Jurisprudence Commons^™

Shifting The Male Gaze Of Evidence, Teneille R. Brown

Utah Law Faculty Scholarship

In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because …

The Judicial Nondelegation Doctrine, Jason Iuliano

Utah Law Faculty Scholarship

“Nondelegation doctrine.” Lawyers know it as the rule barring Congress from delegating power to other branches of government. The doctrine, however, has another side—one that applies to the judiciary. This aspect of the doctrine holds that courts may not delegate judicial power to other branches of government. Nonetheless, courts do precisely that. And they do it thousands of times each and every day. Judges empower non-judicial actors to do everything from making legal findings and rendering sentences to resolving custody disputes and setting probation conditions.

This Article is the first to explore the constitutionality of these kinds of delegations. To …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Theorizing Access To Civil Justice, Matthew Dylag

Articles, Book Chapters, & Popular Press

Despite more than half a century of reform efforts, access to civil justice is still understood to be in a state of crisis. Part of the reason for this is because there is no consensus among the legal community on the meaning of justice in this context. This paper seeks to provide a muchneeded theoretical underpinning to the access-to-civil-justice movement. It advances ‘justice as fairness,’ as articulated by the American philosopher John Rawls, in conjunction with Lesley Jacobs’ model of equal opportunities, as a suitable theory in which to frame the access-to-civil-justice movement. I explain why this framework is appropriate …

James Ravenscroft's Reports Of Cases In The Court Of Common Pleas (1623-1633), William Hamilton Bryson

Law Faculty Publications

James Ravenscroft was born in 1595, the son of Thomas Ravenscroft of Fould Park, Middlesex, and Bridget Powell. The Ravenscrofts were an ancient Flintshire family. (Thomas Ravenscroft (1563-1631) was a cousin of Lord Ellesmere's first wife, a member of Parliament in 1621, and a Cursitor in the Chancery.) James was admitted at Jesus College, Cambridge, in 1613, and received his B.A. degree in 1616. He was admitted to the Inner Temple on 29 May 1617, and he was called to the bar on 21 May 1626. James was married to Mary Peck; they resided in High Holborn, and had eleven …

Gun Range Immunity: An Argument Against Legalized Nuisance And Non-Governmental Takings, Match Dawson

Faculty Articles

People exhausted by the increasingly fast-paced life and loud noises of the big city will often seek refuge in the solitude of quiet country living. Perhaps naive, the romantic thought of waking to the scenic views of an early morning sunrise burning an orange hue across the pasture or the sweet sounds of a Bachman's sparrow singing from the birdhouse placed neatly within view of the kitchen window is abruptly squashed when rural landowners fall victim to the excessively loud sport of outdoor firearm shooting.

Protecting rural landowners' rights to the quiet use and enjoyment of their property has been …

The Lawyer As Dream Enabler, Gerald S. Reamey

Faculty Articles

In law school and in law practice, the power of preparation is reinforced. Generations of law students have heard me extol the virtue of preparation above all others. While it is true, even the best preparation will never beat luck; luck is fickle and not subject to our control. On the other hand, we totally control the amount and quality of the preparation we put into any project. I discovered preparation is more important than good looks, nice clothes, a shiny leather briefcase, eloquence, experience, or even intelligence.

Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson

Articles & Book Chapters

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court's opinions and show …

The Challenges Of Police Defunding And The Reimagination Of Public Safety, Stephen Rushin

Faculty Publications & Other Works

No abstract provided.

The Law Enforcement Lobby, Stephen Rushin, Zoe Robinson

Faculty Publications & Other Works

The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby operates largely without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that often institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the …

A Federal Legislative Proposal To Address The Demise Of The Bivens Remedy, Henry Rose

Faculty Publications & Other Works

No abstract provided.

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Judicial Activism Of Justice Anthony Kennedy, Carlos A. Ball

American University Law Review

Few recent Supreme Court justices have had a greater impact on constitutional law than Anthony Kennedy. Although commentators have explored the substance of Justice Kennedy’s jurisprudence in some detail, legal scholars have not systematically analyzed the extent of his judicial activism. This Article uses the term “judicial activism” descriptively rather than normatively to help account for a judge’s willingness to strike down federal, state, and local laws on constitutional grounds. It finds that, under a descriptive definition, when compared to the justices with whom he served, Justice Kennedy was a singularly judicial activist judge.

This conclusion rests on three findings. …

The Art Of International Law, Hilary Charlesworth

American University Law Review

International lawyers study international law primarily through its written texts—treaties, official documents, judgments, and scholarly works. Critical to being an international lawyer, it seems, is access to the written word, whether in hard copy or online. Indeed, as Jesse Hohmann observes, “the production of text can come to feel like the very purpose of international law.”

Role-Reversibility, Ai, And Equitable Justice — Or: Why Mercy Cannot Be Automated, Stephen E. Henderson, Kiel Brennan-Marquez

Faculty Articles

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within …

The Roberts Court’S Anti-Democracy Jurisprudence And The Reemergence Of State Authoritarian Enclaves, Reginald Oh

Journal of Race, Gender, and Ethnicity

This Essay argues that the Roberts Court has been a pivotal institutional player in destabilizing constitutional democracy. It has enabled states to freely pursue agendas that are authoritarian in nature. And because authoritarianism is contrary to core principles of the Constitution, the Roberts Court’s constitutional jurisprudence has no basis in the Constitution and must ultimately be rejected.

Instead of taking steps to block authoritarian legislation and promote a fair and open political process, the Court has issued rulings catalyzing and reinforcing the authoritarian impulses of the former Jim Crow states. The Roberts Court has engaged in judicial review reinforcing authoritarianism, …

Hallows Lecture: Complexity And Contradiction In American Law, Gerard E. Lynch

Marquette Law Review

None.

Real Mediation Systems To Help Parties And Mediators Achieve Their Goals, John Lande

Cardozo Journal of Conflict Resolution

No abstract provided.

Beyond Problem-Solving Courts, Erin R. Collins

Cardozo Journal of Conflict Resolution

Problem-solving courts were borne out of well-meaning experimentalist spirit, a spirit that is very much in line with the vision of this Symposium on the multi-door criminal courthouse. These courts, which include drug courts, mental health courts, veterans' courts, and many other specialized criminal courts, were created as a way to close one door to the criminal courthouse-the so-called "revolving door" that appeared to bring some people accused of crimes back into court as soon as they exited. Problem-solving court judges sought to open a different door for some of those who entered their courtrooms, a door that they hoped …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Protecting Ravenstail: Cultural Appropriation And The Outer Limits Of Copyright Law, Nosson Sternbach

Cardozo Arts & Entertainment Law Journal

The note examines the challenges minority cultures, particularly indigenous communities, face in protecting their cultural heritage through copyright law, focusing on the Sealaska Heritage Institute Inc. v. Neiman Marcus Group LTD, LLC case. It argues that copyright law's requirements—such as fixation, originality, authorship, and duration—create significant barriers for indigenous cultures seeking to safeguard their intellectual property. The note also critiques the Indian Arts and Crafts Act (IACA) for its inefficacy in preventing cultural appropriation, as it requires plaintiffs to prove specific harms and often fails to address the misuse of cultural motifs without explicit tribal names. The Sealaska case highlights …

Reasonable Classification Versus Equality Under The Indian Constitution, Jahnavi Sindhu, Vikram Aditya Narayan

National Law School Journal

This article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive …

Alexander Forrester's Chancery Reports, William Hamilton Bryson

Law Faculty Publications

This is a new edition of Alexander Forrester's Chancery reports. It is based upon the best manuscript copy that has survived, Lincoln's Inn MSS. Misc. 52 and Misc. 54, and the first printed edition. The edition that was first published in 1741 included only the cases from 1732 to 1739. Compared to the copy in Lincoln's Inn, they are not much different in quality from each other. The cases in the 1741 edition are the basis for this edition as far as they go. The learned apparatus of the third edition by John Griffith Williams (d. 1799) has not been …

Taking Corrigibility Seriously, Dora Klein

Faculty Articles

This article argues that the Supreme Court's creation of a category of "irreparably corrupt" juveniles is not only an epistemological mistake but also a tactical mistake which has undermined the Court's express desire that only in the "rarest" of cases will juveniles be sentenced to life in prison without the possibility of parole.

Re-Striping: Predatory Trademarks And Common Signs, Lior Zemer, Or Morag, Yochai Rosner

Cardozo Arts & Entertainment Law Journal

Trademark laws were traditionally designed based on the belief that there was an infinite supply of eligible registrable signs. However, current studies show that trademark supply is finite, and that we are close to exhausting it. While trademark protection allows proprietors to distinguish between their goods or services from others, and allowing the public to do the same, the extent of such protection requires constant legal attention and reconsideration which, as contemporary trademark policies show, does not take place in the expected frequency.

One of the immediate consequences from this lack of attention is the rapid growth in strength of …

A “Rhode” Block On The Journey To The American Dream, Jesse Manning

Roger Williams University Law Review

No abstract provided.