Judges Commons^™

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Meaningful Life: The Future Of Juvenile Justice In Washington After Anderson, Samuel Coren

Seattle University Law Review

Until 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

Court Review: Journal Of The American Judges Association, Vol. 60, No. 2, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Anniversary Year Brings a Look at Our Past, Court Review Editors

Judicial Independence, John Owens

Remarks on Judicial Independence by Ruth Bader Ginsburg (Anniversary Reprint), John Owens

So You’re Going to Be a Judge, Cynthia Gray

Religion’s Role in Judicial Decision-Making: an Update (Anniversary Reprint), Tiffany M. Williams, Alaina L. Warrior, Logan A. Yelderman, Monica K. Miller, and Brian H. Bornstein

Does A Judge’s Religion Influence Decision Making? Brian H. Bornstein and Monica K. Miller

How to Make Better Decisions, John F. Edwards

Editor’s Note, David Prince

President’s Column, Catherine Carlson

The Law of Sniffer-Dog Searches in Canada [Thoughts from …

Court Review: Journal Of The American Judges Association, Vol. 60, No. 4, Eve M. Brank, David J. Dreyer, David Prince

Court Review: Journal of the American Judges Association

Wrapping Up Our Anniversary Series and Seeking the Courage to Learn, David Prince

What Do the Findings from NCSC’s Six Public Opinion Surveys Mean for Judges? David B. Rottman

Observations from NCSC’s State of the State Courts Public Opinion Surveys, Jesse Rutledge

Fiction with Potential Repercussions: An Update on the CSI Effect, Melissa Corbett and Veronica Stinson

Fact or Fiction? The Myth and Reality of the CSI Effect, Stephen M. Smith, Veronica Stinson, and Marc W. Patry

A Fractured Supreme Court: Select Criminal Law and Procedure Cases from the Supreme Court’s 2023-24 Term, Eve Brensike Primus and Jordan Schuler

Editor’s …

Court Review: Journal Of The American Judges Association, Vol. 60, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Anniversary Year Brings a Look at Our Past, Court Review Editors

The Case of Standing Bear: 15 Years After Court Review Publication, Joe Starita

The Case of Standing Bear: Establishing Personhood under the Law, Joe Starita

Perceptions and Experiences with Judicial Security Threats: A Survey of U.S. State Court Judges, Christine M. McDermott, Evan Murphy, Patrick Grimes and John Muffler

Civil Cases in the Supreme Court’s October Term 2023, Thomas M. Fisher

Editor’s Note, David J. Dreyer

President’s Column, Catherine Carlson

His Majesty the King v. Kruk: Stereotypical Reasoning and the Death in Canada of the “Rule Against Ungrounded …

Court Review: Journal Of The American Judges Association, Vol. 60, No. 1, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Anniversary Year Brings a Look at Our Past Court Review by the Editors

The Advent of Procedural Fairness: Introduction to The American Judges Association 65th Anniversary Dedication Reprint by David Dreyer

American Judges Association 65th Anniversary Dedication Reprint: Procedural Fairness: A Key Ingredient in Public Satisfaction by Kevin Burke and Steve Leben

Authors Q&A by David Dreyer interviewing Kevin Burke and Steve Leben

What’s In a Name?: Reinventing “Special Masters” as “Court- Appointed Neutrals” by Merril Hirsch

Editor’s Note by David Dreyer

President’s Column by Catherine Carlson

Thoughts from Canada: The Continued Demise, but not Death of Mandatory Minimum Sentencing …

Spring-Cleaning The American Legal Pantheon? Reputations Rivalled: Justices Harlan The First And Holmes & Justices Frankfurter And Harland The Second, Gerard Hogan

Loyola University Chicago Law Journal

In the general common law world, few things are more contestable than what constitutes judicial greatness. Is it the capacity to anticipate developments in the law or to champion new ideas that, in time, will become accepted? Or is it the elegance of judicial style? Or is it a combination of some or all of these things? These are the subjects of endless jurisprudential debates. Yet no matter where you stand in this debate, one thing is clear: the U.S. Supreme Court has been fortunate in having had among its ranks some of the greatest judges which the common law …

Why Do Judges Compete For Cases?, Jonas Anderson, Paul R. Gugliuzza

Utah Law Faculty Scholarship

It’s not just parties to litigation who forum shop. Sometimes judges forum sell by trying to attract cases to their courts. This judicial competition for cases has been documented in areas ranging from bankruptcy to antitrust to, most infamously, patent law. Despite the ubiquity of judicial case-seeking behavior, one important question remains unanswered: why? Why do judges—particularly federal district judges, who enjoy life tenure and are paid fixed salaries—seek out more work, especially in cases that can be quite complex?

This article answers that question by developing a first-of-its-kind model of judicial behavior in the context of court competition. The …

Can Litigation Analytics Tell Us What Became Of The 2015 Proportionality Amendments To The Federal Rules Of Civil Procedure?, Patricia W. Moore

Faculty Articles

In 2015, the Federal Rules of Civil Procedure pertaining to discovery were amended for the seventh time in 40 years–part of a cyclic effort to address the so-called “cost and delay” of litigation. The centerpiece of the amendments was the reconfigured requirement that requested discovery be “proportional to the needs of the case,” in addition to being relevant and nonprivileged. The concept of “proportionality” crystallized the 2015 amendments in a single mantra. The proposed amendments inspired passionate and polarized public reactions. Plaintiffs’ attorneys opposed them as an impediment to obtaining the discovery they needed to prove their case, particularly in …

Choosing Your Judge, Alexander Gouzoules

Faculty Publications

Accounts of American litigation pose a contradiction: Forum shopping is acceptable, but judge shopping is not. Formal disfavor toward judge shopping is pervasive, and attempts by parties to manipulate the assignment of their case are deemed abusive and even sanctionable. Nevertheless, sophisticated judge-shopping tactics have proliferated in specific areas of the law—particularly in challenges to executive branch policies and in the reorganization of large companies under Chapter 11. In these disparate areas, judge-shopping strategies have been deployed in high-profile cases, ranging from a challenge to the FDA’s authorization of an abortion drug to the opioid-driven bankruptcy of Purdue Pharma. In …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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 …

An Unconstitutional Band-Aid: The Practice Of Sitting By Designation In The Federal Judiciary, Michaela Conley

Roger Williams University Law Review

No abstract provided.

Petition For Writ Of Certiorari - Roberson V. State Of Mississippi, Frank Rosenblatt

Journal Articles

No abstract provided.

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

Eliding Consent In The Case Of Pandemic Countermeasures Authorized Only For Emergency Use, Lars Noah

UF Law Faculty Publications

Four months after the first vaccines against Covid-19 became available to the public, and just as some universities announced plans to require inoculations, the Boston Globe quoted me as (alone) suggesting that mandates would conflict with federal law. When Congress created a special mechanism for the emergency use of still investigational products, it directed providers to reveal, among other things, that individuals remained free to decline such an intervention; only after full FDA approval of a medical countermeasure would this disclosure obligation become inapplicable. I have watched with dismay over the last three years as nearly everyone—including Executive branch officials, …

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

Judges Compete Because They Are Human, Merritt E. Mcalister

UF Law Faculty Publications

Judges are human, and they compete for cases because they are susceptible to the same kinds of very human incentives as the rest of us. But what is unusual about federal judges is their workplace: they have a glorious dead-end job that's missing traditional carrots and sticks. This dynamic produces some strange results, including forum selling, where judges seek more work for the same pay. In conversation with Why Do Judges Compete for Cases?, this Response suggests that forum selling (and its attendant risks and harms) is inevitable, because judges, like the rest of us, will act out of …

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 …