Jurisprudence Commons^™

The Catholic Modernity Of Pope Benedict Xvi: Healthy Secularity And Christian Jurisprudence, Zachary R. Calo

Scholarly Works

This article examines the concept of healthy secularity in the thought of Pope Benedict XVI. In developing the idea of healthy secularity, Benedict builds upon longstanding themes in Catholic social thought while also provoking a deeper engagement with western modernity. Rather than placing Christianity and the secular in an oppositional framework, Benedict positions Christianity as the foundation of an authentic secular order. In so doing, he opens up new modes of critical engagement with western legal and political thought. Yet, while the concept offers a creative theological method for addressing contemporary issues, it depends for its realisation on vanishing cultural …

Economic And Social Rights, Corruption, And Covid-19: The Indian And South African Experiences, Anashri Pillay

National Law School of India Review

India and South Africa have been at the forefront of debates about economic and social rights for many decades. Whilst the apex courts in these states have led the way in interpreting and handing down remedies stemming from these rights, vast social and economic inequalities persist. This article uses the responses to Covid-19 as a basis to consider how corruption has affected the realisation of economic and social rights in each of these countries. The article goes on to address broader arguments about the value of international human rights in tackling corruption. A human rights perspective is a relatively recent …

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 …

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. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

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 …

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 …

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 …

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Filling The Red State Federal Judicial Vacancies, Carl Tobias

Law Faculty Publications

District vacancies without nominees that plague red jurisdictions deserve emphasis in this Essay for several reasons. First, there are myriad district court jurists who trigger greater numbers of empty posts when they assume senior status, retire, or die, which triggers more issues. Legislators have created 677 active trial court positions, which dwarf the 179 active court of appeals judicial posts. The trial courts are tribunals of last resort for most cases; their numerous jurists are the only court members that many litigants encounter, and significantly more district court openings lack nominees. In contrast, appellate courts explicitly articulate considerable policy, include …

Reports Of Cases In The Court Of Chancery From 1683 To 1688, William Hamilton Bryson

Law Faculty Publications

This collection of law reports brings together in one place the reports of cases in the Court of Chancery from the short tenure of Sir Francis North, lord Guilford, and that of Sir George Jeffreys, Lord Jeffreys, who was the Lord Chancellor during the reign of King James II. These reports have been scattered heretofore, but it is hoped that, by reprinting them in one place, they can be more easily comprehended individually and the jurisprudence of this court can be better understood. They come from the reigns of King Charles II and King James II, and date from 1683 …

Narrowing The Police Accountability Gap In Civil Rights Prosecutions, Daniel W. Xu

Emory Law Journal

The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. …

A Major Question For The Sec: Analyzing Constitutional Limits On Regulatory Authority, Matthew Diller, Meredith Berger, Samuel W. Buell, John M. Golden, Suzanne Ashley, Coy Garrison, Aaron Saiger, Suman Naishadham, Mary Jo White

Fordham Journal of Corporate & Financial Law

No abstract provided.

The State Of Our Republic: State Constitutions’ Role In Creating A More Perfect Union, Caroline Bullock

CMC Senior Theses

This thesis situates state constitutionalism in the modern context of federal constitutional paralysis. By tracing patterns of state constitutional development, we find that states were always the fundamental setting of democracy, and there has always been critical action happening at state legislatures, in state courts, and through state constitutional change. State constitutions provide an active means to achieve progress and protect rights not federally enshrined (and thus, endangered by the political process). The use of state constitutions to prescribe ways of life, protect individual and specialized rights, and to limit local governments has always occurred, but with the current federal …

The Unreasonableness Of The Reasonable Woman Standard: Evaluating And Reforming Sexual Harassment Jurisprudence, Richa Parikh

CMC Senior Theses

The “Reasonable Woman Standard” was first used in the 1991 case of Ellison v. Brady and has been central in shaping legal responses to sexual harassment. However, as societal norms and understandings of gender dynamics continue to evolve, as we experienced with the #MeToo movement, this “Reasonable Woman” often fails to grow with the times. I argue that this “Reasonable Woman” fails to encapsulate the complexities of sexual harassment experiences across different genders and cultural backgrounds. In this thesis, I deconstruct the historical development of the “Reasonable Woman Standard,” analyzing its roots in the “Reasonable Person Standard.” Through a combination …

Blunt Speech Rights, Nicholas Almendares

Articles by Maurer Faculty

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a …

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

National Law School of India Review

Introduction: TWAIL and the International Law of Jurisdiction.

Death And Discretion: Some Thoughts On Living, Barry Sullivan

Faculty Publications & Other Works

Fifty years ago, James Boyd White inspired a quiet revolution in the world of legal studies. He encouraged lawyers to think more deeply about questions of law and justice by drawing upon the humanities, which provided sources and methods well beyond those that the legal academy then recognized as legitimate ways of thinking and talking about law. Among other things, Professor White insisted that there was a morality to authentic legal argument and decision making that required a close and engaged reading of texts, an understanding of community, and an openness to being persuaded by others. It was a courageous …

Minutes Are Worth The Minutes: Good Documentation Practices Improve Board Deliberations And Reduce Regulatory And Litigation Risk, Given As The 21st Annual Destefano Lecture, Leo E. Strine Jr.

Fordham Journal of Corporate & Financial Law

This Essay, originally the basis for the 21st Annual Albert A. DeStefano Lecture on Corporate, Securities & Financial Law given on February 27, 2024, at Fordham University School of Law, addresses the importance of good corporate minuting and board documentation practices. Using lessons from Delaware cases where the quality of these practices has determined the outcome of motions and cases, this Essay identifies effective and efficient practices to better address this decidedly not sexy, but unquestionably essential, corporate governance task. The recent Delaware cases underscore the importance of quality and timely documentation of board decision-making, the material benefits of doing …

Loper Bright In A Larger Interpretive Perspective: Is This Justice Scalia’S Court Anymore?, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are …

The Sociology Of Bail Reform: Crime, Social Interaction, And Offender Experiences In Rurality., Scott Kevin Turner

Graduate Theses, Dissertations, and Problem Reports (ETD)

The study sought to explore the impact of the New York State “Bail Reform Act of 2019,” in rurality. It examined some of the legislative goals of the law, the claim that it caused crime, and offender experiences in rurality. Secondary data was used to map the rural crime landscape and primary data was collected from offenders during face to face interviews. The study was framed using deterrence and opportunity approaches and situated within the broader field environments; legislative, courtroom, and community. The research failed to find support for the claim that bail reform caused crime. Instead, it revealed that …

Dicta Mines, Pretext, And Excessive Force: Toward Criminal Procedure Futurism, Frank Rudy Cooper

Scholarly Works

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and Brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion.

This Essay’s new insight is that Robinson contains what it calls a “dicta mine.” A dicta mine is (1) an unnecessary statement that (2) a Court silently recharacterizes as having already resolved an issue, (3) exploding it into a significant doctrine. The Robinson dicta mine …

Decisionmaking In Patent Cases At The Federal Circuit, Jason Reinecke

Washington and Lee Law Review

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue. …

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 …

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 …

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

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,” …