Legal History Commons^™

What Is “The Nation’S History And Tradition?”: Using History To Redefine “Liberty” And Applying A New Deeply Rooted Test To Transgender Rights, Kaori Kawaguchi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” In Roe v. Wade, the Court considered a woman’s liberty right to decide whether to continue a pregnancy or have an abortion and recognized the constitutional validity of a liberty right to abortion as part of the right to privacy. In Roe, the Court concluded, “[o]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the guarantee of a right of personal privacy.” Liberty should be “left to …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

The Making Of Egyptian Cotton: An Alternative Narrative Between Empire And Global Capital, Dina I. Waked

FIU Law Review

Egyptian cotton has become a celebrated brand. Referring to cotton as “Egyptian” signals a certain quality, luxury, and durability. Egyptian cotton has, thus, become its own trademark, a signifier of value, and a symbol of national heritage. This image is carefully curated. It is now protected under a licensing scheme of branding and marketing that assures that fraudulently claimed “Egyptian cotton” does not benefit from the added value this geographic location ascribes to it. The Egyptian Cotton Association was thus created 2005 to license and accredit the brand. Part of the curation of the brand image is a historical narrative …

The Unitary Theorists' Appointments Clause Problems, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.

It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.

This …

The Rise And [?] Of Anti-Administrativism, Gary Lawson

BYU Law Review

Scholars have proclaimed the administrative state to be “Under Siege” or subject to a “Never-Ending Assault.” Was the election of President Donald Trump on November 5, 2024, the sixth, if not yet the seventh, day around the walls?

This seems an appropriate time to consider the present and future of opposition to the administrative state—something that has come to be dubbed “anti-administrativism.” The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this “anti-administrativism”? Without knowing the answer to that seemingly simple question, one cannot accurately …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Symbolic Justice: The Continued Limits Of International Criminal Justice Without A Permanent Prison System, Meg Penrose

Faculty Scholarship

Many people misremember Nuremberg, Tokyo, and the subsequent World War II tribunals. These seminal international tribunals gave the world convictions but largely failed to fully enforce the sentences imposed. Most people do not recall the mass clemency following the World War II tribunals. This Article seeks to fill a scholarly void by explaining why international criminal justice has never matured beyond Nuremberg and Tokyo. The modern ad hoc tribunals, as well as the permanent International Criminal Court (“ICC”), have failed to deliver lasting justice. Much like Nuremberg and Tokyo, the modern tribunals fixate on arrests and convictions and then seemingly …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Power, Tools, And Process: Some Reflections On Bankruptcy Minimalism, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In Unjust Debts: How Our Bankruptcy System Makes America More Unequal, Melissa Jacoby offers a brilliant and sweeping indictment of the way in which bankruptcy law is currently practiced in the United States. As she puts it, “This book is a story of falling out of love. With a law.” Like me, Professor Jacoby came of professional age, at the close of the first age of the Bankruptcy Code. Enacted in 1978, we both learned the statute in the mid-1990s, at a time when the transformative power of the 1978 Code was reaching its peak. On the business side, corporations …

Mississippi Redistricting And The Voting Rights Act: An Historical Supplement, Leslie H. Southwick

MC Law Review

No abstract provided.

Assembly-Line Public Defense, David S. Abrams, Priyanka Goonetilleke

Faculty Scholarship

Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This Article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from their initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of …

Competition, Comity, And Confusion: Reconciling The Ftaia’S Import Exclusion With Its Direct Effects Provision, Elliot Lam

Fordham Law Review

The debate surrounding the Sherman Act’s extraterritorial scope represents a tension between two competing objectives: protecting the U.S. economy from foreign anticompetitive conduct on one hand and respecting the sovereign authority of other nation-states on the other. Applying U.S. law abroad risks undermining sovereign authority by regulating foreign economies, though such regulation appears necessary in some cases to protect U.S. consumers.

Congress’s attempt to square these objectives through enacting the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) failed to settle the matter. The statute left courts with two new questions: how to distinguish “import” from “nonimport” commerce, and how …

Living Property, Joseph William Singer

Seattle University Law Review

The Supreme Court has increasingly defined property rights that are per se exempt from regulation in the absence of compensation, most recently in Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023). The Court claims that it can identify property rights that are categorically protected from regulation by reference to history, tradition, and precedent. Yet this approach is oddly ahistorical; it is inconsistent with the fact that property law changed dramatically over U.S. history, as well as varying tremendously among the states. It is also inconsistent with the historical context of the Founding era. At that time, …

Table Of Contents

Seattle University Law Review

Table of Contents

The Roots Of Credit Inequality, Andrea Freeman

Seattle University Law Review

Debt oppression began before the United States became a country. Settlers enslaved Africans and Indigenous people, treating them as property that they could buy and sell for their economic and personal benefit. When enslavement became illegal, new economic systems and laws that included sharecropping, Black Codes, and Jim Crow kept Black people in servitude. Laws that prohibited enslaved people from owning property or selling goods to white people evolved into restrictions on Black people’s occupations and market participation, both formal and informal. When Black entrepreneurs overcame these obstacles and built wealth within Black business enclaves, white people enforced their racist …

“A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Seattle University Law Review

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Redefining Section 230 Immunity, Lucas Dini

Seattle University Law Review

Section 230 of the Communications Decency Act has provided broad immunity to online platforms for third-party content which was the foundation for the internet's growth. However, the rise in the use of artificial intelligence (AI) to produce algorithms to curate content to users of online services has blurred the line between being a passive host of third party content and active editorial control. This Note examines the legal, policy, and constitutional implications of applying Section 230 immunity to platforms that use AI to curate and promote third-party content. This analysis argues that algorithmic promotion of third-party content constitutes a platform's …

Overcrowding The System: Rethinking Juvenile Justice In Washington State, Mckenna White

Seattle University Law Review

The recent crisis at Green Hill School highlights the detrimental consequences of severe overcrowding in Washington State’s Juvenile Rehabilitation system—a problem exacerbated by the implementation of the JR to 25 legislation. This Note argues that the juvenile rehabilitation system, which is currently struggling to manage a wide age range of offenders, necessitates a fundamental rethinking of juvenile justice practices. By examining neurological research indicating continued brain development into the mid-twenties, along with the high prevalence of trauma among justice-involved youth, this Note proposes the creation of a dedicated third system of care within the Department of Children, Youth, and Families …

Addressing The Root Of Housing Insecurity: Washington Should Divest From “Crime-Free” Housing Programs, Sarah Cerdena

Seattle University Law Review

Crime-Free Rental Housing Properties (CFRHPs) have proven to be an ineffective and inequitable approach to public safety. Often, tenants in these properties are evicted—at times, extrajudicially—as a result of conduct that does not rise to violations of their lease provisions, much less criminal behavior. By placing extraordinary power in the hands of local law enforcement to carry out these ordinances, CFRHPs predictably pose significant harm to Black and Latinx communities, survivors of domestic violence, disabled tenants, and low-income tenants generally. Recently, the Washington State Supreme Court grappled with the tensions arising between CFRHPs and the enforcement of Washington landlord-tenant law. …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Esg Investing Breaches Erisa Fiduciary Duties? A Closer Look At Spence V. American Airlines, Inc., Eric Chin-Ru Chang

Seattle University Law Review

In Spence v. American Airlines, Inc., the U.S. District Court for the Northern District of Texas found that American Airlines breached its fiduciary duties due to BlackRock’s ESG investing practices. Contrary to some reports suggesting that the ruling prohibits ESG investing under ERISA, a closer look at the ruling shows that the court only targeted American Airlines’ failure to manage conflicts of interest appropriately, rather than the legality of ESG investing itself. In light of the intensifying ESG backlash in the United States, this Article cautions against further restrictive measures on ESG investing. Such measures would exacerbate the widening …

Mandating Fluoride: A Constitutional Exercise Of Police Power, Anita Jahangiri

Seattle University Law Review

This Note addresses the ongoing debate over fluoridation: the regulation of fluoride levels in public water systems. Extensive research indicates fluoridation, when regulated at the recommended concentration, is both safe and highly effective in preventing dental caries. Better known as cavities, dental caries is a preventable yet widespread health issue that disproportionately affects low-income populations. Reducing dental health disparities among economic classes is a pressing public health issue. Fluoridation is not merely a policy option, but a critical, proven tool to address such disparities and uphold the collective welfare of Washingtonians. This Note focuses on fluoridation as a public health …

Neurodiversity In The Courtroom: Expanding Jury Service Accessibility Beyond Physical Disability, Samantha L. Mabe

Seattle University Law Review

The Americans with Disabilities Act has required equal access to jury service for decades; however, efforts to accommodate jurors with disabilities have been slow to develop beyond some minor accommodations for physical disabilities. While neurodivergent people frequently struggle to navigate a world catered toward neurotypical people, jury service remains inaccessible for many neurodivergent people who need accommodations to attend trial and engage in jury deliberations. If courts and advocates do not consider how to develop accommodations to secure the service of neurodivergent jurors, they will miss out on the unique skillsets that neurodivergent people can bring to resolving disputes.

Disabled …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

The Roberts Court Paradox, John C. P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? …

Chapter 9 Bankruptcy: The Solution That Causes Problems, Peter C. Alexander

Brooklyn Journal of Corporate, Financial & Commercial Law

There is a little-known form of bankruptcy called a “Chapter 9,” reserved for insolvent cities, villages, and other municipalities. Occasionally, one reads about a city or a county that has filed for Chapter 9 relief, like Detroit, Michigan, or Orange County, California; however, it is very hard to file a Chapter 9 case, in part, because existing law requires a municipality to obtain permission from its home state before it can file for relief in the U.S. Bankruptcy Court. An additional constraint is that the only option municipalities have when seeking bankruptcy relief is to file a Chapter 9 because …

Existing Together From The Beginning: Freedom To Contract And Black Mutual Aid, Cara Mcclellan

Northwestern University Law Review

In a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive …

Volume 48 Masthead

Seattle University Law Review

Volume 48 Masthead

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …