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Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

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 …

Unvaccinated By Doubt: How Covid-19 Governance Sparked A Measles Revival, Ellen Black

FIU Law Review

A measles outbreak occurred in the United States this year, with measle cases reaching the highest levels in over two decades, even though the disease had been declared eliminated in 2000. In large part, this measles resurgence can be traced to unvaccinated individuals who have chosen to disregard public health officials' vaccination guidance. Clearly, the public has lost trust in their governmental public health officials. As the next disease outbreak looms, the need for restoration of trust becomes imperative.

This article demonstrates how the government's actions during COVID-19 further led to this lack of trust, by providing conflicting guidance as …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Mind The Gap(S): Mitigating Harassment In A Post-#Metoo Workplace, Jamillah Bowman Williams, Elizabeth C. Tippett, Anu Ramdin

Georgetown Law Faculty Publications and Other Works

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. …

I Hate Self-Care: A Criminal Defense Lawyer’S Lament, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Don’t get me wrong—I think people should take care of themselves. They should eat well, exercise regularly, and get a good night’s sleep. They should spend time with friends and family. They should have hobbies and interests. With any luck, they should find true love. But in the past decade or two, and especially since the COVID pandemic, there has been a disturbing turn inward. I’m talking about the “self-care” craze, which has become its own pandemic, or at least epidemic.

…

In this Essay, I share my concerns about what I regard to be an excessive focus on self-care …

The Impact Of Covid-19 Pandemic Demands On By-Law Officer Wellness And Work, Harveen Randhawa

Theses and Dissertations (Comprehensive)

This research sheds light on how the rapid demand to enforce transitioning pandemic-related (and reopening) mandates impacts the wellness of bylaw officers in the context of resource strain. Ontario bylaw officers are at the forefront of the province’s response, enforcing lockdown rules to ensure community safety. This research is imperative in understanding how bylaw officers maintain their roles in municipal enforcement, while enforcing rapidly shifting COVID-19 regulations and moving forward into a post-lockdown climate. The research focuses on identifying and understanding the demands and resources that currently typify bylaw officers working in Southern Ontario. It further examines how the COVID-19 …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

FIU Law Review

In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however, particularly the social and political upheaval over protests of the war in Gaza, have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. All this has raised questions about whether the National Strategy's assumptions about public attitudes, the viability of antisemitism awareness initiatives, and the possibility of whole-of-society agreement on countering antisemitism …

Uncharitable Think Tanks, Faith Stevelman

FIU Law Review

As people debate whether the Heritage Foundation’s Project 2025 is good policy, what’s being overlooked is that it’s likely unlawful as the work product of a charitable think tank. (Think tanks nearly always are qualified as charities under the tax code.) To reinforce think tanks’ educational mission, tax law sets rigorous content requirements for their materials. It also bans them from campaigning, sharply limits their lobbying, and prohibits their benefiting private parties. The doctrines are intended to keep think tanks charity-worthy educators, but they have not succeeded.

Ironically, the failure reflects other features of tax law that incentivize using think …

Reform For Realists: The False Promise Of Condorcet Voting, G. Michael Parsons, Rachel Hutchinson

Marquette Law Review

As Americans grow disenchanted with democracy, many scholars suggest that election reforms may offer a path forward. The fastest growing of these reforms is ranked choice voting (RCV). In RCV elections, voters rank candidates in order of preference: first, second, third, and so on. The candidates with the least support are eliminated, and ballots that ranked those candidates count for their next choice instead. This method has over a century of use in public elections and provides proven benefits well-suited to many of the problems facing our country.

Yet some social choice theorists now argue that reformers have backed the …

The Excluded: Where Did Our Rights Come From, Who Paid The Price Trying To Establish Them, And Who Is Trying To Take Them Away? The Centuries-Long Struggle For Inclusion, Jim Brosnahan

University of San Francisco Law Review

No abstract provided.

From The Court To The Courtroom: A Stanley Lens To Potential Equal Pay Act Claims For Women’S Collegiate Athletes, Katrina L.G. Murphy

University of San Francisco Law Review

No abstract provided.

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Environmental Law And Social Mistrust- How The Repeal Of The Chevron Doctrine May Hinder The Epa And More, Rebecca R. Collins

Honors Undergraduate Theses

I am specifically studying the effects of a recent Supreme Court decision will have on administrative law and specifically on the EPA. Simply put, the decision is likely going to foster distrust within the EPA and decisions that are made within environmental law, as the shift goes away from scientific experts, but to less educated legal professionals who interpret the laws. In the past, people thought of the initial Chevron decision as incredibly beneficial for scientific matters and for the environment. Chervon was removed recently with another Supreme Court decision that made this idea obsolete, removing professionals from the power …

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

Moral Politics Theory Applied To Abortion: Utopias, Dystopias, And Dobbs, Susan Ayres

Faculty Scholarship

This article examines Moral Politics Theory (MPT) as a way to understand current tensions in the US concerning reproductive justice. MPT, as developed and researched for over thirty years by cognitive scientist, George Lakoff, provides a way to explain differences in political worldviews. According to Lakoff’s research in Moral Politics and Don’t Think of an Elephant!, conservatives tend to hold a strict-father model, and progressives hold a nurturant-parent model. People in the political middle tend to endorse both models; Lakoff labels those in the middle as “biconceptuals,” and discusses how this group is most susceptible to persuasion because metaphors frame …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Faculty Scholarship

With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced. 

Employers have become savvier in how they require employees to agree to resolve discrimination …

Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman

Faculty Scholarship

Self-regulation—governance of firm behavior by private entities—has a long history both in the United States and globally, and there is an extensive literature on the topic. But there has been far less attention paid to the role self-regulation can play in spurring and enabling innovation and growth within emerging industries. These industries—both currently ascendant ones such as hydrogen and artificial intelligence, as well as formerly new (but now well established) activities in hydraulic fracturing and Internet communications—plausibly benefit from self-regulation’s ability to coordinate economic actors and reassure often skeptical publics. Examining the ways that self-regulation impacts this special type of …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Faculty Scholarship

Generative AI, machine learning and other computational uses of copyrighted works pose profound questions for copyright law. This article conducts of global survey of how different countries have attempted to answer these questions in relation to the unauthorized use of copyrighted works for training. Although the world has yet to achieve international consensus on this issue, an international equilibrium is emerging. Jurisdictions with common law and civil law traditions, and with varying economic conditions, technological capabilities, political systems, and cultural backgrounds, have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text data mining, …

The Search For Unenumerated Fundamental Rights, Alina Sluzhyvenkova

Student Theses and Dissertations

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which …

What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani

Brooklyn Journal of Corporate, Financial & Commercial Law

Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …

The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins

Journal of Law and Policy

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …

The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia

Journal of Law and Policy

Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …