Law and Race Commons^™

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Antisemitic Terrorism, J. Richard Broughton

Lewis & Clark Law Review

Recent surges in antisemitic activity—and antisemitic violence, in particular—have led increasingly to conversations about the connections between antisemitism and domestic terrorism. While the nexus between antisemitic violence and domestic terrorism has long been expressed in rhetorical terms, its connection in legal terms—notably, federal criminal law—has been more attenuated. This Article explores that connection and finds that existing federal criminal law requires rethinking: it is underinclusive and thus inadequate to fully capture and punish the threats posed by today’s domestic violent extremism, and particularly antisemitic violence. The Article surveys recent federal prosecution in cases involving actual or threatened antisemitic violence, and …

Strictly Intersectional Scrutiny: A Recommendation For Transforming The Epc To Highlight Queer Black Women, Kayla M. Richardson

Undergraduate Honors Theses

The purpose of this thesis is to explore the interpretation of the Equal Protection Clause by the Supreme Court of the United States (SCOTUS) and how this interpretation can become more intersectional for Black queer women. This question is explored within the scope of two theoretical frameworks: Derrick Bell’s theory of interest convergence and Kimberlé Crenshaw’s theory of intersectionality. This project examines whether any factors compel SCOTUS to be more intersectional in its approach to the Fourteenth Amendment. Simultaneously, this study also considers what social contexts make SCOTUS more likely to focus on the interests of the oppressor, a demographic …

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 …

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 …

Time To Abolish The Dea: Evaluating The Agency’S Failures And Calling For Community Investments, Ifetayo Harvey

Fordham Law Review

No abstract provided.

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe

Faculty Scholarship

We live in an age of predictive algorithms.¹ Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.² One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.³ The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.⁴ For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Whiteness As Contract In The Racial Superstate, Marissa Jackson Sow

Law Faculty Publications

Despite the United Nations’ (UN) ongoing commemoration of the International Decade for People of African Descent and direct calls from UN member states for the body to confront systemic racism in the United States, the United States has with the support of its allies—successfully blocked measures beyond those which gently encourage mere aspiration to racial equity. Moreover, notwithstanding formal guarantees of equal access to justice and accountability for human rights violations, people of African descent and majority Black member states are systematically constructed out of international policymaking authority and legal protections at the UN—leaving them vulnerable to aggression, exploitation, and …

Why I Will Not Stop Teaching Law Students To Think Critically About Race: The Attack On Teaching About The Role Of Race In Law, Leroy Pernell

Journal Publications

As someone who has been involved in legal education teaching for over 40 years and as someone who was drawn to legal education as an alternative to a career more directly devoted to litigation concerning racial justice, so that others might be encouraged to explore critically both what race has meant to our legal system and how we might collectively counter its negative influence, the “Stop W.O.K.E act” presents a real and present danger. Thus, in August of 2022 I agreed to be the lead named plaintiff in Pernell, et. al. v. Florida Board of Governors of the State University …

Curing Terry's Colorblindness, Ilan Friedmann-Grunstein

Publications

Scholars, policymakers, and advocates have long bemoaned the Supreme Court's colorblind Fourth Amendment jurisprudence. The Court has alternatively ignored or condoned racially discriminatory searches and seizures, allowing government agents to engage in widespread racial profiling. Proposed reforms have typically focused on doctrinal solutions that would limit police discretion or called for the reversal of Terry v. Ohio.

This Article provides a comprehensive doctrinal, regulatory, and legislative solution to racial discrimination in police investigations. It proposes a novel solution: adopting recent jury selection reforms aimed at preventing racism injury selection to combat racial profiling in searches and seizures. Several states, …

Overturning Race-Conscious Admissions: Analyzing The History Of Higher Education Affirmative Acton Legal Discourse And Preserving Whiteness, Hiba A. Qari

Graduate Theses, Dissertations, and Problem Reports (ETD)

Although researchers have investigated Affirmative Action, few have attempted to understand and explain the language mechanisms shaping public opinion and policy. The purpose of this study was to explore the historical context of higher education Affirmative Action legal discourse. This study employed Critical Discourse Analysis and Critical Race Theory to analyze how language and race, as social constructs, maintain White dominance in law and higher education. The thematic concepts included power, White normativity, and diversity rhetoric. This project explored the historical evolution of the U.S. Supreme Court’s decisions on Affirmative Action policy in higher education. The study also investigated the …

After Affirmative Action: Contextual Admissions And The Future Of African American Law School Enrollment, Nathan L. Bennett Fleming

Oklahoma Law Review

No abstract provided.

Skin In The Game Revisited, Eric K. Ward

Lewis & Clark Law Review

No abstract provided.

Using A "Moves To Innocence" Approach To Dissect And Debunk The Claim That Critical Race Theory Is Antisemitic, Diane Kemker

Lewis & Clark Law Review

In the United States, law and policy have most frequently reflected dominant white Christian majority interests. Critical Race Theory (CRT) offers powerful tools for understanding our history and situation, including that of American Jews, and how the social positions and interests of American Blacks and Jews, real and perceived, have intersected, sometimes aligning, sometimes diverging, and sometimes conflicting. And yet, among other charges leveled against it, Critical Race Theory is frequently accused of being antisemitic.

Intentionally or not, this charge delegitimizes and discredits CRT, and therefore advances the aims of all who oppose it for any reason, including white supremacists …

A License To Discriminate: The Risky Next Step Of Religious Charter Schools, Vania Blaiklock

Scholarly Articles

From 2017 to 2022, the Supreme Court strengthened its First Amendment Free Exercise jurisprudence by deciding that states can provide aid to religious educational institutions through general benefit programs. Six months after the Court’s most recent religious aid case, Carson v. Makin, Oklahoma’s Attorney General stated that he would no longer enforce the nonsectarian provision of the state’s public charter statute because it was unconstitutional under Carson and its progeny. That opinion initiated the application and 2023 approval of the first religious charter school, St. Isidore of Seville Catholic Virtual School by Oklahoma’s Virtual Schoolboard. Immediately, state litigation ensued, …

Racial Disparities In Plea Bargaining: An Examination Of Coercive Dynamics In The Negotiation Process, Naszya Iman Heidi Bradshaw

Scripps Senior Theses

This research addresses the enduring concerns about the ethical and legal intricacies of coercion in plea bargaining within the U.S. criminal justice system, with a focus on its correlation with racial disparities. This study acknowledges an existing research gap in comprehending the subtle dynamics of coercion and its differential impact on Black and Latin individuals. By employing the Cumulative Disadvantage Theory and Dual Processing Theory, the research aims to investigate the differential susceptibility to coercion during plea bargaining among individuals from Black and Latin communities compared to their white counterparts. Variables such as the severity of criminal charges, the quality …

Coercive Ideology, Tyler Rose Clemons

Faculty Publications

Current equal protection jurisprudence does not permit challenges to discriminatory government expression, no matter how blatant or extreme. This doctrine, which I label the discriminatory treatment requirement, is a manifestation of anticlassification, the prevailing equal protection framework since the mid-1970s. According to anticlassification, only suspect government classifications implicate the Equal Protection Clause. In this Article, I contend that discriminatory government expression violates the Clause because it contributes integrally to racial subordination. Through a process I call coercive ideology, discriminatory government expression serves as a veiled threat that manipulates individuals into performing public compliance with the dominant ideology. Like the script …

Lethal Immigration Enforcement, Abel Rodríguez

Faculty Publications

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …