Legal History Commons^™

Whose Burden Is It Anyway? A Historical Resolution To Burden Allocation Under Federal Rule Of Civil Procedure 12(B)(3), Curtis Valencia

Northwestern University Law Review

Today, venue is generally treated as secondary to jurisdiction: statutory, waivable, and concerned with where litigation should proceed, rather than whether it should proceed at all. Yet the courts of appeals remain split over a basic question of federal venue procedure: who bears the burden of proof when a defendant moves to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3)? Though seemingly technical, in practice, burden allocation can determine whether a suit survives.

This Note offers the first historically grounded approach to resolving Rule 12(b)(3)’s burden allocation problem and argues that the circuit majority approach rests on …

Originalism's General-Law Turn, Nina Varsava, Bill Watson

Northwestern University Law Review

Originalists are increasingly turning to a general-law theory of constitutional rights. Under this theory, constitutional enactment declared but did not create constitutional rights. The content of those rights was, and remains, a question of general law—a species of common law, regularly employed at the Founding, that transcends jurisdictional boundaries. This preoccupation with general law has precipitated a wave of scholarship developing general-law accounts of various constitutional rights. Yet the nature of general law itself remains poorly understood.

This Article offers a theory of general law. Using philosophical methods to reexamine early American cases and recent work in legal history, the …

Arbitration In Name Only, Myriam Gilles

Northwestern University Law Review

Modern arbitration clauses hide a dirty secret: many don’t actually provide for genuine arbitration. These provisions masquerade as mutual commitments to fair and efficient private dispute resolution but, in truth, are mere imitations of genuine arbitration provisions. Some reserve for the drafter the power to amend or terminate the clause at will without notice or consent; others design the arbitration process to ensure bias from the start; still others depart so radically from the bilateral, informal model blessed by the Supreme Court that they scarcely resemble arbitration at all. These arrangements are arbitration in name only, falling outside the Federal …

Fabricating The Crime Of Undocumented Presence, Eric S. Fish, Doug Keller

Fordham Law Review

In 2025, the Trump administration’s Office of Legal Counsel (OLC) declared that it is a federal crime simply to be an undocumented immigrant. Congress has enacted no such crime. Congress has made it a crime for an immigrant to enter the United States in a manner that “eludes examination or inspection.” For nearly 100 years, this “elude” offense has been understood to occur only at the moment an immigrant enters the country. But the Trump administration’s OLC has reinterpreted this crime as a continuing offense. Under this new reading, an immigrant who entered unlawfully eludes examination until the moment of …

The Alien Enemies Act Of 1798, Andrew Kent

Fordham Law Review

For the first time since World War II—and for the first time ever outside a formally declared war—an American president has invoked the Alien Enemies Act of 1798 to detain and deport noncitizens. Enacted during the Quasi-War with France, the Act’s operative language remains largely unchanged today. In March 2025, President Donald J. Trump proclaimed that members of the Venezuelan gang Tren de Aragua present in the United States are “alien enemies,” asserting that their activities, allegedly coordinated with President Nicolás Maduro’s government, constitute an “invasion” or “predatory incursion” within the meaning of the statute. Litigation challenging the invocation of …

Splitting The Baby: Determining The Causation Standard In Family And Medical Leave Act Retaliation Claims, Eliana C. Singer

Fordham Law Review

The Family and Medical Leave Act (FMLA) guarantees employees unpaid leave following certain qualifying events. The FMLA not only provides substantive rights but also prohibits retaliation against employees who exercise those rights. When employees face unlawful retaliation, they can bring retaliation claims against their employers. However, there is disagreement among courts as to how to evaluate these claims. More precisely, courts are split concerning whether employees must prove their use of leave was a but-for cause of retaliation, or merely that it was one of an employer’s mixed motives for retaliating. The U.S. Courts of Appeals for the Second and …

Masthead

Seattle University Law Review

No abstract provided.

Table Of Contents

Seattle University Law Review

No abstract provided.

Getting Money Out Of Politics By Putting Money Into Politics: A Few Modest Proposals To Reform Seattle’S Democracy Voucher Program, Decker O’Donnell

Seattle University Law Review

Seattle’s Democracy Voucher Program offers an unconventional response to the growing influence of money in American elections: rather than restricting political spending, it seeks to amplify the participation of ordinary voters by providing publicly funded vouchers that residents may assign to participating candidates. This Article examines the program’s development, operation, and constitutional foundation within the modern campaign-finance framework established by Buckley v. Valeo and subsequent Supreme Court decisions. It argues that democracy vouchers provide a constitutionally viable means of broadening participation in campaign financing while mitigating the influence of wealthy donors. The Article identifies two weaknesses in the current system: …

Who Decides The Dead? Interpreting Washington’S Disposition Of Remains Statute, Wyatt Young

Seattle University Law Review

Washington’s disposition-of-remains statute, RCW 68.50.160, is designed to honor a decedent’s expressed wishes regarding the control and disposition of their body after death. Yet recent litigation reveals a critical gap between the statute’s intent-centered design and its practical enforceability. In Larotonda v. Blackburn, a trial court acknowledged that irreparable harm would occur if a decedent’s burial wishes were ignored but nonetheless denied relief on the grounds that the individual designated to carry out those wishes lacked standing. The result was a legal paradox: a statute that recognizes decedent autonomy in theory but withholds any meaningful mechanism for its enforcement …

Legal Malpractice In Washington: Use Of The Rules Of Professional Conduct, Angelo Tadrous

Seattle University Law Review

Legal malpractice claims are difficult to prove. They are difficult to prove because many jurisdictions require that a plaintiff prove that, but for the lawyer’s misconduct, the client would have fared better. Thus, in a malpractice suit, a plaintiff must try a case within a case. Despite this difficulty, many jurisdictions prohibit the use of the Rules of Professional Conduct when litigating a malpractice case. Washington State is one of these jurisdictions. The Washington Supreme Court held in Hizey v. Carpenter that the Rules of Professional Conduct may not be referred to during trial. This Note argues that this prohibition …

Converting Buildings Is Hard: Why Seattle’S Municipal Government Should Streamline Commercial-To-Residential Conversions, Tyler M. King

Seattle University Law Review

The conversion of commercial buildings into housing is a promising solution to the growing housing crisis in many urban areas. However, despite its potential benefits, the process of repurposing commercial spaces is often stymied by complex zoning codes, high conversion costs, and bureaucratic hurdles. This Article argues that the local and state governments in Seattle should adopt more streamlined policies and offer greater incentives to developers to facilitate these conversions. By reforming zoning regulations and providing targeted financial support, municipalities can reduce the barriers to conversion and unlock the potential of underutilized commercial properties. This article examines the legal and …

Table Of Contents

Seattle University Law Review

Table of Contents

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Reimagining Legal Education: The Transformative Power Of Small-Group Instruction, Michael I. Meyerson

Seattle University Law Review

Legal education is failing its students. Those entering their first year of law school have greater anxiety and less developed reading and writing skills than ever before. The traditional large Socratic class, which was never the most effective teaching method, has become increasingly counterproductive.

This Article contends that small-group instruction provides the opportunity for superior teaching, especially for first-year law students. Recent scholarship in active learning, educational psychology, and students’ mental health demonstrates the limitations of the traditional large Socratic class experience. Building on that theoretical foundation and informed by sustained classroom experience, this Article argues that small-group pedagogy more …

Land Without Legacy: The Case For Market-Based Appraisals On Hawaiian Home Lands, Alexis C. Owens

Seattle University Law Review

The Hawaiian Homes Commission Act of 1920 (HHCA) was enacted to restore Native Hawaiians to ancestral lands and promote long term economic self-sufficiency. More than a century later, that promise remains unfulfilled. This Note argues that a central but overlooked barrier lies in the HHCA’s mandated use of the replacement cost appraisal method, which systematically undervalues homestead properties by excluding market forces. In one of the most expensive housing markets in the United States, this approach suppresses home equity, the primary means of intergenerational wealth building, and restricts beneficiaries’ access to credit and financial stability. By severing the connection between …

International Law’S Forgotten Refugees—Palestinian Refugees In Egypt

Seattle University Law Review

This Article examines the legal and humanitarian crisis facing Palestinian refugees who have fled to Egypt amidst the ongoing violence in Gaza. While escaping active conflict, these refugees face systemic barriers to employment and education, rendering their living conditions precarious and unsustainable. The unique legal status of Palestinian refugees stems from the fact that they have been excluded from the 1951 Refugee Convention and its 1967 Protocol, leaving them without any meaningful international protection. This exclusion is rooted in the political complexities of the Palestinian struggle for self-determination and reflects a fragmented legal framework that prioritizes limited humanitarian aid over …

Veiled Justice: Secularism And The Hijab Across Democracies, Mohamed ‘Arafa

Seattle University Law Review

For much of 2022, Iran was gripped by widespread protests led by women who openly challenged the regime’s authority, particularly its compulsory veiling laws, following the death of Mahsa Amini in police custody. Women around the globe came around and showed solidarity with the women in Iran. However, in non-Islamic countries and societies, one can still make out many prejudices and stereotyping connected to the question of whether and to what extent veiling is mandatory for women according to Shārīe’ā law. Is wearing the hijab a choice, or rather, an essential religious practice that religious Muslim women need to obey? …

Rewriting The Playbook: The X’S And O’S Of The House Settlement And The Future Of Student-Athletes’ Voice In Their Compensation, Matthew K.V. Glazer

Seattle University Law Review

Since the formation of the National Collegiate Athletic Association (NCAA) in the 1900s, collegiate athletes (student-athletes) have been prohibited from using their own name, image and likeness (NIL) for profit. But on July 1, 2021, the NCAA changed course and began allowing student-athletes to profit from their own NIL. In the past few years, U.S. college athletics have undergone significant changes, most notably introducing monetary compensation for student-athletes’ NIL. While these changes were long overdue and ultimately beneficial, they have significantly disrupted the landscape of college sports, giving rise to numerous challenges that some experts have compared to the “Wild …

Mr. Trump Goes To Washington Part Ii: A Review Of Richard Delgado's 2025, Kevin Johnson

Seattle University Law Review

Richard Delgado’s The Rodrigo Chronicles have captivated a generation of law students and legal scholars.  Mapping the terrain of race, racism, and Critical Race Theory (CRT), the skillful, and long-running narrative series stands as a testament to Delgado’s dedication to justice for all.

The Rodrigo Chronicles are simply one of Delgado’s many intellectual contributions and part of an unparalleled scholarly legacy.  As one of the founders of CRT, he produced a landmark body of scholarship –authoring the field's primary text,  making the argument for the regulation of hate speech,  forcefully challenging the Black/white binary of civil rights that long dominated …

Aggregation And The “Universal” Injunction, Portia Pedro, Adam N. Steinman

Faculty Scholarship

In this Essay, we begin with a brief summary of the CASA decision’s holding regarding the availability of “universal” injunctions. Part II discusses the relationship between remedies and judicial review and the important role that such injunctions play in that regard. Part III explores how class actions could serve as an alternative path for federal courts, after engaging in judicial review, to make their decisions meaningful by requiring officials to comply with the law and to cease illegal actions or policies. We also respond to several objections to the use of class actions in this context. The final Part addresses …

The Court Of Small Things, The Curse Of Legal Superstition: The Precipitous Decline Of Small Claims Court, Why It Matters, And What Can Be Done About It, Telia Mary U. Williams

Nevada Law Journal

This Article addresses the precipitous decline of small claims courts in the United States and argues that their erosion is more than administrative; it is a democratic and constitutional crisis. Small claims courts were once the laboratories of everyday justice, where ordinary citizens could access law without lawyers, ritual, or mystery. The seemingly minor disputes of the small claims court illuminate the democratic soul of American law. Yet, over recent decades, filings have declined dramatically, and the locus of power has shifted from the poor to repeat-player institutional actors. This is in part due to what I call, “legal superstition,” …

The Martha Wright-Reed Act: How The Fcc Took One Step Forward For Communication Equality For Deaf Individuals In Correctional Facilities And How It Could Be Expanded, Ashley Seebold

Seattle University Law Review

For decades, phone companies preyed on incarcerated individuals and their loved ones due to the lack of regulation of jail phone calls.2 In 2021, the average cost of a fifteen-minute jail phone call was about $3.3 In 2022, the average cost rose to $5.74, while some individuals faced an extreme charge of $24.82 for the same amount of time.4 In the early 2000s, consumer advocate and concerned grandmother Martha Wright-Reed called upon the Federal Communications Commission (FCC) to fix the imbalance so she could speak to her incarcerated grandson.5 Eventually, in 2023, the FCC answered her call to action and …

How The Dod Discourages Military Families From Seeking Mental Health Counseling, Christina Welch

Seattle University Law Review

The Department of Defense’s (DoD) administration of the Exceptional Family Member Program (EFMP) presents significant barriers to mental health care access for military spouses and children. This paper explores how the EFMP, though designed to support military families with special needs, inadvertently creates barriers to mental health treatment. Military family members often do not seek mental health treatment to avoid the program's mandatory enrollment requirements. Military family members often view enrollment in the program undesirable because enrollment can restrict the pool of potential future duty assignment locations that are available to service members.

The lack of comprehensive data collection by …

2025, Richard Delgado

Seattle University Law Review

"In a cutting and provocative social critique in one of the more extended Rodrigo Chronicles, Richard Delgado in 2025 employs skillful narrative—one of CRT’s many contributions to legal scholarship —to tell a gripping story of just how far the nation has descended into darkness with President Trump’s re-election. In Delgado’s vision, law professors—along with other political opponents of the President: immigrants, people of color, LGBTQ+ people, women, the underserved—have targets on their backs."

-excerpt from Kevin Johnson's review of 2025

The Preventative Care Gap: Completing The Aca’S Vision For Health, Abby Nagaich

Seattle University Law Review

This Note examines the preventive care mandate under the Affordable Care Act (ACA) and the legal, political, and practical challenges that threaten its effectiveness. While the ACA significantly expanded access to no-cost preventive services, gaps remain—particularly in behavioral health, obesity management, and equitable service delivery. Ongoing litigation, potential administrative rollbacks, and shifting political leadership further destabilize this critical component of public health policy.

This Note argues that for the ACA to fulfill its original promise—and for any health framework to succeed—preventive care must be redefined as a comprehensive, early intervention approach grounded in both systemic access and patient education. It …

Reorganizing The Administrative State: Executive Ambition And Legislative Constraint, Jordan Graber

Fordham Law Review

Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state.

Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of …

Le Rôle Du Conseil D’État Dans L’Élaboration Du Droit, Joseph Chaoul

Proche-Orient, Études juridiques

The centenary of the Lebanese Conseil d’Etat, established in 1924 on the French model, offers an opportunity to reflect on its role in the development of law. This institution, which embodies the dual jurisdictional system characteristic of legal systems inspired by French law, has a dual mission – advisory and judicial – making it a central actor in the creation of law. In its advisory function, it provides the government with guidance on the legality and administrative advisability of draft texts. Through its judicial function, the Conseil d’Etat contributes to the formation of administrative law through its case law. …

Winging It: Convergence, Convivencia, And Belonging Of Latina Lawyers, Verónica C. Gonzales

Fordham Law Review

No abstract provided.

Courts Of Indian Offenses, Courts Of Indian Resistance, Alexandra Fay

Michigan Law Review

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, were almost universally replaced by tribal courts in the twentieth century, and have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native …