Judges Commons^™

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 …

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 …

Constraining The Executive Branch: Delegation, Agency Independence, And Congressional Design Of Judicial Review, Jennifer L. Selin, Pamela J. Clouser Mccann

Northwestern University Law Review

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.

This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

Missouri's Law Of Constitutional Interpretation, Michael L. Smith

UMKC Law Review

No abstract provided.

Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James Paul George

Faculty Scholarship

Custom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some …

The Forgotten Fundamental Right To Free Movement, Noah Smith-Drelich

Northwestern University Law Review

There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though infrequently applied—fundamental right to interstate travel. The true scope of the Constitution’s protection of movement through substantive due process safeguards local, interstate, and international travel. Though overlooked today, the fundamental right to free movement has deep roots in history and tradition, and in the decisions of numerous state and federal courts, including the Supreme Court.

This Article is the first to examine freedom of movement using the history and tradition test for unenumerated fundamental rights. This Article …

Peeping Town: Drone Surveillance And The Exclusionary Rule In Long Lake Township V. Maxon, Stuart Massa

Northwestern University Law Review

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan …

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 …

The Inconvenience Doctrine, Alexi Pfeffer-Gillett

Scholarly Articles

In a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries.

This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with …

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 …

Court Review: Journal Of The American Judges Association, Vol. 61, No. 1, Eve M. Brank, David J. Dreyer, Reba Page

Court Review: Journal of the American Judges Association

Contents

We Need Cvility Now More Than Ever, Benes Z. Aldana

Bias of Work-Related Psychological Claims, Melissa Lin Jones

An AI Primer for Judges, Joseph Regalia

Editor’s Note

President’s Column, Vincent L. Johnson

Thoughts from Canada: The Supreme Court of Canada Considers the Application of the Common Law “Exigent Circumstances” Doctrine to the Warrantless Searches of Electronic Devices, Wayne K. Gorman

Crossword: Four 38-acrosses, Victor Fleming

Court Review Author Submission Guidelines

The Resource Page

What Judges Can Do about Implicit Bias: Evidence-based Recommendations and Practices, Jerry Kang

Military Service Academies: The Final Battleground For Affirmative Action, Krista Trefen

American University Law Review

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding, reserving space for race-conscious practices tied to national security-the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military …

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 …

Defining The Field Of Judicial Administration, Marin K. Levy

Faculty Scholarship

This Keynote address, as part of a symposium on "Theorizing the Judicial Process," aims to make a case for the field of judicial administration and to define the field more generally. Specifically, it seeks to raise the organizing questions of the field and to note the kind of work--descriptive, empirical, and theoretical--that is needed to answer them. The hope is to map out a collective research agenda for courts scholars to pursue into the future for the benefit of the academy and judiciary, both.

War Courts: Fdr, National Security, And The War On Terrorism, Harvey Gee

Dickinson Law Review (2017-Present)

No abstract provided.

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Structuring The President’S Removal Power: An Agency-Specific Approach, Peter Margulies

American University Law Review

Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the President’s Article II obligation to “take Care that the Laws be faithfully executed” generally requires that the President have authority to remove officials at will. The Court has thus far declined to overrule Humphrey’s Executor v. United States, a 1935 decision upholding “forcause” restrictions on removal for multi-member “quasi-judicial” bodies such as the Federal Trade Commission (FTC). Nonetheless, recent Court decisions have eroded the rationale in the earlier case, which has received additional attention because of efforts …