Legislation Commons^™

The Road To Bostock, John Towers Rice

FIU Law Review

No abstract provided.

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Antitrust Changeup: How A Single Antitrust Reform Could Be A Home Run For Minor League Baseball Players, Jeremy Ulm

Dickinson Law Review (2017-Present)

In 1890, Congress passed the Sherman Antitrust Act to protect competition in the marketplace. Federal antitrust law has developed to prevent businesses from exerting unfair power on their employees and customers. Specifically, the Sherman Act prevents competitors from reaching unreasonable agreements amongst themselves and from monopolizing markets. However, not all industries have these protections.

Historically, federal antitrust law has not governed the “Business of Baseball.” The Supreme Court had the opportunity to apply antitrust law to baseball in Federal Baseball Club, Incorporated v. National League of Professional Baseball Clubs; however, the Court held that the Business of Baseball was not …

Textualism’S Gaze, Matthew L.M. Fletcher

Michigan Journal of Race and Law

This Article attempts to address why textualism distorts the Supreme Court’s jurisprudence in Indian law. I start with describing textualism in federal public law. I focus on textualism as described by Justice Scalia, as well as Scalia’s justification for textualism and discussion about the role of the judiciary in interpreting texts. The Court is often subject to challenges to its legitimacy rooted in its role as legal interpreter that textualism is designed to combat.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Faculty Scholarship

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on …

South Dakota V. Wayfair: An Ill-Conceived Blow To The Free Flow Of Interstate Commerce, Revel Shinn Atkinson

Brooklyn Journal of Corporate, Financial & Commercial Law

For more than a century, brick-and-mortar retailers have been losing local customers—first with the rise of mail-order houses and then more acutely with the rapid growth of online retail. As a result, states have noticed a significant loss in sales tax revenue. While an equivalent amount of tax is typically still owed to the state in the form of a use tax, which is to be remitted to the state by the customer, because these taxes are not automatically collected at the time of the sale, customers have overwhelmingly elected not to pay them. In an effort to recover this …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …

Rodriguez, Tucker, And The Dangers Of Textualism, Reuven S. Avi-Yonah

Articles

The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge-made law, as evidenced by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the Internal Revenue Code is so complicated and lends itself to manipulation so that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory decision from 1935 involved just such a case: The literal application of the code resulted …

Communication Breakdown: How Courts Do - And Don't - Respond To Statutory Overrides, Deborah A. Widiss

Articles by Maurer Faculty

Earlier commentators, including many well-respected judges, have offered thoughtful suggestions for facilitating communication from courts to Congress about problems in statutes that Congress might want to address. My research explores the opposite question. How effective is communication from Congress back to courts? The answer is: Not very. Even when Congress enacts overrides, courts frequently continue to follow the prior judicial precedent. This is likely due more to information failure than willful disregard of controlling law. Nonetheless, a key aspect of the separation of powers is broken.

My research shows that when the Supreme Court overrules a prior decision, lower courts …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Does The Woman Suffrage Amendment Protect The Voting Rights Of Men?, Steve Kolbert

Seattle University Law Review

This Article—part of the Seattle University Law Review’s symposium on the centennial of the ratification of the Woman Suffrage Amendment—examines that open possibility. Concluding that the Nineteenth Amendment does protect men’s voting rights, this Article explores why and how that protection empowers Congress to address felon disenfranchisement and military voting. This Article also examines the advantages of using Nineteenth Amendment enforcement legislation compared to legislation enacted under other constitutional provisions.

Part I discusses the unique barriers to voting faced by voters with criminal convictions (Section I.A) and voters in the armed forces (Section I.B). This Part also explains how existing …

Attorney–Client Privilege In Bad Faith Insurance Claims: The Cedell Presumption And A Necessary National Resolution, Klien Hilliard

Seattle University Law Review

Attorney–client privilege is one of the most important aspects of our legal system. It is one of the oldest privileges in American law and is codified both at the national and state level. Applying to both individual persons and corporations, this expanded privilege covers a wide breadth of clients. However, this broad privilege can sometimes become blurred in relationships between the corporation and the individuals it serves. Specifically, insurance companies and those they cover have complex relationships, as the insurer possesses a quasi-fiduciary relationship in relation to the insured. This type of relationship requires that the insurer act in good …

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

The Major Questions Doctrine: How The Supreme Court’S Efforts To Rein In The Effects Of Chevron Have Failed To Meet Expectations, Andrew Howayeck

Roger Williams University Law Review

No abstract provided.

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

The Supreme Court And The 117th Congress, Andrew K. Jennings, Athul K. Acharya

Faculty Articles

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

Stationary Distribution Of Recombination On 4x4 Grid Graph As It Relates To Gerrymandering, Camryn Hollarsmith

Scripps Senior Theses

A gerrymandered political districting plan is used to benefit a group seeking to elect more of their own officials into office. This practice happens at the city, county and state level. A gerrymandered plan can be strategically designed based on partisanship, race, and other factors. Gerrymandering poses a contradiction to the idea of “one person, one vote” ruled by the United States Supreme Court case Reynolds v. Sims (1964) because it values one demographic’s votes more than another’s, thus creating an unfair advantage and compromising American democracy. To prevent the practice of gerrymandering, we must know how to detect a …

The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe

American University Law Review

The drafters of the Sherman Act originally designed Section 2 to impose sanctions on all monopolies and attempts to monopolize, regardless whether the firm had engaged in anticompetitive conduct. This conclusion emerges from the first ever textualist analysis of the language in the statute, a form of interpretation originally performed only by Justice Scalia but now increasingly used by the Supreme Court, including in its recent Bostock decision.

Following Scalia’s methodology, this Article analyzes contemporaneous dictionaries, legal treatises, and cases and demonstrates that when the Sherman Act was passed, the word “monopolize” simply meant that someone had acquired a monopoly. …

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Narrowly Tailoring The Covid-19 Response, Craig Konnoth

Publications

No abstract provided.