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Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

A Cost To Bear—Environmental Contamination And Eminent Domain, Evan C. Heaney

Seattle University Law Review

This Note advocates for Washington courts to adopt a system that universally allows evidence of environmental contamination on the private property taken in eminent domain proceedings. Part I of this Note discusses the history and progression of eminent domain and the broader constitutional roots of the Takings Clause. Part II explores Washington’s environmental remediation statute. Part III details the various approaches jurisdictions around the county have formulated to deal with this issue. Part IV argues Washington courts should adopt the inclusionary approach, which allows the introduction of environmental evidence in eminent domain proceedings.

Madison 2.0—Applying The Constitution’S Taxing And Spending Clause To Revitalize American Federalism, Mohamed Akram Faizer

Seattle University Law Review

This article introduces the proposal entitled Madison 2.0 which calls for an enlightened federal government to enact legislation—using its broad ability to tax and spend for the general welfare—to revitalize, as opposed to undermine, American federalism. Part I discusses American Federalism today and the need for an updated approach. Part II explores the government's dysfunctional response to the Covid-19 pandemic. Part III proposes how to revitalize American federalism through the Spending Clause. Part IV discusses how to claw back funds in situations of state recalcitrance and replacing funds with a basic income. Lastly, this article concludes by explaining why the …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev

Journal of Law and Policy

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …

Article Iii And The Political Question Doctrine, Scott Dodson

Northwestern University Law Review

Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such …

An Open Governor’S Seat, Open Constitutional Question, And The Need For An Answer, Samuel Steele Mclelland, James R. Baxter

Arkansas Law Notes

Another election cycle always means a renewal of fresh lawsuits and legal questions, and 2022 is no exception. the announcement of Sarah Huckabee Sanders’s run for Governor of Arkansas reignites an interesting aspect of Arkansas’s Constitution: must a candidate for Governor live in the State of Arkansas for seven consecutive years, immediately preceding taking office? A final ruling by the Arkansas Supreme Court will give clarity and stability going forward for the most important elected position in the state.

Legalizing Undocumented Work, Jennifer J. Lee

Cardozo Law Review

No abstract provided.

A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton

Journal of Law and Policy

Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston

LLM Theses

This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …

Determining The Constitutionality Of Public Aid To Parochial Schools After Espinoza, Anna Bryner

Sigma: Journal of Political and International Studies

No abstract provided.

Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick

Pepperdine Law Review

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …

“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein

Pepperdine Law Review

On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented in Mazars concerned whether Congress had a legitimate legislative purpose in subpoenaing the President’s personal records, the Supreme Court’s decision is anything but a model of clarity. The Court simultaneously opined that disputes “involving nonprivileged, private information” “do[ ] not implicate sensitive Executive Branch deliberations” while claiming “congressional subpoenas for the President’s information unavoidably pit …

Egyptian Public Law Judge: Reviewing Public Economic Policies From Nationalization To Privatization, Omar El Menshawy

Theses and Dissertations

Do public law judges play a role in public economic policies in Egypt? Egypt has witnessed rough changes, leading to the adoption of different public economic policies. Public law judges have played a key role in these economic shifts. However, the efficacy of this role is pending on the satisfaction or dissatisfaction of the government with the courts and the judicial decisions. This paper argues that the government posses the upper hand in dealing with the judicial influence in economic issues in Egypt. The paper scrutinizes the transformation in the judicial attitude towards government economic policies. Specifically, the paper demarcates …

Defending "Universal Vacatur" - Nationwide Injunctions For Administrative Law, Michael E. Herz

Online Publications

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that …

Statutory Jurisdiction And Constitutional Orthodoxy In Mcculloch, Cohens, And Osborn, Kevin C. Walsh

Scholarly Articles

This essay examines the underappreciated element of statutory jurisdiction in McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United States. One objective is to identify more precisely the Marshall Court’s jurisdictional innovations in these three foundational decisions. A close look at the question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn reveals a kind of constitutional magnetism at work. In constitutional avoidance, a court adopts an interpretation in order to stay away from a constitutional problem. In contrast, the Marshall Court in Cohens and Osborn expanded the jurisdictional statutes at issue in order …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Introductory Remarks, Michael Rogers, Hannah Hamley, Rayshaun D. Williams

Seattle University Law Review

Introductory Remarks.

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Foreword, Seattle University Law Review

Seattle University Law Review

Foreword.

The Deans' Roundtable, Dean Angela Onwuachi-Willig, Dean Danielle Conway, Dean Tamara Lawson, Dean Mario Barnes, Dean L. Song Richardson

Seattle University Law Review

The Deans' Roundtable.

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

Dickinson Law Review (2017-Present)

Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a onedimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Avoiding Flights Of Fancy: Determining Venue For Crimes Committed During Commercial Flights, Allyson Shumaker

Oklahoma Law Review

No abstract provided.

Should Justices Be Historians? Justice Scalia’S Opinion In District Of Columbia V. Heller, Todd B. Adams

University of San Francisco Law Review

No abstract provided.

Wrongful Extradition: Reforming The Committal Phase Of Canada’S Extradition Law, Robert Currie

Articles, Book Chapters, & Popular Press

There has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …