Agency Commons^™

Reframing The Dei Case, Veronica Root Martinez

Seattle University Law Review

Corporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink …

Women In Shareholder Activism, Sarah C. Haan

Seattle University Law Review

Even a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with …

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

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 …

Voice Shoppers: From Information Gaps To Choice Gaps In Consumer Markets, Noga Blickstein Shchory, Michal S. Gal

Brooklyn Law Review

Recent years have seen exponential growth in the use of voice shoppers – artificial intelligence–based algorithms installed on digital voice assistants, such as Alexa and Google Assistant, that buy products based on verbal requests received from consumers. This game-changing switch to semi-automated shopping is shaking up markets by reshaping consumer–supplier relationships, as well as the business models of suppliers and search services. Voice shoppers benefit consumers by offering speedier and more sophisticated transactions while reducing search and transaction costs. At the same time, consumers’ voluntary delegation of their search powers and product selection creates what we call a “choice gap,” …

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

Protecting The ‘Unwanted’: How And Why We Should Defend Former Gang Members In Their Pursuit Of Asylum, Anjani P. Shah

Journal of Law and Policy

This Note discusses the flaws in the tripartite analysis to determine whether an asylum seeker satisfies the protected ground of “membership in a ‘particular social group’” (“PSG”). An applicant seeking a PSG determination must prove: (1) “immutability,” (2) “social distinction,” and (3) “particularity.” This Note argues that when PSG asylum claims are denied and appealed to the Board of Immigration Appeals (“BIA”), the BIA has incoherently tangled what is actually required in order to compel an affirmative PSG determination. One group of asylum seekers that has been significantly disadvantaged by this tripartite test is former gang members. This Note argues …

Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla

Journal of Law and Policy

This article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to …

West Virginia V. Epa, Amanda Spear, Amanda Spear

Public Land & Resources Law Review

The EPA created the Clean Power Plan in an effort to reduce the amount of greenhouse gas emissions generated by coal-fired power plants. The EPA determined that the Best System of Emission Reduction for existing coal-fired power plants included generation shifting methods, meaning a shift from coal to cleaner sources. The Supreme Court held, under the major questions doctrine, that Congress had not intended for the EPA to use generation shifting methods for the Best System of Emission Reduction and that the EPA had exceeded its authority in doing so. This note will explore how the decision may impact administrative …

Cumulative Impact Analysis In Nepa Climate Assessments, Fred Mauhs

Pace Environmental Law Review

This article argues that CI analysis is a critical tool for addressing global warming. This is because the largest anthropogenic sources of greenhouse gas (“GHG”) emissions in the U.S. each contributes a vanishingly small portion of global GHG emissions, which alone cannot rise to NEPA’s threshold of “significance” requiring a “detailed statement…on the environmental impact of the proposed action,”i.e., an environmental impact statement (EIS). Yet there is no pollution today in greater need of assessment and understanding than GHG emissions, given the urgency of the impending catastrophe that global warming could mean for our planet.

Pre-Merits Vacatur: An Efficient, Equitable, And Environmentally Sound Remedy, Stuart Gillespie

Pace Environmental Law Review

Federal agencies are increasingly requesting voluntary remands of challenged rules, thereby circumventing judicial review, and avoiding ever having to defend the merits of those rules. Courts routinely grant these extraordinary requests, often under the guise of saving judicial resources and giving agencies a second chance to reconsider. But voluntary remands come at a steep cost, particularly in the arena of environmental litigation. There, voluntary remands not only deprive litigants of their day in court, but can also subject them (and the broader public) to unlawful and inadequate rules that are causing serious environmental harm.

Courts have long guarded against the …

Franco I Loved: Reconciling The Two Halves Of The Nation’S Only Government-Funded Public Defender Program For Immigrants, Amelia Wilson

Washington Law Review Online

Detained noncitizens experiencing serious intellectual and mental health disabilities are among the most vulnerable immigrant populations in the United States. The Executive Office for Immigration Review’s (EOIR) creation of the National Qualified Representative Program (NQRP) following a class action lawsuit was an important step in finally bringing meaningful protections to this population. The EOIR pledged to ensure government-paid counsel for those facing removal who had been adjudicated “incompetent” by an immigration judge, as well as other protections for those who had been identified as having a “serious mental disorder” but who had not yet been found incompetent. The NQRP is …

Putting Labor’S Capital To Work For Labor: Restoring A Worker-Centric Vision Of Fiduciary Duty, David H. Webber

Faculty Scholarship

This report has two goals: first, to illustrate how the legal concept of fiduciary duty, designed to protect worker retirement funds, has been captured and distorted in ways that harm workers. Second, to propose means of restoring fiduciary duty to its proper purpose. The state-level fiduciary duties addressed in this report govern the investment of up to $10 trillion in assets and directly shape the retirements of 26 million working-class Americans. They are also just about the only source of worker voice in capital markets and corporate boardrooms. That is why a range of powerful business lobbies have distorted the …

The Humanities Strike Back: (E)Esg And Justice Strine Challenge Gamer Shareholder Primacy, David H. Webber

Faculty Scholarship

Leo E. Strine, Jr. is closing in on Blair and Stout for the undisputed title of all-time top-scoring stakeholderist.³ I don't intend to squander this opportunity to roast and toast him by weighing the pros and cons of basketscoring primacy. Instead, my aim is to surface an overlooked argument in the debate over shareholder primacy and stakeholderism, the case for which has been recently reinvigorated by Strine's work. My argument is this: one underappreciated aspect of shareholder primacy's appeal is that it creates a competition with a single endpoint, basically a game, and that the exhilarating tournament that results, …

Advising 101 For The Growing Field Of Social Media Influencers, Stasia Skalbania

Washington Law Review

The Federal Trade Commission (FTC) protects consumers from unfair and deceptive business practices. In 2019, the FTC released the “Disclosures 101 for Social Media Influencers Guide” (herein referred to as the “2019 Influencer Guide”). The 2019 Influencer Guide outlines advertisers’ and endorsers’ specific responsibilities relating to the advertising and marketing of products on social media platforms. Despite the extensive information provided within the 2019 Influencer Guide, there is still great confusion regarding endorsement disclosure requirements, and many brands and influencers are not in compliance with FTC recommendations. This Comment provides guidance to brands and social media influencers on how to …

All Of The Products, None Of The Liability: Examining The Supreme Court Of Ohio's Decision In Stiner V. Amazon.Com, Inc., Danny O'Connor

University of Cincinnati Law Review

No abstract provided.