Law and Society Commons^™

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 …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

From Downes To Dobbs: Why Stare Decisis Should Not Stop The Court From Overturning The Territorial Incorporation Doctrine, Gino Piccinini

Indiana Journal of Law and Social Equality

No abstract provided.

Seeking Safety And Losing The Self: Affirmative Action Bans And The Whitening Of Mexican American Identity, Bella Bennett

Indiana Journal of Law and Social Equality

No abstract provided.

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

Beyond A Boundary Of Systemic Anti-Black Racism In The Workplace In Canada, Adelle Blackett

Dalhousie Law Journal

In this lecture, I will, however, focus on one of the legacies of slavery, that is, the largely untold story of racial segregation in the world of work in Canada. We have come so effectively, and rightly, to focus on the effects of discrimination, that we may have inadvertently walked past the history. Reclaiming this history will comprise the first part of my talk.

The second part of my talk will reference the emergence of the duty of fair representation. I will seek to illustrate the weight of the erasure of anti-Black racism through this duty. In other words, far …

Fifty Years Of Protecting The Surviving Spouse: The Origin And Evolution Of Florida's Elective Share, Flavia Argamasilla

FIU Law Review

Currently, Florida’s elective share framework calculates the amount a surviving spouse is entitled to based on a decedent’s “elective estate.” Although this “elective estate” represents a significant improvement from previous law, where a decedent was free to completely disinherit a surviving spouse, issues still loom regarding the fairness of the framework. Granting a surviving spouse a fixed share of 30 percent of the decedent’s “elective estate” regardless of the length of the marriage can lead to inequitable outcomes. For instance, a surviving spouse who was married to the decedent for any period of time, one month even, can elect to …

The Hunger Games: Food As A Right, Not A Privilege, Camesha F. Little

FIU Law Review

Despite the United Nations' explicit declaration that all humans have a right to food, food insecurity and hunger remain persistent problems in the United States and around the globe. The dystopian landscapes depicted in novels such as The Hunger Games and Parable of the Sower—societies crippled by poverty, oppression, and pervasive starvation—resonate with sobering contemporary realities. This Article examines existing food laws, food rights, and the current protections safeguarding the United States food supply from a humanitarian perspective. Ultimately, this Article argues that the human right to food must expand to encompass a right to healthy or natural food, and …

Partisan Impact? Rejecting The Wisconsin Supreme Court’S New Remedial Redistricting Criterion, Anthony Sikorski

Marquette Law Review

In Clarke v. Wisconsin Elections Commission, the Wisconsin Supreme Court struck down the districting maps for the Wisconsin Legislature that the court had adopted at the close of the Johnson v. Wisconsin Elections Commission trilogy of cases. In so doing, while the Clarke majority based its decision on the maps containing noncontiguous districts, in violation of article IV, sections 4 and 5 of the Wisconsin Constitution, it not-so-subtly introduced a new criterion that would be used to judge remedial maps: “partisan impact.” This Comment critiques the partisan impact criterion through a textualist lens, concluding that the Wisconsin Constitution does …

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 …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

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 …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Special-Purpose Governments, Conor Clarke, Henry Hansmann

Scholarship@WashULaw

When one thinks of government, what comes to mind are familiar general-purpose entities like states, counties, and cities. But more than half of the 90,000 governments in the United States are strikingly different: They are “special-purpose” governments that do one thing, such as supply water, fight fire, or pick up the trash. These entities have expanded far more rapidly than any other form of government. Yet they remain understudied, and they present at least two puzzles. First, special-purpose governments are difficult to distinguish from entities that are typically regarded as business organizations—such as consumer cooperatives—and thus underscore the nebulous border …

In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue

Maine Law Review

Pursuant to the Due Process in Sterilization Act of 1982, Maine courts may hear petitions for sterilization of the mentally retarded. In In re Debra B., a mother petitioned to have her mentally retarded daughter sterilized. The Maine Supreme Judicial Court, sitting as the Law Court, vacated the order granting the petition. In a unanimous opinion, the court held that a finding of procreative capability is a sine qua non for determining whether sterilization is in an incompetent person's best interest. Through its holding, the court thereby extended the statute's clear and convincing standard of proof to a factor not …

Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim

Brooklyn Journal of Corporate, Financial & Commercial Law

Generative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright …

A Call For Statutory Reform: Online Marketplaces That Profit From Product Sales Should Be Held Strictly Liable As Sellers, Mark Anderson

Brooklyn Journal of Corporate, Financial & Commercial Law

Today, Americans purchase roughly 16% of all consumer goods through online marketplaces such as Amazon. While traditional brick-and-mortar retailers that sell defective products are strictly liable for harm caused by those products, online marketplace retailers, which serve analogous roles in defective product sales, can often evade liability entirely. Amazon, for instance, is immune from liability for product defects in more than 60% of sales conducted on its website in almost every state. This Note explains why online marketplaces that profit from defective product sales should be strictly liable for harm those products cause, and why courts often refuse to hold …

I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva

Brooklyn Journal of Corporate, Financial & Commercial Law

The effects of the COVID-19 pandemic were pervasive, sparing none from its impact. However, the restaurant industry bore an even greater change and a heavier burden than most. At the height of the pandemic, some 110,000 restaurants shut down. QR codes replaced paper menus, street parking transformed into outdoor dining sheds, and Friday night dinners at the “great spot on the corner” became takeout orders from the couch. Reopening was an unpredictable gamble for restaurant owners, fraught with tiered plans and inconsistent regulations on safe and unsafe dining practices. The desperate search for creative solutions to stay in business propelled …

Clemency For The Common Good: An Argument To Release Incarcerated Persons In The General Public Interest, Deborah M. Ahrens

Brooklyn Law Review

During the height of the COVID-19 pandemic, we were reminded of several terrible truths about the modern mass incarceration state: namely, that it collects vulnerable people, places them in conditions where they are unable to protect themselves against many forms of ordinary and extraordinary risks, incubates suffering amongst them, and then spreads that suffering to surrounding communities. The ghastly consequences of these realities during the COVID pandemic led to piecemeal efforts to release moderate numbers of incarcerated people for public policy reasons largely unrelated to the kinds of individualized factors that have traditionally motivated most acts of clemency. This Article …

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Northwestern University Law Review

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do …

Taxation's Limits, Luís C. Calderón Gómez

Northwestern University Law Review

Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that …

The Role Of The Attorney And The Attorney Client Relationship: The Keys To Improved Public Perception Of Attorneys And The Lexus, Jeanne Marie Zokovitch Paben

Tennessee Journal of Law and Policy

No abstract provided.

Coping With Confusion: A Unitary Procedure For Judicial Review Of The Referendum Process, Daniel L. Cummings

Maine Law Review

Although our state and national political systems are models of representative government, the Maine Constitution provides an important mechanism for direct democracy. Indeed, the people of Maine expressly reserve in the state constitution "power to propose laws and to enact or reject the same at the polls independent of the Legislature." Maine people propose such laws by means of the referendum process. Use of the referendum has become an increasingly widespread mechanism for addressing pervasive societal concerns such as land use regulation, environmental policy and public health issues. The prevalence of interest group politics undoubtedly influences Maine's electorate to use …

Withdrawal Of Life-Sustaining Treatment: Patients' Rights—Privacy Rights, Patricia Lerwick

Maine Law Review

As medical expertise and technologies improve, many patients who would otherwise die of their illnesses or injuries survive. For many of these patients and their families, the knowledge and therapies that save their lives are a blessing. Unfortunately for some, survival means not recovery, but rather a severely limited existence dependent on some form of life-sustaining treatment, such as a ventilator or feeding tube. For some of these patients, such an existence is not a blessing, but a curse, not a triumph over death, but rather a cruel prolonging of their dying. These patients, or their families, seek to have …

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.