Military, War, and Peace Commons^™

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Cultural Conquest: Russia's Strategic Assault On Ukrainian Heritage As Both A Catalyst For And A Casualty Of Conflict, Brittan Harrell

American University International Law Review

Vladimir Putin and his government have disseminated fabricated claims about Ukraine’s history, language, and sovereignty as a rationalization for the 2022 invasion of Ukraine. Not only has the war resulted in grave human loss, but it has also caused widespread destruction throughout Ukraine. Nongovernmental organizations, foreign governments, academics, and Ukrainian citizens have collected robust evidence that Russian forces are purposefully targeting repositories of Ukrainian identity. The intentional destruction of this protected property is considered a war crime under the Rome Statute. Following the International Criminal Court’s (“ICC”) first successful prosecution for the destruction of protected property in 2016, there has …

Applicability Of Multilateral Environmental Agreements During International Armed Conflicts, Beatrice L. Hamilton

Loyola University Chicago Law Journal

Armed conflicts increasingly contribute to environmental damage and climate change, yet, as proven by recent and ongoing conflicts, the legal framework for the protection of the environment under the law of armed conflict (LOAC) fails to effectively mitigate these damages. With rising temperatures, already diminishing resources, the counter-acting of mitigation and adaptation efforts due to warfare and geo-political tensions on the rise, there is a strong case for considering the potential for enhancing the protection of the environment during armed conflicts.

This Article examines the terms of applicability of multilateral environmental agreements (MEAs) during international armed conflicts. The article draws …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Join The Military And Lose Your Kids: An Exploration Of The Adverse Effects Of Military Service In Child Custody Determinations, Cortland T. B. Boechler

Journal of Legislation

Servicemembers do not lose their fundamental rights when they join the military, but in practicality, many lose their parental rights the moment they enlist. Many servicemembers lose custody because judges often interpret service and duty relocations as incongruent to the best interest of the child. Presumably, many judges lack the understanding that military service brings familial stability. That being the case, Congress should add a provision in the Servicemembers Civil Relief Act requiring judges to consider all the benefits of military service in the "best interest of the child" analysis. This solution gives military parents a fighting chance to keep …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Denied By Dysfunctional Design: How The Dd-293 Application Form Thwarts Pro Se Veteran Applicants’ Discharge Upgrade Requests., Jessica Lynn Wherry

American University Law Review

Although most military service members receive an Honorable discharge at the completion of their service, thousands of former service members are discharged under less-than-honorable conditions, often for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD ), traumatic brain injury, sexual assault, or sexual harassment. Veterans with a less-than-honorable discharge are ineligible for most veterans benefits. The consequences can be dire for these former service members, including homelessness, unemployment, mental health conditions, criminal involvement, and suicide. These veterans can restore their access to benefits by appealing to a military discharge review board, seeking …

The Uniform Code Of Military Justice At 75: Reflections On The Transformation Of The American Military Justice System, David A. Schlueter

Faculty Articles

The Eighteenth George S. Prugh Lecture in Military Legal History by Professor David A. Schlueter: The Uniform Code of Military Justice at 75: Reflections on the Transformation of the American Military Justice System

Before Boone V. Lightner: The Lost History Of Pro-Veteran Canon, Eric Hughes

MC Law Review

The pro-veteran canon, a long-standing principle of statutory construction, has deep historical roots dating back to ancient times, as reflected in religious, legal, and historical texts. This principle, which favors a liberal interpretation of laws to benefit veterans, has evolved as societies sought to recognize and compensate the sacrifices of military service members. From the biblical era’s division of spoils to the Magna Carta’s contractual liberties, and through early English statutes and the American Revolution, this canon has shaped legal frameworks and influenced governance. Notably, U.S. jurisprudence, including foundational decisions like Marbury v. Madison, upheld the pro-veteran canon as …

Different Spanks For Different Ranks: A Critical Appraisal Of Character Evidence In Courts-Martial, Frank Rosenblatt

Journal Articles

This chapter explores character evidence in the U.S. military’s court-martial system. Courts-martial, unlike civilian criminal trials, permit defendants to present evidence of their own good character even when the character trait is not pertinent to the charged offenses. This derogation has been cheered by some as giving military defendants an extra tool to fight back in a system that may be stacked against them. But concerns about expansive use of character evidence soon became apparent: it tends to distort and confuse the issues in trial, and disproportionately benefits only high-status defendants. For all its good intentions, liberalized military character evidence …

A Comparative Law Analysis Of The Military Justice Systems Of Poland And The United States Of America, Frank Rosenblatt, Szymon Kulmaszewski

Journal Articles

Most authors agree that "military justice" does not have a clearly defined normative definition. Nevertheless, the term is anchored in the area of institutionalized activities of a military organization (armed forces) and for this reason it functions in the language of both legal science and military science. The text presents a synthetic outline of the history of military justice in Poland and in the U.S. Underlying the assumptions of the military justice system, such as the need to exercise jurisdiction over military persons, and the need to handle military cases within the framework of separated, common features can be discerned. …

Empirically Testing The "Unbiased Factfinder[S]", Chris Cox

Scholarly Works

No abstract provided.

Rationalizing Rape: How Military Appellate Courts Get To Yes, Chris Cox, Ashley Fancher

Scholarly Works

This study examines how military appellate courts rationalize overturning sexual assault convictions through qualitative analysis of opinions finding factual insufficiency. Drawing from cases between 2017-2020, concerning patterns are identified in judicial reasoning that reflect persistent rape myth acceptance despite decades of statutory reform. The analysis reveals that courts frequently question victim credibility based on delayed reporting, counterintuitive victim behavior, and continued contact with perpetrators - factors that trauma research has shown to be common among sexual assault survivors. Of particular concern is courts' treatment of incapacitation cases, where judges often acknowledge significant victim impairment yet find ways to question consent …

The Best Disinfectant: The Value Of Transparency In Information Operations, Major Ian W. Stamme

American University National Security Law Brief

America is in a state of persistent competition with nation-state adversaries, including Russia and China, which seek to subvert the post-WWII rules-based international order and undermine American legitimacy abroad. Some of this competition takes place through traditional statecraft and across each of the instruments of national power: diplomatic, informational, military, and economic. However, much of this competition also takes place in the gray zone, defined as a spectrum between the higher threshold of armed conflict and the lower threshold of ordinary statecraft. In other words, while all relations between nations involve degrees of leverage and relative advantage, gray zone conflict …

Public International Air Lawfare: China’S Use And Abuse Of The Skies., Major Emily K. Johnson

American University National Security Law Brief

Following World War II, China entered a years-long period of civil war between the Kuomintang government, which was then in power as the government of the Republic of China, and the Chinese Communist Party. After years of conflict, the Kuomintang was forced to retreat to the island of Taiwan in 1949, effectively and reluctantly ceding the Chinese mainland to the Chinese Communist Party. Despite its best efforts, the Kuomintang never regained control of mainland China in the ensuing years; however, it never dissolved and instead remained in place on Taiwan.

As a result, Taiwan, which lies a mere 80-100 miles …

Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion

Faculty Scholarship

In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall of Rome to consider how rage and misinformation traveling through today’s technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: “We have built networks for the delivery of information––the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage.”1 This Article carries the metaphor into a new context and considers what should …

The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.

Faculty Scholarship

Although the Myanmar coup occurred in February 2021, the world paid little attention mostly because the citizens were not white, not European, and the country did not hold huge oil reserves. Subsequent to the coup, Russia invaded Ukraine in 2022, and Israel responded to the Hamas attack on its territory by invading Gaza in 2023. Both of these events assured that the international community paid little to no attention to the plight of the people of Myanmar under the thumb of a repressive military dictatorship after having their freely elected democracy ripped away. If Ukraine is worthy of global attention, …

Civilian Harm And Military Legitimacy: Evidence From The Battle Of Mosul, Benjamin Krick, Jonathan Petkun, Mara R. Revkin

Faculty Scholarship

The legitimacy of armed forces in the eyes of civilians is increasingly recognized as crucial not only for battlefield effectiveness but also for conflict resolution and peace building. However, the concept of “military legitimacy” remains under-theorized and its determinants poorly understood. We argue that perceptions of military legitimacy are shaped by two key dimensions of warfare: just cause and just conduct. Leveraging naturally occurring variation during one of the deadliest urban battles in recent history—the multinational campaign to defeat the Islamic State in Mosul, Iraq—we evaluate our theory using a mixed-methods design that combines original survey data, satellite imagery, and …

Hierarchies Of Violence, Victimhood, And Remedy In The Pursuit Of Women's Rights After War, Marie Berry, Milli Lake, Sinduja Raja, Soraya Zarook

English Faculty Publications

Recent postwar recovery efforts have paved the way for reforms that advance women's participation in politics, inclusion in the economy, and access to justice. In this article, we show how a singular emphasis on gender reforms after war that are inattentive to other societal cleavages can leave various forms of marginalization in the shadows. Subnational interviews on the reverberations of gender reforms in five postwar countries expose three hierarchies that structure access to rights for war-affected communities. We reveal which violence is privileged, whose violence is privileged, and which responses are privileged from the perspectives of differently situated war-affected women, …

War Courts: Fdr, National Security, And The War On Terrorism, Harvey Gee

Dickinson Law Review (2017-Present)

No abstract provided.