Address: The Movement To Protect Kids From Addictive Technologies, Gaia Bernstein

Seattle University Law Review

In this keynote address, I describe my personal journey starting with a school outreach program I created in 2017 to address technology overuse among kids. While I initially advocated for self-help methods, I grew to recognize that the tech industry bore responsibility. This realization led me to write Unwired: Gaining Control over Addictive Technologies, which focused on collective action to pressure the tech industry to redesign its addictive products.

I then describe the movement to control addictive technologies and protect kids, which has gained momentum since the end of the pandemic. This movement combines grassroots parent activism with legal-political action. …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Seattle University Law Review

Alcohol, automobiles, guns, lottery, loot boxes, meat, music, opioid painkillers, processed foods, prop bets, slot machines, television, tobacco, violent video games. Over the last century each of these has been subject to concerns—some might even say “moral panics”—from parents and policymakers about avoidable harms to kids and adults. In some cases we look back with the benefit of hindsight and dismiss those concerns as naïve or moralistic. In others we look back at them as justified or as having come too late to check an expanding industry before it did unfathomable harm while growing so powerful that it became all …

Responding To Digital Addiction, Ned Snow

Seattle University Law Review

In Unwired: Gaining Control over Addictive Technologies, Professor Gaia Bernstein calls our attention to the growing problem of digital addiction. Digital addiction may sound like something out of a science-fiction novel or something that does not raise the same sort of real-life practical concerns as are present in a physical health crisis or an economic decline. But as Bernstein presents the evidence, we learn that the consequences of digital addiction can be just as harmful as a serious disease or a financial depression. Cognitive development disorders, anxiety, emotional depression, social isolation, and other mental health ills can be debilitating—as much …

The Ai Doppelgänger Dilemma: Cloned Voices In The Music Industry, Elizabeth Shields

Seattle University Law Review

With the rise of generative artificial intelligence (AI), there has been an influx of “voice clones”—deep-learning algorithms that create synthetic speech to realistically mimic human voices. Celebrities and, in particular, music artists, have been subjected to the proliferation of AI voice clones on social media platforms like TikTok and streaming platforms such as Spotify. Despite music utilizing AI voice clones having amassed much popularity, this technology can be harmful and highly invasive to musicians whose livelihoods often depend on their distinct voices. While legal scholars have attempted to articulate various rights that could protect a person’s voice, individuals are largely …

Let The Sunshine In: Crafting Constitutional Transparency Regulations For Content Moderation, Caitlin Ring Carlson

Seattle University Law Review

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny. Specifically, …

This Is Not A Game: The Addictive Allure Of Digital Companions, Nizan Geslevich Packin, Karni Chagal-Feferkorn

Seattle University Law Review

Artificial Intelligence (AI) agents have become an inescapable part of modern childhood, reshaping education, leisure activities, entertainment, and social interaction. From AI-powered tutors that adapt to individual learning styles to emotionally responsive chatbots that simulate human companionship, these systems promise unprecedented personalization, cognitive stimulation, and social support. However, these benefits mask significant risks that remain unregulated and inadequately addressed.

Although adults are also susceptible to forming deep emotional bonds with AI companions—often trusting them as if they possessed genuine understanding and empathy—children are particularly vulnerable. Their misplaced trust can more severely distort social development, weaken critical thinking, and foster unhealthy …

The Market Value Of Partisan Balance, Brian D. Feinstein, Daniel J. Hemel

Northwestern University Law Review

For the past century, Delaware’s constitution has provided that no more than a bare majority of judges on the state’s courts may hail from the same political party. Some scholars and jurists theorize that Delaware’s commitment to a politically balanced judiciary increases the state’s attractiveness to out-of-state corporations and adds value to Delaware-chartered firms. These claims echo a larger literature in law and the social sciences positing that ideological diversity improves decisional quality. Recently, a series of federal court decisions in the case of Adams v. Carney put these claims to the test. In December 2017, a federal district court …

Statutes And Special Interests, Kirsten Matoy Carlson

Northwestern University Law Review

Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This Article takes an innovative new approach to tackling the difficult question of how advocates influence legislation. It presents the first comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The Article analyzes an original dataset of 2,137 witnesses and their testimony at referral hearings on 108 Indian-related bills in the 97th …

The Original Understanding Of The Western State Constitutions' Protections From Searches, Seizures, And Self-Incrimination, Greg Sergienko

UMKC Law Review

No abstract provided.

Uptier Debt Exchange Transactions: A Winner-Take-All Battle In The Leveraged Loan Market, Angela Chang

Brooklyn Law Review

This Note explores the legal implications of uptier debt exchange transactions (UDETs) in the syndicated loan market. These transactions are restructuring strategies that allow distressed companies to exchange existing debt for “superpriority” debt, often to the detriment of excluded creditors. The Bankruptcy Code aims to balance debtor relief with creditor rights, but, as this Note demonstrates, UDETs exploit ambiguities in credit agreements to shift priorities in favor of certain lenders. This Note examines the pivotal case of In re Serta Simmons Bedding, LLC, a decision which highlighted the need for creditors to reassess whether the flexibility of their credit agreements …

Delivery Drivers Deserve The Whole Package: Package Delivery Drivers And The Transportation Worker Exemption Of The Federal Arbitration Act, Evan Kelly

Catholic University Law Review

Package delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker …

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Interpreting Congress, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This Article introduces the concept of congressional interpretation. Congressional interpretation describes a strategy on which the Supreme Court relies, but rarely acknowledges. It occurs when courts try to understand what the law is by looking beyond a specific statute, or even a specific statute’s legislative history, and instead turning to vague beliefs about congressional behavior. Courts use congressional interpretation to: understand the relationship between a substantive statute and subsequent appropriations; evaluate statutes on the basis of post-enactment congressional inaction; and impose assumptions about congressional norms through clear statement rules. For instance, a court considers whether Congress granted statutory authority when …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Join The Military And Lose Your Kids: An Exploration Of The Adverse Effects Of Military Service In Child Custody Determinations, Cortland T. B. Boechler

Journal of Legislation

Servicemembers do not lose their fundamental rights when they join the military, but in practicality, many lose their parental rights the moment they enlist. Many servicemembers lose custody because judges often interpret service and duty relocations as incongruent to the best interest of the child. Presumably, many judges lack the understanding that military service brings familial stability. That being the case, Congress should add a provision in the Servicemembers Civil Relief Act requiring judges to consider all the benefits of military service in the "best interest of the child" analysis. This solution gives military parents a fighting chance to keep …

303 Creative, Exclusive Private Enforcement, And Blue-State Revenge, Howard M. Wasserman, Charles W. “Rocky” Rhodes

Journal of Legislation

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have …