Jurisdiction Commons^™

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

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 …

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

Front Matter, National Law School Of India Review

National Law School of India Review

Front Matter (Title Page, Publisher Information, Masthead, Table of Contents).

Introduction: Twail And The International Law Of Jurisdiction, Rohini Sen

National Law School of India Review

Introduction: TWAIL and the International Law of Jurisdiction.

Universal Civil Jurisdiction And International Law: A Response To B.S. Chimni, Chimène Keitner

National Law School of India Review

The exercise of various forms of jurisdiction, and the delineation of a political entity’s jurisdictional reach over persons, places, and conduct, can sharpen and entrench inequities within and between states. One can thus aptly characterize certain exercises of jurisdiction, and particularly certain forms of extraterritorial jurisdiction, as assertions of imperial and/or hegemonic power. Importantly, however, jurisdiction can also be invoked to redress certain power inequities by providing access to judicial remedies for conduct that has evaded other forms of regulatory control. In addition, while certain assertions of extraterritorial prescriptive jurisdiction can represent overreaching by powerful states, the practice of disclaiming …

Editorial Note, Kopal Mittal

National Law School of India Review

Editorial Note.

Theorising Extraterritorial Jurisdiction: The Travails Of Twail, Muthucumaraswamy Sornarajah

National Law School of India Review

Discussion of extraterritoriality focussing on capitulation theories looks backwards at an historical period. The present need is to study extraterritoriality used by hegemonic states both in an oppressive manner to advance their national interests and in a manner that protects common interests. As hegemonic power of the United States recedes, new actors like China and India will come to use extraterritoriality largely in an offensive manner. Preoccupation with the past is inapposite in a field in which the rapid developments are taking place. A theory must be found that permits defensive extraterritoriality that promotes community interests while curbing the offensive …

A New Research Programme For International Relations And International Law: Jurisdiction, Capitalism, And Imperialist Infrastructures, Maïa Pal

National Law School of India Review

This article argues that Chimni’s proposed framework for historically and theoretically reconceptualising jurisdiction in ‘The international law of jurisdiction: A TWAIL perspective’ has important implications for a much-needed renewed encounter between the disciplines of International Law and International Relations. It begins by summarising the contribution of Chimni’s article in terms of its two historical and theoretical contributions. It then focuses on the theoretical reconceptualization of jurisdiction as structurally interdependent with capitalism and sovereignty, rather than territory and sovereignty as found in mainstream and liberal approaches. Moreover, Chimni’s article fills gaps in critical approaches by thinking of jurisdiction in more material …

Extra-Territoriality And Solidarity, Vasuki Nesiah

National Law School of India Review

Bhupinder Chimni calls for a subaltern internationalism that stands in contrast to and challenges extraterritorial jurisdiction by imperial and capitalist forces. We have a productive instantiation of subaltern internationalism in the jurisprudence on jus standi at the International Court of Justice.1 A sovereign that is not the injured party may still legitimately represent injured peoples if the representation is grounded in a commitment to those peoples’ self- determination; the court’s admissibility jurisprudence has come to recognize this commitment as a legitimate erga omnes partes claim. Its most recent and spectacular expression was South Africa’s representation of Palestinians with a genocide …

The Space Between Jurisdiction And Sovereignty, Asha Kaushal

National Law School of India Review

This Comment examines the relationship between jurisdiction and sovereignty in the context of Chimni’s principle of subaltern internationalism. When viewed from the perspective of decolonisation and self-determination, jurisdiction pulls against Third World spaces for governance. Instead, it deploys jurisdiction as a limiting legal instrument. I suggest that mainstream international law has relied upon—exploited, even—the space between jurisdiction and sovereignty to withhold the full realisation of self-determination from developing states. Drawing on the case study of East Timor, the Comment examines the many faces of jurisdiction on the plane of mainstream international law.

Colonies And International Labour Organization: A Subaltern Outlook, Aathira Raju

National Law School of India Review

This paper put forward a subaltern perspective to outline the conditions of colonial labour during the interwar era. It is argued that despite the efforts of postcolonial international legal scholars to make the subaltern class visible, the latter’s voice remained scanty. One of the reasons is the paradox of international law. As noted by Chimni, “It is an instrument of subjugation and of liberation, of exploitation and possible emancipation”. This dichotomy can be witnessed in the transactions of international institutions, notably the International Labour Organization (‘ILO’). On the one hand, the ILO was regarded as the pacesetter for labour interests; …

Rapporteur Report, Shwetha Ramachandran, Laavanya Tewari, Chayan B.P., Manvi Sahni

National Law School of India Review

XVI NLSIR Symposium: TWAIL Approaches to Jurisdiction [Volume 35(2)].

Charting Extraterritoriality: Jurisdiction, Corporate Conduct, And Environmental Harm, Kalika Mehta

National Law School of India Review

Chimni’s TWAIL critique of the principle of jurisdiction, the subject of this symposium, implicates its development with the evolution of capitalism. Against this backdrop, this paper uniquely focuses on international criminal law and the selective application of principle of extraterritorial jurisdiction, particularly its exclusion of corporate entities from prosecution for large-scale violence. Through an analysis that engages with Chimni’s critique, the paper illustrates how these extraterritorial prosecutions align with the mainstream liberal theory of jurisdiction, while also exposing gaps in corporate accountability. Further, the paper contributes to ongoing legal reform debates by exploring the proposed international crime of ecocide, a …

Human Rights And Jurisdictional Trajectories: Shedding Light On The Colonial Genealogy, Rongeet Poddar

National Law School of India Review

International law’s tryst with colonialism has continued to have a significant bearing on the shifting sands of jurisdiction in relation to human rights enforcement. Even as the apparition of empire loomed large over Third World states, a ‘universal’ yet non- binding catalogue of human rights had become reality with the birth of the UDHR. As recognized in Article 2 of the document, peoples of non-self-governing territories could also not be deprived of their human rights. However, hopes were belied when the ECHR, as the first binding post-War human rights instrument, was accompanied by a restrictive jurisdiction clause. The original Article …

Territoriality Of Satellites In The Leo: ‘Jurisdiction Without Territory’ Beyond Earthly Frontiers, Priyansh Dixit

National Law School of India Review

Successes in outer space are often seen as belonging to humankind. But what exactly does humankind mean? In line with TWAIL, I cannot agree that it refers to the collective distribution of benefits to all states or individuals. Rather, these successes and the benefits that flow from them are disproportionately allocated to the first world. This is even though the advantage of the first world is a direct consequence of centuries of colonialism and exploitation. In this backdrop, I argue that the exercise of jurisdiction in the Low Earth Orbit (‘LEO’) creates a kind of territoriality that is used to …

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 …