Supreme Court of the United States Commons^™

Brnovich: Extratextual Textualism, Maureen A. Edobor

Scholarly Articles

This Article provides a comprehensive analysis of Brnovich v. Democratic National Convention, which purports to create a new standard for Section 2 claims under the Voting Rights Act, by situating the critique in the ratifying-era history and original intentions of the VRA’s constitutional counterpart, the Fifteenth Amendment. Brnovich is necessarily examined through a historical and political framework, identifying throughlines from the Reconstruction Era original intentions for the Fifteenth Amendment, distilled from Congressional debates, the VRA’s initially expansive Supreme Court interpretation in South Carolina v. Katzenbach, and Congress’ Section 2 amendments in 1982, rebuking the Court’s attempts to erode the legal …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

Borderline Ambiguity: Major Questions And Immigration Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

The Innocence Standard: Supreme Court Nominees And Sexual Misconduct, Lisa Avalos

Connecticut Law Review

Should the United States Senate allow judicial nominees who have been credibly accused of sexual misconduct to be seated on the Supreme Court? How should we handle these allegations when they arise during the vetting process? Despite the importance of these questions, lawmakers have failed to address them.

The contentious Clarence Thomas hearings in 1991 featured testimony from Professor Anita Hill and did much to raise Americans’ awareness about the prevalence of sexual misconduct in the workplace. Although Professor Hill subsequently called for the Senate to implement a process for addressing future sexual misconduct allegations against Supreme Court nominees, her …

"Appropriate" Appropriations Challenges After Community Financial, Chad Squitieri

Scholarly Articles

The standard federal agency must come to Congress each year, hat in hand, and request another round of congressional funding. This annual appropriations process ensures that Congress maintains at least some influence over the vast array of rules and regulations that govern Americans' daily lives. Sure, Congress might have delegated broad authority to administrative agencies to develop national policy on Congress's behalf. But an agency reliant on annual appropriations is an agency with the financial incentive to exercise its delegated authority with an eye toward pleasing congressional appropriators. The annual appropriations process is therefore a sensible (even if insufficient) step …

Amicus Brief Of Children’S Rights Legal Scholars And Advocates As Amici Curiae In Support Of Neither Party: Trump V. Anderson, Catherine Smith, Jeremiah Chin, Philip L. Gregory, Mathew W. Dos Santos, Julia A. Olson

Scholarly Articles

Amici write, not to urge a particular merits outcome to the questions presented, but to advocate for a judicial review process that (1) is true to constitutional text and this Court’s precedent, (2) accounts for non-voting children and future generations who fall within the protections of the counter-majoritarian provisions of the Constitution, and (3) embraces the perpetuity principle over the political question doctrine.

The Federal Future Of Medication Abortion, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

A majority of Americans believe that there should be a right to abortion, at least in some cases. Yet a vocal and determined minority has its sights set on a complete ban on all abortions everywhere in the United States. In many states, these anti-abortion activists have achieved their goal through new laws and limitations enacted in the wake of the Supreme Court's 2022 decision in Dobbs. Anti-abortion advocates are also challenging the Food and Drug Administration's regulatory approval of mifepristone, one of the drugs used in medication abortion (also known as medical abortion). The FDA had initially approved mifepristone …

The Downstream Consequences Of Transunion Llc V. Ramirez: Why 5 U.S.C. § 2954 Plaintiffs Have Article Iii Standing Consistent With Lower Courts’ Interpretation Of Transunion, Erin Mccoy

American University Law Review

The Supreme Court, in TransUnion LLC v. Ramirez, created additional standing hurdles by requiring plaintiffs to identify a common law historic-analogue when alleging a statutory harm. In doing so, the Court arguably limited informational standing—a unique Article III standing theory whereby plaintiffs may establish an injury for failure to receive information—because informational injuries did not exist at common law.

This Comment asks whether informational standing survives in a post-TransUnion universe, using 5 U.S.C. § 2954 and lower courts’ interpretation of TransUnion for guidance. The statute, § 2954, comes to light in a string of litigation involving the potential illegality …

’It Is Time To End This Madness’: Why The Protect Illinois Communities Act Is Constitutional Under The Second Amendment, Kellie Kleitsch

Loyola University Chicago Law Journal

The United States is plagued by an epidemic of gun violence. In particular, mass public shootings, perpetrated by gunmen armed with assault weapons, have risen exponentially since the Supreme Court found that the Second Amendment protected an individual’s right to bear arms in 2008 and 2010. In an attempt to stem the rising tide of bloodshed, states have passed legislation banning assault weapons within their borders. After a horrific shooting at a local Fourth of July parade in 2022, Illinois became the ninth state to enact a such a ban. However, this ban immediately faced challenges under New York State …

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

Articles

Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

The Evolution Of Race-Based Admissions In American Higher Education, Chenglin Liu

Faculty Articles

This Article examines the Supreme Court’s evolving position on race-based admissions policies over the past 127 years. Between Plessy and Brown, universities used race-based policies to exclude black applicants from white universities. Brown shifted admissions policies from blocking black students to accepting them. As affirmative action gained momentum, universities escalated from merely accepting minority candidates to proactive recruitment by using quotas and lowering their admissions standards. The Court in Bakke set the ground rules for race-based admissions during that period. In 2003, Grutter upheld the university’s pursuit for a “critical mass” of minority students in its entering class. Two …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

Judicial Preferences And Aggrandizement Effects, Jason Marisam

Faculty Scholarship

Scholars increasingly portray the Supreme Court as power hungry and self-aggrandizing. This aggrandizement literature, though, lacks a robust causal theory. This essay argues that judicial aggrandizement is not the product of a power-maximizing agenda but a function of judicial preferences and legal background conditions. Aggrandizement occurs in cases where legal background conditions do not align with judicial policy preferences and the justices assert power to create their preferred policy outcomes. This theory has significant prescriptive and normative implications. For example, counterintuitively, this essay shows that more judicial aggrandizement could be a sign of a healthier institution under some conditions.

Anti-Liberal Rights Retrenchment As A Threat To The Rule Of Law, Paul Gowder

Emory Law Journal

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the half-century old constitutional right to reproductive choice, is only the most prominent example of a global series of attacks on rights of personal, sexual, and family autonomy. The attacks on LGBTQ+ rights by the Christian nationalist governments of Hungary and Poland are another important example. A cadre of anti-liberal scholars and public intellectuals such as Patrick Deneen, Sohrab Ahmari, and Adrian Vermeule serve as the intelligentsia within this global reactionary movement, advocating for the direct importation of far-right values into the law of western states …

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.

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 …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

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 Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …