Litigation Commons^™

Army Commander’S Role—The Judge, Jury, & Prosecutor For The Article 15, Anthony Godwin

Seattle University Law Review

Service members in the armed forces are bound by a different set of rules when compared to other U.S. citizens. Some of the normal safeguards and protections that civilians enjoy are much more restrictive for military service members, and this is generally for a good reason. Such restrictions are partly due to the complex demands and needs of the United States military. Congress and the President have entrusted military commanders with special powers that enable them to handle minor violations of law without needing to go through a full judicial proceeding. Non-judicial punishments (NJP), also known as Article 15s, are …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

White-Collar Courts, Merritt E. Mcalister

UF Law Faculty Publications

Article III courts are white-collar courts. They are, scholars have said, “special.” They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite—jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Trial Of Thomas More - Robert Bolt's A Man For All Seasons, Jonathan Van Patten

Faculty Publications

The path from Magna Carta to the United States Constitution and the Bill of Rights runs through the trial of Thomas More. Robert Bolt's magnificent portrayal of that trial in A Man for All Seasons provides an opportunity to learn and reflect on how a political trial can teach us about the meaning of justice. The search for universals must be rooted in the particulars. The particulars in this case will also resonate with modern audiences who seek to understand their own politics in times of crisis.

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Interpleader As A Vehicle For Challenging The Constitutionality Of Private Citizen Action Statutes, Delia Parker

Fordham Law Review

The rise of vigilante-esque statutes creates obstacles for litigants seeking to challenge a statute’s constitutionality. State legislatures in Texas and California enacted laws regulating constitutionally protected activity (abortion and firearm possession, respectively) through statutes enforced solely by private actors. The state legislatures cleverly crafted Texas S.B. 8, as well as other copycat statutes, as bounty hunter statutes to block litigants’ usual path to pre-enforcement adjudication—filing a claim against the state to enjoin its actors from enforcing the improper provisions.

The Texas and California state legislatures attempted to forbid constitutionally protected conduct by granting enforcement power to an infinite number of …

A Survey Of The Literature On Federal Appellate Practice And Procedure, Thomas E. Baker

FIU Law Review

This is a survey of the literature related to appellate practice and procedure before the United States Courts of Appeals for the benefit of lawyers and judges and scholars. It is reproduced with permission from THOMAS E. BAKER, A PRIMER ON THE JURISDICTION OF THE U.S. COURTS OF APPEALS (Fed. Jud. Ctr. 3d ed. 2023) available at: https://www.fjc.gov/content/379899/primer-jurisdiction-us-courts-appeals-third-edition). This origin explains the scattered references in the entries to “this Primer.”

The Realities Of Takings Litigation, Dave Owen

BYU Law Review

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States' …

Blocking Nature's Vulnerable Calls For Help: The Tenth Circuit Dials Into The Telecommunications Act's Federal Environmental Preemption Clause In Santa Fe Alliance V. City Of Santa Fe, Samantha Speiss

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Beyond Bristol-Myers : Personal Jurisdiction Over Class Actions, Adam N. Steinman

Faculty Scholarship

The Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution would permit multi-state or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a …

Reed V. Goertz: Brief Of Federal Courts Scholars As Amici Curiae In Support Of Petitioner, Leah Litman, Eve Brensike Primus

Appellate Briefs

This brief is filed on behalf of legal scholars who study federal jurisdiction, federal procedure, and constitutional law, and who have taught and written on the interplay between proceedings in state and federal courts.<\p>

The Court should hold that § 1983 claims challenging the constitutionality of state post-conviction DNA testing statutes do not accrue until the end of state-court litigation denying DNA testing. That is the only rule that comports with principles of federalism and comity, which favor sequencing federal litigation after related state proceedings. Unnecessary co-pendency of state and federal litigation invites unnecessary intrusions into state processes. If a …

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

The Party Respectfully Requests A Jury Trial On All Issues So Triable: What Issues Are Triable To A Jury And What Issues Should Be Triable To A Jury? A Comment On The Right To A Jury Trial, With A Focus On Civil Trials, And When The Right Exists, Michael Downing

Mercer Law Review

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” But what about civil prosecutions? What about prosecutions under state law, not federal? What does the universally expected “right to a jury trial” really mean or afford the parties to a trial?

Under federal law and the United States Constitution, by the time the Bill of Rights was drafted, the ideal of an accused’s right to a jury trial was already deeply rooted within …

The Best Of Both Worlds: Reconciling Tradition With Evolution Under The Ohio And Federal Right To A Civil Jury Trial, Jacob Hoback

University of Cincinnati Law Review

No abstract provided.

Endnotes

Sustainable Development Law & Policy

No abstract provided.

Climate Migration Beyond The Refugee Framework: Creating Bridges Between Human Rights And International Climate Law, Mara Elisa Andrade

Sustainable Development Law & Policy

No abstract provided.

Accounting For Climate Change In United States Regional Ocean Planning: Comparing The Obama And Trump National Ocean Policies To A Climate-Forward Approach, Taylor Goelz

Sustainable Development Law & Policy

No abstract provided.

Swallowing The Rule: Why Ferc’S “Immediate Need Exemption” Frustrates Competitive And Climate-Smart Electricity Sector Transmission Planning Under Order No. 1000, Philip Killeen

Sustainable Development Law & Policy

No abstract provided.

“At What Cost?’: The Future Of Securities Enforcement In Climate Change Litigation, Angela Washington

Sustainable Development Law & Policy

No abstract provided.

About Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Because our publication focuses on reconciling the tensions found within our ecosystem, it spans a broad range of environmental issues such as sustainable development; trade; renewable energy; environmental justice; air, water, and …