Jurisprudence Commons^™

Commonsense And Convoluted: Revisiting Scott V. Harris And Its Effect On Summary Judgment, Zachary P. Novak

Catholic University Law Review

The traditional summary judgment standard across state and federal courts has long been that facts are viewed in the light most favorable to the nonmovant; this has developed as both a baseline measure to test whether the claims are even fit for a trial, but also as a measure of fairness – it is the movant who wants to dispose of the case before trial, so this standard gives the nonmovant a more level playing field. However, the Supreme Court decision of Scott v. Harris carved out a unique exception to this standard: when there is video evidence that so …

The Ex Parte Young Cause Of Action: A Riddle, Wrapped In A Mystery, Inside An Enigma, Andrew S. Oldham, Adam I. Steene, John W. Tienken

Northwestern University Law Review

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte …

The Hidden Power Of Citizenship: Political Identity In The Twilight Zone Of Equal Protection, Charles J. Anderson

Indiana Law Journal

More than half a century ago, in the landmark case of Graham v. Richardson, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits state-level blanket exclusions of noncitizens. That case ushered in a new rule: State classifications based on alienage are “inherently suspect” and subject to strict scrutiny. But Graham’s rule has a major exception. Just a few years after Graham was decided, the Court upheld several state laws excluding noncitizens from working as police officers, public school teachers, and probation officers. So was created what would later be termed “political function” doctrine. …

The Vanishing Enforcer: Consumer Protection In An Era Of Dual Retrenchment, Alisher Juzgenbayev

Northwestern University Law Review

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws …

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Navigating Compliance In A Geopolitical Era: The Case Of Chinese Multinationals In The United States, Ji Li

Seattle University Law Review

This Article examines how Chinese multinational companies (MNCs) approach compliance in the United States amid deepening geo-political rivalry and intensified regulatory scrutiny. Drawing on original survey data, this Article maps variations in compliance structures, staffing, and governance mechanisms across Chinese firms and identifies key determinants such as industry-specific regulatory intensity, listing status, and organizational imprinting from headquarters. The analysis employs a dual institutional framework to explain how compliance systems emerge from the interplay between host-state regulatory demands and home-state institutional legacies, producing hybrid structures that blend local adaptation with headquarters-driven replication. Findings reveal that while certain compliance features—such as committee …

The Field Of International Business Transactions Law, Kathleen Claussen

Seattle University Law Review

This Article studies the evolution of the scholarly subfield referred to as the law of “international business transactions” (IBT). It reviews data on academic articles, courses, textbooks and other signifiers of the growth of this research area. Beginning around 1960, scholars began to use the term “international business transactions” and by the 1980s, several law schools were offering a course by that title. A handful of dedicated textbooks soon followed. These data reflect a gradual increase in research on the topic of IBT, particularly in the United States, but also considerable diversity of subject matters covered by those works. The …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Table Of Contents

Seattle University Law Review

Table of Contents

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …

The Role Of The U.S. State Department As An Amicus In Foreign Policy Abstention Analysis, Sarah Kurpius

Northwestern University Law Review

Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.

This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the …

Reimagining Self-Regulation In Sexual Misconduct Complaints: Trust Through Transfer, Allyson M. Mcbride

Indiana Journal of Law and Social Equality

To increase trust in the judiciary’s ability to self-regulate, any formal complaints about a judge should not be handled by a colleague down the hall, but a judge from a different circuit. In this Comment, I propose automatic transfer out of circuit to improve the handling of sexual misconduct complaints specifically. I first describe the different ways judicial conduct is regulated in the federal system. I then discuss the problem of sexual misconduct in the judiciary. Finally, I outline why it is problematic for judges to adjudicate complaints about their intra-circuit colleagues and recommend that all complaints be automatically transferred …

Misinformation And The Jury, Gustavo Ribeiro

Indiana Law Journal

This Article bridges critical gaps between the growing body of social science research on misinformation and the persistent challenges jurors face in evaluating potentially unreliable evidence in courtrooms. Misinformation—a pervasive issue undermining decision-making in democratic societies—mirrors the difficulties jurors encounter in distinguishing truth from falsehood amid compelling but unreliable evidence. The consequences of such challenges are dire: wrongful convictions, racial disparities, and the erosion of public trust in the legal system.

This Article is the first piece of legal scholarship to provide a comprehensive discussion of current research on the psychological mechanisms underlying susceptibility to misinformation—such as the illusory truth …

A Zealous Advocate, A Robust Cross: Cross-Examination Of Non-Adverse Witnesses By The Guardian Ad Litem, Scott Swain

BYU Law Review

“When the lives and fundamental rights of children are at stake, there must be no silent witnesses.”1 — Carol Bellamy

Systemic pressures in child welfare litigation regularly lead guardian ad litem attorneys to default to the positions and recommendations of state social services. In such cases, witnesses called by the state in trials and evidentiary hearings are non-adverse to the guardian ad litem. This dynamic undermines the purposes of cross-examination rules, threatening the procedural interests of the parties involved. This paper will use a procedural due process balancing test to guide its analysis as it proposes three potential solutions: a …

Rethinking Judicial Power & Remedial Restraint, Caprice L. Roberts

Catholic University Law Review

This Article maintains that groundbreaking Supreme Court cases reshaping judicial power and restraint are frequently remedies centric. The much- anticipated ruling in Trump v. CASA illustrates this correlation. Interpreting traditional equity, the Supreme Court circumscribed federal judicial power to issue universal relief. The Court relied on Marbury v. Madison to bolster its reasoning on the limits of judicial power. Ironically, both cases denied any remedy while enhancing the potential for future judicial power. Whether via judicial review and supremacy power or the Court’s future ability to now be the only federal court able to issue universal remedies—the Court’s role in …

Fifth Circuit And Mississippi Law: Asked And Answered (Or Not), Caroline B. Smith, Emily K. Lindsay, Jim Rosenblatt

MC Law Review

No abstract provided.

Federal Courts, Class Actions, And The Jurisdictional Void, Courtney T. Welch

Fordham Law Review

To invoke the jurisdiction of a federal court, a plaintiff must satisfy the requirements of Article III. Among other things, Article III requires a plaintiff to have and maintain personal stake throughout the lifespan of the litigation. Though a simple premise, this constitutional requirement has a complicated history. This is especially true as applied to class action lawsuits, where plaintiffs bring claims both on behalf of themselves and other harmed individuals.

The U.S. Supreme Court has applied flexible rules to some—but not all—of Article III’s requirements in class actions. The breadth of this flexibility, though, is uncertain. Accordingly, so too …

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

Causation’S Due Process Dimensions, Cassandra Burke Robertson, Charles W. “Rocky” Rhodes

Texas A&M Law Review

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent Fourteenth Amendment due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has …

Defining “Cases” Or “Controversies”: A Fundamental Confusion In Article Iii Standing Doctrine And Its Consequences In Multi-Plaintiff Litigation, Dominic Signa

Fordham Law Review

The United States Supreme Court has addressed the absolute core requirements of standing under Article III of the U.S. Constitution on several occasions. However, the Court has not clearly articulated what purpose standing serves relative to Article III’s limitations on the exercise of judicial power to only “cases” or “controversies,” and this has led to major downstream effects in the realm of multi plaintiff litigation. Specifically, the Court has not explained whether standing is meant to ensure (1) that all potential plaintiffs demonstrate that they are properly parties to the same case or controversy before a federal court or (2) …

Chimeric Contacts And Consent: The Ill-Reasoned Expansion Of Corporate Jurisdictional Exposure, James Paul George

Faculty Scholarship

Two recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case-Ford Motor Company v. Montana-reached a fair result but with strained reasoning that will support unfair results. The second case-Mallory v. Norfolk Southern Railroad Company-was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff's limited territorial model. Both decisions were the result of conceptual corners the Supreme Court has created …

Living Property, Joseph William Singer

Seattle University Law Review

The Supreme Court has increasingly defined property rights that are per se exempt from regulation in the absence of compensation, most recently in Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023). The Court claims that it can identify property rights that are categorically protected from regulation by reference to history, tradition, and precedent. Yet this approach is oddly ahistorical; it is inconsistent with the fact that property law changed dramatically over U.S. history, as well as varying tremendously among the states. It is also inconsistent with the historical context of the Founding era. At that time, …

Table Of Contents

Seattle University Law Review

Table of Contents