Law and Society Commons^™

The Gift Of Public Funds Bogeyman, Noah Purcell, Michelle Saperstein

Washington Law Review

Washington’s “gift of public funds” doctrine is frequently misunderstood in ways that impede innovative ideas aimed at remedying some of our state’s most intractable problems. This doctrine arises from article VIII, sections 5 and 7 of the Washington Constitution, which prohibit state and local governments from gifting assets or loaning credit. While the Washington State Supreme Court historically applied these provisions in restrictive and confusing ways, the Court’s modern jurisprudence recognizes that the doctrine is inapplicable to funding expended for any of the many “fundamental purposes” of government. Even where a government program does not fall under this broad category, …

Whose Truth Commission, Lehlohonolo January

Notre Dame Journal of International & Comparative Law

It is often said that the victor always dictates the narrative and thus dictates how history is represented. The end of Apartheid in South Africa wasn’t a result of an outright victorious defeat of the Apartheid State together with its institutions of coercion but rather came about as a result of a culmination of a series of events. If this adage holds true, then why is it that the narrative seems to paint a picture of a victor’s perspective? This assertion is not made lightly but is no less reflective of how the facts seem to portray themselves in that …

The Future Is In Their Care: Justice And The Washington Constitution, Steven González

Washington Law Review

No abstract provided.

The Real Impact Of General Deterrence: Empirical Insights From The Robbery Data Of Three American Cities, Andrew W. Eichner

Catholic University Law Review

General deterrence theory relies on the critical assumption that prospective offenders will be deterred from committing crimes when they are aware of the apprehension and punishment of others. This idea has been reiterated across thousands of years of Western political thought and has significant implications in modern American criminal sentencing, though it has not been historically subjected to rigorous testing. The recent availability of voluminous crime data permits a deeper examination of the real impact of sentencings on crime trends and allows the opportunity for previously impossible analyses regarding the efficacy of general deterrence.

To examine whether there is evidence …

Pragmatics And Textualism, Lawrence B. Solum

Journal of Law and Policy

In theoretical linguistics the word “pragmatics” refers to the roles of context and communicative intentions in the production of meaning. Those roles include contextual disambiguation and the communication of implicit content via what is called “pragmatic enrichment.” Textualism is sometimes characterized as the view that the meaning of statutory texts should not take context into account, but that characterization is incorrect. Not only do self-identified textualists explicitly maintain that context should be considered when interpreting statutes—all good textualists must do so. Absent consideration of context, the meaning of statutory texts would be pervasively ambiguous, sparse, and incomplete. Good textualism requires …

Shaping A More Equitable Election System: A Canadian Approach To Solving The Voting Rights Crisis In America, Michelle Gutowski

Journal of Law and Policy

In 1965, the Voting Rights Act was passed, ushering in a new era of voting freedom. The Act brought an end to many of the overtly discriminatory practices that had persisted for nearly two centuries. Over time, however, states began to introduce more subtle and complex voting regulations that gradually undermined the gains achieved through the civil rights movement. In 2021, the Supreme Court dismantled an essential safeguard for voters, significantly weakening the protections the Act once guaranteed. This erosion of protections is largely attributable to a single doctrinal standard within the Act, known as the totality of the circumstances …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

The Rise And Fall Of The Contagious Diseases Acts: An Examination Of The Legislative Influences, Medical Discourse And Repeal Arguments, Elizabeth Henderson

All Theses

The Contagious Diseases Acts (CDA) were the most important legislative intervention concerning sexuality in the nineteenth century. The CDA was a public health measure passed to address the spread of venereal disease amongst the British Army and Navy, and targeted Britain's most vulnerable women – sex workers – because they were blamed for being the presumed cause and primary mode of spreading venereal disease. This resulted in the legalization of what critics of the CDA would call surgical assault, or instrumental rape, of working-class women suspected of being sex workers. Historians who study sexuality and sex work in Britain have …

Pragmatics And Textualism, Lawrence B. Solum

Faculty Scholarship

In theoretical linguistics the word “pragmatics” refers to the roles of context and communicative intentions in the production of meaning. Those roles include contextual disambiguation and the communication of implicit content via “pragmatic enrichment.” Textualism is sometimes characterized as the view that the meaning of statutory texts should not take context into account, but that characterization is misleading. Not only do self-identified textualists explicitly maintain that context should be considered when interpreting statutes—all good textualists must do so. Absent consideration of context, the meaning of statutory texts would be pervasively ambiguous, sparse, and incomplete. Good textualism requires pragmatics.

“Pragmatics and …

Codetermination’S Moment Of Truth: Overseas Workers, Jens Dammann

BYU Law Review

The idea that employees of large corporations should be entitled to representation on corporate boards, a concept known as codetermination, is gaining ground. Progressive politicians Elizabeth Warren and Bernie Sanders have proposed codetermination regimes that would allow employees to elect between 40% and 45% of board members. Moreover, an increasing number of corporate law scholars are embracing the idea of giving employees a voice in corporate governance.

However, anyone endorsing codetermination must confront a critical dilemma: whether to limit representation to U.S.-based employees or whether to extend it to overseas workers as well. The question’s practical importance is obvious given …

Hindsight Is 20/20: Epilepsy Is Not One-Size-Fits-All, Raika Kim

Northwestern University Law Review

For many, epilepsy is one of the first conditions that come to mind when thinking of a disability, and for good reason: over 50 million people in the world live with epilepsy. Yet misunderstandings about epilepsy have perpetuated social stigma surrounding the disability for centuries. Ableist beliefs led to the passage of laws in the 1900s condoning—and in some cases, requiring—sterilization of individuals with epilepsy and restriction of their right to marry. Even today, state driving laws, justified as promoting public safety, categorically prevent anyone diagnosed with epilepsy from driving unless they are seizure free for an arbitrary, nonuniform period …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Northwestern University Law Review

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

James Baldwin And What U.S. Governments Owe Every American, Randall K. Johnson

Faculty Works

This book review looks at the life, work and impact of James Baldwin, a famous writer and civil rights activist that was born one hundred (100) years ago. It does so, for one of the first times in the field of law, by examining Baldwin’s influence on the legal system. The book review carries out its work by identifying Baldwin’s impacts upon U.S. law: before, during and after his public service career. In the process, this book review describes how governments can build on Baldwin's writings and advocacy work.

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

Familial Fairness: Guaranteeing The Right To Counsel For Indigent Parents In Juvenile Dependency Proceedings, Jake Toth

Dickinson Law Review (2017-Present)

Fairness principles enumerated in the seminal case Gideon v. Wainwright stand for the proposition that fundamental fairness and due process require appointment of counsel for indigent litigants. However, this principle has been constrained to criminal contexts. Many other types of litigation are just as impactful as a criminal proceeding, including juvenile dependency proceedings. Nevertheless, indigent parents do not enjoy an unqualified representation right.

This Comment traces the history of the representation right and how it has been treated in a juvenile dependency context, beginning with Gideon itself and examining other cases such as Eldridge and Lassiter. It then examines …

Considering The Child’S Wishes—But How? Allowing Children To Speak In Their Custody Matters, Joshua Hanson

Dickinson Law Review (2017-Present)

In the United States, states universally may consider the child’s wishes when determining their custody placement. While their decision or preference is not binding for the judge, it allows the child meaningful participation in decisions that directly affect them. There are many ways courts can ensure a child’s voice is heard: through an interview with the judge, professional evaluations, child advocates, and even child-inclusive mediation. Yet state laws give judges broad discretion when determining how to weigh the child’s wishes.

This discretion will inevitably leave some children behind without having their voices heard. Allowing children meaningful participation in their custody …