Law and Politics Commons^™

A Meaningful Life: The Future Of Juvenile Justice In Washington After Anderson, Samuel Coren

Seattle University Law Review

Until 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s …

Sneakers, The Shoes That Talk The Talk And Walk The Walk: How Jack Daniel’S Properties, Inc. V. Vip Products Left Its Footprint On Trademark Law And The Sneaker Industry, Nitya Tolani

Seattle University Law Review

As the fashion industry—including the sneaker industry housed within it—continues to go through the motions of collectively flocking out, and then collectively flocking again to the newest innovations in the world of wearables, the landscape of laws to protect and promote those innovations expands as well, mainly in the area of intellectual property law. Although copyright, trademark, and patent law can cover innovations in the fashion industry, this Note centers its analysis on trademark law. Trademark law has been through notable change in recent years because of the United States Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. …

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Governor Kate Brown Of Oregon’S Historic Use Of Clemency: Using Clemency Exactly As It Was Intended, Mark Cebert, Aliza B. Kaplan

Lewis & Clark Law Review

In Oregon, executive clemency is among the most expansive, yet historically underused, power a governor possesses. Yet, across her two terms as Oregon’s 38th governor, Governor Kate Brown exercised her power of executive clemency a record 61,777 times, dwarfing the clemency use of her predecessors and her contemporaries in other states. Governor Brown’s proactive approach to clemency presents a model for executive involvement in criminal justice reform and aligns with her beliefs of a redemptive and rehabilitative criminal legal system.

In this Article, we examine Governor Brown’s use of clemency, analyzing what her stated and implied rationales reveal about her …

Discretion, Judgement, And The Supreme Court’S Docket: Litigating Presidential Immunity, Barry Sullivan

Loyola University Chicago Law Journal

The following remarks were delivered at Loyola University Chicago School of Law's Annual All-Journals Banquet in April 2024. The Supreme Court had not yet heard oral arguments or rendered a judgment in Trump v. United States, the presidential immunity case stemming from the former president's alleged efforts to overturn the 2020 election. In his remarks, Professor Sullivan reflected on the importance for American democracy of the issue presented in the case, namely, the extent to which a former president may be held legally responsible for criminal acts he allegedly committed during his presidency. The remarks did not go to the …

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

Fifa's One Association - One Vote Rule: Does Democratic Governance Ensure Its "Corporate" Integrity?, Ilias Bantekas

American University Business Law Review

This article suggests that in the absence of any requirement in favor of democratic governance of corporations and non-profit entities in national law, as well as in light of a general practice of bifurcated systems (oscillating between de jure equality and power-based governance) in respect of intergovernmental organizations, a nondemocratic governance structure in international sports federations would not deviate from the general rule. What is clearly at stake in complex organizations is effectiveness in achieving the aims of the organization, irrespective if all members are satisfied. The deceptively democratic nature of sporting federations such as FIFA is very much the …

Studying Conspiracy Theory After The (Current) Rise Of Right-Wing Populism, Mark Fenster

UF Law Faculty Publications

The American historian Richard Hofstadter intended his still-influential essay on the “Paranoid Style in American Politics,” which initiated the modern study of conspiracy theories, as a response to the mid-1950s rise of right-wing populism in the US. Reflecting on the lessons we can learn from the insights and weaknesses of Hofstadter’s timely intervention into contemporary politics, as well as the author’s three decades studying conspiracy theories, the chapter asks how current academic work, which takes place within and responds to another rise in rightwing populism, should understand and intervene in the present and prepare for the future.

Second-Tier Marriages, Jeremiah A. Ho

All Faculty Scholarship

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now "on the books," the Supreme Court's treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n and 303 Creative LLC v. Elenis reveals the status quo's hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court's LGBTQ …

Colonialism, Jurisdiction, And Sovereignty In Palestine, Usha Natarajan

National Law School of India Review

Knowledge production is never neutral, and academia – much like international laws and institutions among other social structures – is a key conduit for the efficient operations of power. Israel’s longstanding occupation and settler colonialism in Palestine challenges mainstream accounts of the international laws of jurisdiction, whereas Chimni’s TWAIL analysis better accounts for and predicts the imperial operations of such laws and points to fruitful evolution towards fairness and justice.10 I elaborate by considering firstly the exercise of jurisdiction during occupation and settler colonialism, and secondly the exercise of universal jurisdiction by states. I conclude with some thoughts on jurisdiction …

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

Derailing Democracy, Shrinking Responsibility: The New Election Law Landscape, Cory Conley, Tonja Jacobi

Faculty Articles

In democracy jurisprudence, the Roberts Court wears two faces. Its most recent duo of cases illustrates the inconsistency. In Rucho v. Common Cause, the Court ruled that even grossly partisan gerrymanders are nonjusticiable in federal courts. Yet, in Moore v. Harper, the Court rejected granting unreviewable authority to state lawmakers to regulate federal elections—for now. This combination of rulings is not ideological moderation or judicial restraint, as the Court claims. These recent cases are emblematic of broader unpredictability and selectivity in election law. The assertions of judicial humility in Rucho stand in stark contrast to the bald activism …

Michigan Senators' Crucial Role In Keeping Federal Courts Full, Carl Tobias

Law Faculty Publications

One critical responsibility that the American Constitution assigns senators is the provision of comprehensive advice and consent respecting accomplished federal judicial candidates suggested by the President to serve, particularly in their home states. Democratic Senator Debbie Stabenow, who is completing her fourth term representing Michigan, has always joined with her colleague Democratic Senator Gary Peters in the administration of President Joe Biden and Vice President Kamala Harris to astutely discharge this crucial responsibility. Stabenow and Peters exercised sound judgment, intelligence, hard work, and keen appreciation for the distinct roles that the Constitution accords the President and senators in the confirmation …

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 …

What Fischer V. United States Gets Wrong About Prosecutorial Discretion, Cindy J. Cho

Articles by Maurer Faculty

Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021.  Making good on those worries, the conservative majority in Fischer v. United States, rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical.

This article attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases.  A survey of ten January 6 cases …

Third World Statehood Before The ‘Third World’: Imperialism, Sovereignty, And The Making Of Latin America, Eric Loefflad

National Law School of India Review

Engaging BS Chimni’s claim that the genealogies of colonial capitalism are vital to uncovering the substantive realities that animate formalistic conceptions of jurisdiction, I argue that the independence of Latin America forms an important, yet under- theorised, site for articulating these genealogies. This is especially significant given the general lack of materialist analysis of this history in both Latin American International Law (LAIL) and Third World Approaches to International Law (TWAIL’). Filling this lacuna, I argue that while Latin American polities emerged as bounded territorial states, their recognition as such must be understood in relation to how Europe and the …

Human Rights And Jurisdictional Trajectories: Shedding Light On The Colonial Genealogy, Rongeet Poddar

National Law School of India Review

International law’s tryst with colonialism has continued to have a significant bearing on the shifting sands of jurisdiction in relation to human rights enforcement. Even as the apparition of empire loomed large over Third World states, a ‘universal’ yet non- binding catalogue of human rights had become reality with the birth of the UDHR. As recognized in Article 2 of the document, peoples of non-self-governing territories could also not be deprived of their human rights. However, hopes were belied when the ECHR, as the first binding post-War human rights instrument, was accompanied by a restrictive jurisdiction clause. The original Article …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Tele-Induction Of Buprenorphine For Opioid Use Disorder: Regulatory Flux And Public Confusion, Stacey A. Tovino

Fordham Law Review

No abstract provided.

China’S Strategic Calculus: A Comparative Analysis Of China’S Approaches Towards The Philippines And Vietnam In The South China Sea Dispute, Letian Wang

CMC Senior Theses

The South China Sea (SCS) dispute is a longstanding territorial conflict involving several surrounding states. In this paper, I analyze the differences in China’s policies towards the Philippines and Vietnam as China exerts its expansion into the SCS using relevant International Relations theories. The Philippines’ democratic values, alliance with the U.S., small-scale volume of trade with China, and active strategies against China all contradict China’s interests to be the regional hegemonic power. In contrast, Vietnam’s socialist regime, alliance with China, substantial trade with China, and passive strategies do not contradict China’s interests as much and even comply with them. Hence, …

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 …