Jurisprudence Commons^™

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Breaking Kayfabe, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all?

To answer these questions, the Article looks to an unusual source: …

Rethinking Juror Impartiality, Anna Offit

Faculty Journal Articles and Book Chapters

Jury impartiality in the contemporary court often justifies the perpetuation

of exclusionary selection practices that make juries more—not less—biased.

This Article calls for a rethinking of this important but flawed concept. Constitutional

interpretations and conceptions of “impartiality” frame it as a transient

orientation toward particular evidence or parties. Yet, during voir dire, the prevailing

conception of jury impartiality is that it is an immutable character trait

that must be discovered—if not created—by professional legal actors. What voir

dire creates is not an impartial jury, but precisely the opposite: a venire shaped

by the strategic biases of lawyers.

This Article offers …

Stereotypes As Character Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Base rate evidence often connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

In this Article, I show that although some forms of base rate evidence are desirable and even critical to achieving an accurate case outcome, a …

Institutionalized Ostracism, Danieli Evans

Michigan Journal of Race and Law

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

The Inconvenience Doctrine, Alexi Pfeffer-Gillett

Scholarly Articles

In a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries.

This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with …

Public Private Property, Xiaoqian Hu

Marquette Law Review

Many struggles are being fought in America today around regulation and redistribution of private property rights: between owners’ right to develop land and society’s need for environmental conservation; between landlords’ privilege to charge higher rents and society’s need for affordable housing, between property owners’ desire for protection from negative effects and unhoused persons’ need to live in the only space accessible to them, etc. These struggles, however, are doomed by a widely shared notion that public and private are inherent qualities in a zero-sum game. This Article refutes this notion. Building upon Legal Realist, post-Realist, and poststructuralist insights, it argues …

Military Service Academies: The Final Battleground For Affirmative Action, Krista Trefen

American University Law Review

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding, reserving space for race-conscious practices tied to national security-the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military …

2025 Shepard Broad College Of Law Admissions Viewbook, Nova Southeastern University

Shepard Broad College of Law Viewbook

No abstract provided.

Commonsense Consent And Action Representation: What Is “Essential” To Consent?, Roseanna Sommers

Book Chapters

Recent empirical work demonstrates that some instances of material deception are perceived by ordinary people as consent-defeating, whereas other instances are not. One hypothesized account of these divergent lay intuitions draws on the notion of “essence”: roughly speaking, lies that pertain to the “core” or “nature” of a consented-to act are perceived as precluding consent, whereas lies that pertain to features that are “nonessential” or “collateral” to the act are perceived as compatible with consent. To assess this hypothesized account, an independent measure of “essence”—one that does not rely with problematic circularity on notions of consent—is needed. This chapter draws …

Causation's Due Process Dimensions, Cassandra Burke Robertson, Charles W. "Rocky" Rhodes

Faculty Publications

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 …

#Taxback? Prohibiting State Real Property Taxes On Land In Indian Country, Pippa Browde

Marquette Law Review

Land is a critical asset of Indian tribes. As tribes wrestle with how to create sustainable economies to support their sovereignty, the use and management of tribal land is integral. Taxation is a key component of economic development. This Article is about taxation of land within Indian country. It considers existing law that allows for state taxation of some land within Indian country. It makes a normative claim as to who the proper taxing sovereign should be based on tax policy principles and principles that support tribal self-governance and tribal sovereignty.

In Part II, this Article provides the background for …

The Inadequacy Of Perpetuating Vestiges Of Segregation In K-12 Curriculum: The Justiciability Of Reviewing Duties To Adequacy In Florida's Education Clause, Soumya Sreerama

American University Journal of Gender, Social Policy & the Law

Although the Supreme Court declared segregation the most abusive affront to education and ruled to eliminate vestiges of segregation “root and branch,” those same roots have grown unchecked to remain prominent today. One of the undercurrents of state-sponsored discrimination that has escaped desegregation remedies is the skewed, whitewashed curriculum that permeated K-12 classrooms in Jim Crow America. More troubling, is that those vestiges of an inadequately biased curriculum are still slithering in students’ courses today. Although student movements and education reformists have attempted to counter skewed curricula by supplementing them with separate ethnic studies courses, states like Florida recently passed …

Substance And Process In Corporate Law: Theory And History, William Wilson Bratton, Simone M. Sepe

Articles

Over the last half-century, corporate law has moved from substance to process as the Delaware courts have avoided direct review of the merits of transactions, substituting review of the processes that brought the transactions about. This is a familiar observation, perhaps a truism. But it is a truism that is undertheorized. This article addresses the theory gap, suggesting a structural reason for the trend. Simply, the courts avoid reviewing substance because they lack a theory of value. The theoretical void disables direct evaluation of transactional merits. Process review avoids this problem. Processes and their operation are the lawyer's stock in …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Scientific Educations Among U.S. Judges, Christa J. Laser

American University Law Review

Should more judges have technical and scientific educations than are currently prevalent in the federal judiciary? This empirical study of the educational background of federal judges reports the undergraduate and graduate majors of active U.S. federal Article III judges. Information on the subject area of study is largely not publicly available, especially for judges appointed decades ago. This is the first and only publicly available research study of the subject areas of study of U.S. judges, collected via phone and email surveys to U.S. judges. The results of this study show that only 7.35% of federal judges have majors in …

The Right To Acquire Property, John G. Sprankling

American University Law Review

Can government prohibit the acquisition of all types of property? The intuitive answer to this question is “no.” But why? Is there a constitutional right to acquire property? And, if so, how does it apply if government merely prohibits acquisition of a certain type of property, such as contraceptives?

The Fourth, Fifth, and Fourteenth Amendments restrict when property may be “taken” or “seized” and when a person may be “deprived” of property. Thousands of law review articles and hundreds of books have analyzed the scope of these provisions. But almost no modern attention has been devoted to their logical counterpart—the …

The Paradox Of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, Chance Villarreal

American University Law Review

The continuing-risk rule is ubiquitously cited by Restatements, casebooks, and treatises as a core duty rule in negligence cases. Indeed, as this Article reveals, the rule has been “adopted”—in the sense that at least one court in a jurisdiction has applied the rule, and no court has rejected it—in thirty-one jurisdictions. In addition to the breadth of its adoption, the continuing-risk rule is also far-reaching: it imposes an affirmative duty to warn, protect, or rescue another from a risk if the defendant’s conduct contributed to the initial creation of that risk. Because most negligence cases involve risk-creating conduct by the …

Survivors Behind Bars: The Criminalization Of Abuse, Assault, And Human Trafficking Victims And The Need For A Trauma-Informed Approach, Jamie Beck, Chelsea Estes

Roger Williams University Law Review

No abstract provided.

From Downes To Dobbs: Why Stare Decisis Should Not Stop The Court From Overturning The Territorial Incorporation Doctrine, Gino Piccinini

Indiana Journal of Law and Social Equality

No abstract provided.

Do Federal Circuit Courts Of Appeal Provide Adequate Assistance To Self-Represented Litigants? A Review Of The Circuits’ Websites Resources, Jona Goldschmidt

Indiana Journal of Law and Social Equality

No abstract provided.

Precedential Trauma: Integrating Trauma-Informed Judging In Federal Courts Of Appeals Through Opinion Writing, Alison Brochu

Roger Williams University Law Review

No abstract provided.

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

Chevron Stare Decisis In A Post-Loper Bright World, Jonathan R. Nash

Faculty Articles

In its June 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which had directed courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Loper Bright Court attempted to minimize the substantial effect this change would have on administrative law and governance by declaring that “[t]he holdings” of cases that relied on the Chevron test to conclude “that specific agency actions are lawful...are still subject to statutory stare decisis despite our change in interpretive methodology.” But there are two problems with Chevron stare decisis. First, Chevron stare decisis is …