Law and Politics Commons^™

Administration As Democratic Trustee Representation, Katharine Jackson

Faculty Articles and Other Publications

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic …

The Public Trust: Administrative Legitimacy And Democratic Lawmaking, Katharine Jackson

Faculty Articles and Other Publications

This Article argues that recent United States Supreme Court decisions invalidating agency policymaking rely on a normatively unattractive and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their …

Contemporary Tribal Lawyering & Legal Ethics, Murphy Chen

PEEL Alumni Scholarship

No abstract provided.

The 2022 U.S. Steel/Aluminum Tariff Ruling: A Legal Reckoning For The United States And The Wto Over The National Security Exception In International Law, Klint W. Alexander

American University Law Review

On December 9, 2022, the World Trade Organization (WTO) issued landmark rulings against the United States in four cases brought by China, Switzerland, Norway, and Turkey involving the U.S. imposition and maintenance of restrictive trade measures on steel and aluminum imports dating back to 2018. The major effect of the rulings was to quash the idea that a WTO member had unfettered discretion to invoke the national security exception under Article XXI(b) of the General Agreement on Tariffs and Trade (GATT 1994) whenever it suits its interests. The recent decisions build upon important WTO precedents addressing the applicability of the …

The Revolution Will Not Be Moderated: Examining Florida And Texas's Attempts To Prohibit Social Media Content Moderation, Caroline Jones

American University Journal of Gender, Social Policy & the Law

Today, around seventy percent of American citizens actively use social media for news content, entertainment, and social engagement. Since 2005, the number of Americans using social media in some capacity has increased 13 fold from five to sixty-five percent. Despite numerous studies demonstrating a correlation between social media rhetoric and real-world violence against women, racial and ethnic minority communities, and the LGBTQIA community, both Florida and Texas passed bills limiting the ways in which social media sites can moderate the content and users on their platforms in 2021. Florida’s Senate Bill 7072 requires social media platforms to allow political candidates …

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

Gender And The Constitutional Theory Of The Firm, Jamee K. Moudud

Seattle University Law Review

This Article adds to the literature that has linked feminist economics to foreign trade and development. It argues that two key factors need to be in place jointly if efforts to promote gender equity are to succeed. On the one hand it argues that foreign debt is an important constraint to domestic progressive social policies of all kinds as it increases the power of international creditors who generally tend to support austerity policies. On the other hand, while alleviating the burden of foreign debt via exportpromotion policies is necessary, it is by no means a sufficient condition to promote domestic …

Court’S Choice Of Law Ruling Undermines Washington Community Property Law: A Critique Of Shanghai Commercial Bank V. Chang, Brian D. Hulse

Seattle University Law Review

This Article deals with the issues that arise when Washington courts face the following scenario. One spouse enters into a contract without the joinder (and perhaps without the knowledge) of the other spouse. Both spouses are domiciled in Washington. The contract has contacts with one or more jurisdictions other than Washington and is generally governed as to validity and interpretation by the law of another jurisdiction. The contracting spouse defaults and the other party to the contract obtains a judgment on the contract. The court confronts a question about the property to which the plaintiff will have recourse to collect …

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

Russia, Ukraine, And The Challenge Of Wartime Accountability, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

There has been a notable shift in the emerging Russian perspective on international law and international organizations, a trend that began nearly a decade prior to Russia's invasion of Ukraine. Over this period, Russia has made substantial alterations to its laws, constitution, and international commitments, effectively withdrawing from previously accepted legal obligations. Furthermore, Russia has increasingly rejected fundamental international legal norms and principles with growing fervor.

In the keynote remarks delivered during the Texas Tech Law Review 2023 Criminal Law Symposium, the author delves into this significant shift, providing illustrative examples.

Exhuming Nondelegation . . . Intelligibly, Zachary R.S. Zajdel

Fordham Journal of Corporate & Financial Law

Whether by avalanche or a thousand cuts, the intelligible principle test may be awaiting its untimely demise at the behest of a reinvigorated nondelegation movement. Perhaps looking to speed up the decomposition, the Fifth Circuit in Jarkesy v. Securities and Exchange Commission struck down the SEC’s discretion to pursue enforcement actions with its own Administrative Law Judges or in federal court as unconstitutionally delegated legislative power. This Note posits that Jarkesy was rightly decided but rife with uncompelling reasoning. Establishing this requires a detour into the meaning of the Necessary and Proper Clause, the significance of the separation of powers, …

From Conciliation To Conflict: How Dobbs V. Jackson Women's Health Organization Reshapes The Supreme Court's Role In American Polarized Society, Shai Stern

Loyola University Chicago Law Journal

Professor Shai Stern of Bar Ilan University in Israel analyzes the Court’s decision and argues that its approach not only denies a previously recognized constitutional right, but also opens the door for the challenge to other recognized rights. In addition, Professor Stern highlights the Court’s own delegitimization and contribution to rising political polarization.

The Distribution Of Justices' Votes And Countering National Disunity, Nicholas L. Georgakopoulos

FIU Law Review

The estimation of the distribution that matches the voting of the justices of the Supreme Court shows that voting is correlated and reveals three phenomena: an outlier distribution produced by one composition of the Court, the surprising frequency of unanimous decisions, and the intensity with which the Court avoids 4–4 decisions. The intensity with which the Court avoids 4–4 splits and the strength of the drive to produce unanimous decisions seem sensitive to national disunity. At times of greater disunity, 1965 to 1975 and 2001 to 2020, the Court avoids 4–4 splits more intensely and has a greater fraction of …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Selective Patronage, Omari Scott Simmons

Seattle University Law Review

Contemporary academic corporate governance narratives have a blind spot. They focus on institutions, rules, regulations, processes, procedures, intermediaries, and market forces. Yet, missing in this narrative, is the impact of corporate leadership. Ignoring the “black box” of corporate leadership, particularly individual actors, renders an incomplete descriptive assessment as well as potential miscalculations. The examination of key historical figures and their corporate activism provides an important lens through which to identify potential challenges and opportunities related to the contemporary ESG movement.

Generally, this essay examines corporate leadership’s potential to address socio-political issues through the prism of Civil Rights Movement activism. Specifically, …

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

Reframing The Dei Case, Veronica Root Martinez

Seattle University Law Review

Corporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

Abortion Rights As (Inter)National Human Rights: Dobbs And The Noncompliance Of U.S. Abortion Policies Under International Human Rights Law, Sydney Chong Ju Padgett

Lewis & Clark Law Review

The current state of reproductive rights in the United States following Dobbs v. Jackson Women’s Health Organization constitutes yet another chapter in the saga of the United States’ hypocrisy in failing to uphold international human rights at the domestic level. International human rights law unequivocally provides that safe and legal abortion access is a fundamental human right. Yet, applying treaty body guidance to the cruel and irrational legislation enacted in Dobbs’ wake, it is clear: the United States has wholly and dangerously failed to comply with its international commitments to protect and uphold the fundamental rights at stake in regulating …

Using Youtube To Explain Housing, Michael Lewyn

Scholarly Works

In 2021, the author ran for Borough President of Manhattan, New York. The author tried to his scholarship into his campaign by producing over twenty Youtube videos, most of which addressed land use and housing policy. The article describes the videos, and evaluates their usefulness.

Constitutionalism Today: The Prospects Of The European Constituional Community, Susanne Baer, Kriszta Kovacs, Maya Vogel

Book Chapters

In the late 1940s a consensus emerged: a post-World War II, post-colonial, post-authoritarian, grand consensus in Europe and beyond. Dignity, liberty, and equality should not merely be promises on paper or an elitist privilege for the few, and representative democracy should be the way to run societies. This consensus certainly gave birth to a variety of legal regimes, but it also defined a baseline for the political systems we call constitutional democracies: first, power should be distributed to parliament and representative government via fair elections that ensure equal voting rights and a realistic option of a peaceful change of government …

Cheap Speech And The Gordian Knot Of Defamation Reform, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This article addresses the complex past and uncertain future of defamation law in order to evaluate complaints lodged against it by critics, including—most notably—U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch. The article describes how statutory and constitutional reforms have altered the legal landscape of defamation law over the past half-century and explains why the common law has played a less prominent role. The article then assesses the criticisms of Justices Thomas and Gorsuch, finding them to rest on flawed understandings of how today’s defamation law operates. After identifying barriers to reform, the article offers a prescription to modernize …

The Application Of Law As A Key To Understanding Judicial Independence, Tahirih V. Lee

FIU Law Review

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong …

Retooling Blue-Ribbon Advisory Committees For A Post-Fact World, Will Rhee, Claire Flynn Sellers

West Virginia Law Review

No abstract provided.

Reckless Associations, Jane R. Bambauer, Saura Masconale, Simone M. Sepe

UF Law Faculty Publications

This Article provides a theoretical foundation and practical guide for a new form of liability that has proven necessary in the Internet era: the tort of Reckless Association. This tort would hold de facto leaders of informal networks responsible when radicalized members of the network cause physical harm to others. Recent prosecutions of the leaders of the Oath Keepers and other white supremacists who organized the Charlottesville protest, and rumblings of a similar prosecution against Donald Trump, demonstrate that there is a public appetite for this form of legal responsibility. To date, these prosecutions proceed on theories of incitement or …

Untangling Defamation Law: Guideposts For Reform, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This article, which is based on a keynote address given at the 2023 Missouri Law Review Symposium, addresses the past and predicted future of defamation law in hopes of galvanizing needed reforms. As a necessary backdrop, this article explains why today’s defamation law remains so complex, tracks reforms over the last half-century, and explains why the common law of defamation has not adapted adequately to the challenges posed by cheap speech in the digital era. The article then turns to assessing the complaints of defamation law’s most prominent would-be reformers and finds them to rest on an incomplete understanding of …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents