Election Law Commons^™

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 …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

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 …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

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

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

The Burden To Reach The Ballots: Tackling Eleventh Circuit Line-Warming Bans And Their Intersectional Harm Under An Ada Framework, Alyssa Clune

Fordham Law Voting Rights and Democracy Forum

Line-warming bans present an additional hurdle for voters across America, especially in an era of historically few polling locations and historically long lines to reach the ballot. Particularly in Eleventh Circuit states like Georgia and Florida, line-warming bans, in conjunction with long wait times, have had a disparate impact on Black communities and their ability to cast ballots in key swing districts. Nevertheless, attempts to bring racial discrimination claims against these bans have not been successful in the Eleventh Circuit. This Essay proposes a new strategy to tackle line-warming bans under an ADA framework. It analyzes the harm that these …

Section 1983 And Voting Rights: A Case Study On The Materiality Provision And The Future Of Private Enforcement, Paul Feingold

Fordham Law Review

A recent ruling by the U.S. Court of Appeals for the Eighth Circuit stating that § 2 of the Voting Rights Act of 1965 is not enforceable by private litigants under an implied private right of action has many voting rights advocates rightfully concerned about the future of federal voting rights protections. Indeed, that ruling appears partly motivated by signals from the U.S. Supreme Court. However, not all hope is lost. In Health and Hospital Corp. of Marion County v. Talevski, the Supreme Court recently reaffirmed its Gonzaga University v. Doe test for enforcing a statute under § 1983. …

Protecting Minority Representation In An Era Of Political Polarization And The Hollowing Out Of Voting Rights Protections, Henry L. Chambers Jr.

Washington and Lee Law Review

The United States Supreme Court has hollowed out various voting rights protections, leaving all voters—minority and nonminority—less protected in a politically polarized America. Surprisingly, the Court has continued to protect representation for minority race voters who live in racially polarized areas. However, minority race voters risk losing that protection, typically provided through majority-minority districts authorized under the Voting Rights Act, if they build cross-racial coalitions with their neighbors. Under the Court’s interpretation of the VRA, cross-racial voting coalitions may be less protected than local majorities comprised of a single race of voters. The loss of such protection could leave their …

The Use Of Procedural Rules To Silence Minority Party Dissent In The Tennessee State Legislature And Its Racially Discriminatory Roots, Rosie Fatt

Journal of Law and Policy

The expulsion of two young Black legislators, Justin Jones and Justin J. Pearson, from the Tennessee General Assembly in April 2023 was not an aberration. This Note argues that the expulsions follow a historical pattern of systematic marginalization of Black representative power in the South. This Note connects the history of minority exclusion in state legislatures, beginning with Black legislators barred from taking their elected seats in the Georgia House, through to the present day. Specifically, it focuses on the use of procedural rules, particularly expulsions, as tools to limit the speech and representative power of Black legislators. It discusses …

The California Supreme Court Replaces Gingles Prong One, Bruce A. Wessel, Jason D. D'Andrea

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Spies, Trolls, And Bots: Combating Foreign Election Interference In The Marketplace Of Ideas, Nahal Kazemi

Fordham Law Voting Rights and Democracy Forum

Foreign disinformation operations on social media pose a significant and rapidly evolving risk, particularly when aimed at American elections. We must urgently and effectively address this form of election interference. This Article examines potential responses to those risks, through a review of the unique characteristics, both practical and legal, of political advertising on social media platforms. This Article analyzes proposed legislative responses to foreign disinformation, noting that no single proposed law to date adequately addresses the threats and challenges posed by foreign disinformation. This Article considers the election law landscape in which the proposed laws would operate. It evaluates the …

Fraudulent Vote Dilution, Jason Marisam

Fordham Law Voting Rights and Democracy Forum

In recent years, the Republican Party and conservative groups have brought lawsuits that advance a novel type of voting claim, which this Article calls fraudulent vote dilution. This claim asserts that an election rule is unconstitutional because it makes it too easy to cast fraudulent ballots that, when tabulated, will dilute the strength of valid and honest ballots. With the 2024 election nearing, the Republican Party may again test fraudulent vote dilution claims in court, as it seeks injunctions to make liberal election rules stricter in ways that make it harder for Democratic voters to cast ballots. This Article advances …

“When Did African Americans Get The Right To Vote In Georgia?”, Marc T. Treadwell

Mercer Law Review

Most know that the post‑Civil War Fifteenth Amendment guaranteed citizens of all races, or at least male citizens of all races, the right to vote. But notwithstanding the keen interest today in voting rights and alleged voter suppression and that well-known Fifteenth Amendment, few know that for decades African Americans were banned outright from voting in primary elections that determined state and local leaders in many Southern states. In the post‑Reconstruction South, the Democratic Party controlled every facet of state politics and government. The Party’s whites‑only primary elections ineluctably determined the outcome of general elections. The party did not allow …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents