Military, War, and Peace Commons^™

Prejudice Standards In Washington’S Appellate Courts, Andrew B. Van Winkle

Seattle University Law Review

When an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Prosecution Of Russian Corporations For War Crimes In Ukraine, Milena Sterio, Michael J. Kelly, Federica D'Alessandra, Dmytro Koval, Lydia Korostelova

Law Faculty Articles and Essays

Russian corporate assets worth billions of dollars are frozen in western capitals pursuant to a robust sanctions regime imposed in the wake of Russia's illegal invasion of Ukraine in 2022. While frozen, those assets accrue interest. The costs of rebuilding Ukraine after the war are estimated to exceed $400 billion. This Article offers a legal framework to seize those assets through criminal prosecution of Russian corporations that were complicit in the commission of war crimes. By adapting the practice of securing international arbitration awards, which are regularly satisfied through attachment of assets by courts in foreign jurisdictions, the authors lay …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Sticker Shock: The Icj, Russia, And A $300 Billion Price Tag For War, Caitlyn Quinn

American University National Security Law Brief

Ukraine has experienced unprecedented devastation since Russia launched a full scale invasion into its Eastern territory in February 2022. Thousands have been killed, and billions of dollars of infrastructure has been damaged. As a result, over the past three years, the international community has been evaluating ways to hold Russia accountable and to help rebuild Ukraine upon the cessation of the war. Billions of dollars in Russian Central Bank assets have been frozen, and multiple states have proposed seizing Russia’s frozen assets to meet these objectives. However, outright asset seizure presents genuine legal concerns about foreign sovereign immunity and may …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Enhancing Fairness And Compassion In Military Disciplinary Proceedings, Rinat Kitai-Sangero

Cardozo International & Comparative Law Review

This Article critically assesses the disciplinary proceedings carried out by judicial officers within the military, shedding light on the absence of crucial procedural guarantees, such as the right to legal representation and an impartial judge. After comparing the Israeli disciplinary proceedings with the Summary Court-Martial system in the United States and considering arguments used to justify the lack of procedural guarantees, the Article emphasizes the emotional distress experienced by soldiers who feel powerless due to power imbalances with their commanders and the severity ofprison sentences they may face. While the Article primarily focuses on the Israeli army, its main arguments …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Property Rights In Space: Where Does The Law Stand Now?, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

1. Introduction: property rights in outer space?
2. Rights over immovable property and outer space – the discussion on Article II of the Outer Space Treaty
3. National developments contributing to an interpretation of Article II of the Outer Space Treaty
4. Concluding remarks

In discussing the issue of “property rights in outer space,” it should first be clarified that at a general level there might be three categories of property rights at issue.

First, there is the issue of “intellectual property rights,” the rights that individuals or other right-holders might enjoy when it comes to exclusively using, marketing and/or …

Privacy Shield 2.0—A New Trans-Atlantic Data Privacy Framework Between The European Union And The United States, Sara Gerke, Delaram Rezaeikhonakdar

Cardozo Law Review

This Article is the first to thoroughly examine the new adequacy decision for the Trans-Atlantic Data Privacy Framework (also known as “Privacy Shield 2.0”), including the relevant events and milestones ultimately leading to its adoption. The European Commission adopted the new Privacy Shield on July 10, 2023, to restore transatlantic data flows and commercial exchanges between the European Union and the United States. This Article first explores the holdings of the Court of Justice of the European Union in the groundbreaking cases Schrems I and Schrems II and elaborates on the reasons for the invalidation of the Safe Harbor Decision …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Adjudicating Algorithms: Accountability In Regulation Of Surveillance, Privacy, And Discrimination, Peter Margulies

Cardozo Law Review

The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are frequent features in this turn toward accountability. However, at least in the United States, accountability is still a set of …

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …

A New Right Is The Wrong Tactic: Bring Legal Actions Against States For Internet Shutdowns Instead Of Working Towards A Human Right To The Internet (Part 1), Jay Conrad

Seattle Journal of Technology, Environmental, & Innovation Law

A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 1) is the first of a two-part series dealing with an increasingly prevalent threat to human rights: State-sanctioned Internet shutdowns. Part 1 details the current tactics and impacts of Internet shutdowns and which human rights are most likely to be violated by or during a shutdown. Part 2 will address the deficiencies of advocating for Internet access to be a recognized human right as a means of combatting shutdowns. Despite the popularity of this …

Indo-Pacific Conflicts Will Be Reimagined In Outer Space Exploration, Michael Incorvaia

Seattle Journal of Technology, Environmental, & Innovation Law

This article will focus on the effects of international treaties and how they can be utilized to govern the future of outer space exploration. The discussion will include evaluating how modern changes in technology have created a need for updated outer space-specific treaties to ensure that outer space does not become a contentious zone between countries. This article will begin by exploring the developments in outer space that have created a new space race. Then, it will discuss the Indo-Pacific conflict and why the current multilateral treaty strategy that is used in the region will not be effective in outer …

Emergency Powers: Understanding The Benefits While Mitigating The Consequences, Savannah Valentine

University of Miami International and Comparative Law Review

This note compares the short-term benefits and long-term consequences of emergency powers using examples from several countries and offers solutions to mitigate those consequences. Historically, emergency powers were only granted in times of true crises. In those circumstances, emergency powers can serve an important purpose: to help the government run smoothly and efficiently. Unfortunately, permanent power grabs are now more common and the standard for what constitutes an emergency has weakened severely, often resulting in civil rights infringements. Possible solutions to this problem include understanding the negative effects of sunset clauses in emergency acts, increased awareness of manufactured emergencies, encouraging …