Judges Commons^™

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. …

After Affirmative Action, Meera E. Deo

Seattle University Law Review

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Due Process Shaped By The Present Instead Of The Past: The Needed Reinvigoration Of A Lawrence Vision Of Due Process, Azor Cole

Seattle University Law Review

The recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation’s history and tradition. The other is to ask whether the right to be found is fundamental to this Nation’s scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is …

Sneakers, The Shoes That Talk The Talk And Walk The Walk: How Jack Daniel’S Properties, Inc. V. Vip Products Left Its Footprint On Trademark Law And The Sneaker Industry, Nitya Tolani

Seattle University Law Review

As the fashion industry—including the sneaker industry housed within it—continues to go through the motions of collectively flocking out, and then collectively flocking again to the newest innovations in the world of wearables, the landscape of laws to protect and promote those innovations expands as well, mainly in the area of intellectual property law. Although copyright, trademark, and patent law can cover innovations in the fashion industry, this Note centers its analysis on trademark law. Trademark law has been through notable change in recent years because of the United States Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. …

Prejudice Standards In Washington’S Appellate Courts, Andrew B. Van Winkle

Seattle University Law Review

When an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Current State Of Abortion Law In Virginia Leaves Victims Of Domestic And Sexual Violence Vulnerable To Abuse: Why Virginia Should Codify The Right To Abortion In The State Constitution†, Courtenay Schwartz

University of Richmond Law Review

All people must have access to safe and legal reproductive health care—especially victims of sexual and domestic violence who can and do become pregnant because of the violence they experience. This year, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey in Dobbs v. Jackson Women’s Health Organization. In doing so, the Supreme Court held that the Constitution does not protect the right to an abortion. Though abortion access is currently protected in Virginia, this could change with each new General Assembly session. To guard against the danger that this poses to …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

Judicial Selection That Fails The Separation Of Powers, Stephen Ware

Catholic University Law Review

Executive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are …

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Confirm Julie Rikelman For The First Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Confirm Rachel Bloomekatz To The Sixth Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate is convening after the July Fourth holiday, the upper chamber must promptly appoint Rachel Bloomekatz to the U.S. Court of Appeals for the Sixth Circuit. The nominee, whom President Joe Biden selected in May 2022, provides remarkable experiential, gender, and ideological expertise that she deftly realized in litigating high-profile gun control, environmental, and other significant cases in federal appellate courts and district courts. Over fifteen years, the nominee has reached law’s pantheon across a broad spectrum from extremely prestigious clerkships with Justice Stephen Breyer and particularly distinguished federal court and state court jurists to …

Change We Can Believe In: The Seventh Circuit's Exposure Of Inadequate Environmental Review In Protect Our Parks V. Buttigieg, P. Nicholas Greco

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Partisan Gerrymandering: The Promise And Limits Of State Court Judicial Review, Norman R. Williams

Marquette Law Review

In 2021, the Oregon Legislature succeeded in redrawing the state’s legislative and congressional districts, but the new redistricting plans were immediately challenged in state court as partisan gerrymanders. The Oregon Supreme Court rejected the challenge to the state legislative map, but its analysis, which accorded significant deference to the legislature’s choices, raised more questions than answers about the appropriate level of scrutiny for state redistricting plans. A special, five-judge court likewise rejected the gerrymandering challenge to the congressional map, and, while its analysis was less deferential, its decision also left unanswered the fundamental question regarding at what point a redistricting …

Acting Cabinet Secretaries And The Twenty-Fifth Amendment, James A. Heilpern

University of Richmond Law Review

The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries—Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin—tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the …

Going The Extra Mile: Expanding The Promoting Affordable Housing Near Transit Act, Emily R. Casey

University of Richmond Law Review

The Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Helm's School of Government Conference - 2021-2024

Although only four departments at the United States’ founding, the American bureaucracy has expanded to address nearly every issue of public life. While these agencies are ostensibly under congressional oversight through monetary allowance and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founders’ design of legislative power vested solely in a bicameral legislature.

The Supreme Court holds an indispensable role in mitigating the overreach of bureaucratic agencies. However, despite their obligation to protect the rights of the American people, the courts’ inability to hold bureaucrats accountable has diluted …