Courts Commons^™

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Faculty Scholarship

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …

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their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary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 …

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Cardozo Journal of Conflict Resolution

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

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 …

Safe Harboring Sloppiness: The Scope Of, And Available Remedies Under, Sections 363(M) And 364(E), Vishal Patel

Emory Bankruptcy Developments Journal

No abstract provided.

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Faculty Articles

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

Faculty Articles

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women's Health Organization, the Supreme Court's 2022 decision that overruled Roe v. Wade's constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that …

Shades Of Justice: Exploring Colorism In The Hispanic Community And Its Legal Battle For Equity, Christel A. Infante

Honors Undergraduate Theses

This thesis focuses on the racial disparity within the Hispanic and Latinx communities as injustices exist within the community and the workplace. Racial disparities in the United States have been a persistent and deeply rooted issue that has plagued the nation for centuries. Despite significant progress in civil rights and anti-discrimination legislation, disparities in areas such as education, employment, and criminal justice persist. Understanding the factors contributing to these disparities is essential for addressing systemic inequalities and fostering a more just society. The analysis of this thesis primarily focuses on the cases and ramifications of Hispanic persons within the workplace, …

The Joy Of The Fight: What Litigators Can Learn From The Martial Arts, Len Niehoff, Tim Lynch

Articles

You walk into a martial arts training studio (in Japanese styles, a dojo) and you scan the room. Everything going on here looks, well, unpleasant. In one corner, you observe a group of students performing kata, choreographed sequences of kicks, punches, and blocks that simulate the experience of fighting multiple opponents. Sweat pours off them. In another corner, you see two students engaged in sparring exercises, or kumite. The sharp, smacking noise of one student striking the protective pads worn by another carries across the room. In a third corner, you notice students doing push-ups, working their muscles until their …

One Size Does Fit All: A Quasi-Federal Solution To The Euro-Centric Structural Shortcomings Of The Icc, Anivesh Bharadwaj

Cardozo International & Comparative Law Review

The article critiques the International Criminal Court's (ICC) centralized structure in The Hague, arguing that it undermines transparency, accessibility, and legitimacy, particularly for victims and witnesses in remote regions. The author proposes a "quasi-federal" framework to decentralize the Court, enabling regional proceedings while maintaining a central Appeals Chamber and Presidency. This restructuring aims to address structural flaws, enhance deterrence, and improve justice delivery by bringing proceedings closer to affected communities.

The Vanishing Appeal?, Stefanie A. Lindquist, Kirk Randazzo

Scholarship@WashULaw

Appellate filings in the United States Courts of Appeals demonstrate a considerable decline since 2006, following an historical trend in increasing caseloads throughout the twentieth century and early parts of the twenty-first. This phenomenon deserves evaluation. In this Article, we demonstrate the trend using data from the Administrative Office of the U.S. Courts and advance a number of potential hypotheses that might assist in explaining the trend, including decreasing trial rates, unique case type and circuit variations, trends in pro se litigation, and political explanations. Ultimately, the trend in case filings in the federal appellate courts is likely the product …

Trademark Fair Use Is No Joke, Christine Haight Farley

Cardozo Arts & Entertainment Law Journal

The article critiques the Supreme Court's decision in Jack Daniel's Properties v. VIP Products, arguing that the Court missed an opportunity to clarify the relationship between trademark law and the First Amendment. While the Court acknowledged the importance of protecting parodies, it failed to develop a comprehensive framework for balancing trademark rights with free speech. Instead, it introduced a narrow rule that limits the application of the Rogers test, potentially undermining speech protections in trademark disputes. The article contends that the Court's reliance on the likelihood of confusion test is insufficient to address the broader First Amendment implications of …

Colonizing Queerness, Jeremiah A. Ho

All Faculty Scholarship

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Physician Decision Making Under Uncertainty In A Post-Dobbs America, Molly J. Walker Wilson, Michael S. Sinha

All Faculty Scholarship

Following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and a series of restrictive state laws post-Dobbs, physicians in many states now face difficult choices between evidence-based practice and criminal penalties. Previously, when deciding whether to provide abortion care, concern for the health of the patient was paramount. Now, fear of criminal penalties drives decision-making for physicians practicing in many areas of the country, including our home state: Missouri. For certain life-threatening complications, termination of pregnancy is warranted, but since Dobbs, physicians have been delaying these potentially lifesaving procedures for fear of criminal repercussions. Behavioral research on …