Jurisprudence Commons^™

Addressing The Root Of Housing Insecurity: Washington Should Divest From “Crime-Free” Housing Programs, Sarah Cerdena

Seattle University Law Review

Crime-Free Rental Housing Properties (CFRHPs) have proven to be an ineffective and inequitable approach to public safety. Often, tenants in these properties are evicted—at times, extrajudicially—as a result of conduct that does not rise to violations of their lease provisions, much less criminal behavior. By placing extraordinary power in the hands of local law enforcement to carry out these ordinances, CFRHPs predictably pose significant harm to Black and Latinx communities, survivors of domestic violence, disabled tenants, and low-income tenants generally. Recently, the Washington State Supreme Court grappled with the tensions arising between CFRHPs and the enforcement of Washington landlord-tenant law. …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Esg Investing Breaches Erisa Fiduciary Duties? A Closer Look At Spence V. American Airlines, Inc., Eric Chin-Ru Chang

Seattle University Law Review

In Spence v. American Airlines, Inc., the U.S. District Court for the Northern District of Texas found that American Airlines breached its fiduciary duties due to BlackRock’s ESG investing practices. Contrary to some reports suggesting that the ruling prohibits ESG investing under ERISA, a closer look at the ruling shows that the court only targeted American Airlines’ failure to manage conflicts of interest appropriately, rather than the legality of ESG investing itself. In light of the intensifying ESG backlash in the United States, this Article cautions against further restrictive measures on ESG investing. Such measures would exacerbate the widening …

Mandating Fluoride: A Constitutional Exercise Of Police Power, Anita Jahangiri

Seattle University Law Review

This Note addresses the ongoing debate over fluoridation: the regulation of fluoride levels in public water systems. Extensive research indicates fluoridation, when regulated at the recommended concentration, is both safe and highly effective in preventing dental caries. Better known as cavities, dental caries is a preventable yet widespread health issue that disproportionately affects low-income populations. Reducing dental health disparities among economic classes is a pressing public health issue. Fluoridation is not merely a policy option, but a critical, proven tool to address such disparities and uphold the collective welfare of Washingtonians. This Note focuses on fluoridation as a public health …

Neurodiversity In The Courtroom: Expanding Jury Service Accessibility Beyond Physical Disability, Samantha L. Mabe

Seattle University Law Review

The Americans with Disabilities Act has required equal access to jury service for decades; however, efforts to accommodate jurors with disabilities have been slow to develop beyond some minor accommodations for physical disabilities. While neurodivergent people frequently struggle to navigate a world catered toward neurotypical people, jury service remains inaccessible for many neurodivergent people who need accommodations to attend trial and engage in jury deliberations. If courts and advocates do not consider how to develop accommodations to secure the service of neurodivergent jurors, they will miss out on the unique skillsets that neurodivergent people can bring to resolving disputes.

Disabled …

Brewbaker And The Undermining Of Criminal Antitrust Enforcement, Itiel J. Wainer

University of Miami Law Review

In United States v. Brewbaker, a Fourth Circuit panel overturned a criminal conviction under § 1 of the Sherman Act, holding that a bid-rigging conspiracy between direct competitors constituted a hybrid “dual distribution” arrangement subject to the rule of reason rather than per se illegality. The court’s rationale rested on the existence of a separate vertical relationship between the parties, even though that relationship served only as consideration for the horizontal agreement to rig bids.

This Comment argues that Brewbaker rests on three doctrinal errors: misclassifying established bid-rigging tactics as a “new” restraint simply because the payoff took a …

Adjudicating Atrocity: Reading Hitesh Verma V State Of Uttarakhand As A "Landmark" Case In The Judicial Discourse On Caste Violence, Tejaswi Chhatwal

Socio-Legal Review

This article critically examines the Supreme Court’s judgment in Hitesh Verma v State of Uttarakhand (2020) and argues for reading it as a “landmark trial” in the judicial undoing of reform—namely, the statutory changes introduced by the 2016 Amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Existing socio-legal scholarship on atrocity jurisprudence has shown that the judicial understanding of caste violence and doctrinally instituted evidentiary standards have historically operated to invisibilise caste from crime’s framework. As a result, most instances of caste-based discrimination and violence have not been named as offences of “atrocity” under the …

Arbitrary Detention Powers And Section 1 Of The Charter: Two Critical Blind Spots In Luamba, François Tanguay-Renaud

All Papers

In the 2022 case of Luamba c Procureur général du Québec, the Superior Court of Quebec held that a police power to conduct roving random stop of motorists for the purpose of checking for traffic offences infringed ss 9 and 15 of the Canadian Charter in ways that were not saved under s 1. This decision was upheld by the Court of Appeal (“QCCA”) and the Supreme Court (“SCC”) has now granted leave to appeal to the AG Quebec.

In this comment, I seek expose two blind spots in the s 1 analysis carried out by lower courts: (1) …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

What On Earth Is A Burden On Interstate Commerce?, Andrew Jordan

Northwestern University Law Review

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court …

Promising The First Amendment: (De)Regulating Speech In Higher Education, Max M. Schanzenbach, Kimberly A. Yuracko

Northwestern University Law Review

The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article …

Peculiarities Of Europeanisation Of State Aid Control In Ukraine During Martial Law, Bohdan Veselovskyi, Kseniia Smyrnova

Yearbook of Antitrust and Regulatory Studies

Ukraine's European integration necessitates the alignment of its state aid control framework with EU competition law. The full-scale invasion by Russia in 2022 significantly disrupted this alignment, prompting Ukraine to temporarily suspend standard state aid oversight procedures under martial law. In response, Ukraine has undertaken comprehensive legislative reforms, including the adoption of sector-specific state aid criteria, enhanced administrative accountability measures, and systematic inventorying of existing aid schemes. This article analyses these developments, demonstrating Ukraine's ongoing commitment to restore regulatory certainty, transparency, and competitive neutrality, despite wartime constraints. Judicial practices incorporating EU-derived standards, particularly the Altmark criteria, highlight Ukraine's substantial progress …

The Roberts Court Paradox, John C. P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? …

Emotionally Unstable: Addressing Emotional Distress As A Concrete Injury In Data Breach Cases Post-Transunion, Anna P. Cox

Fordham Law Review

Data breaches and data breach litigation are exponentially on the rise. Plaintiffs whose information is stolen in a data breach often claim emotional distress for fear of future harm the data breach may cause. However, plaintiffs who bring suit in federal court must show that they have suffered an injury in fact for purposes of Article III standing before a federal court will exercise jurisdiction. The U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez requires that plaintiffs who seek money damages under a theory of risk of future harm show that they have suffered a present concrete injury to …

Is Your Data Good, Bad, Or Neutral?: Redefining Concreteness For Data Breach Harms, Jeeyoon Lim

Fordham Law Review

In recent years, the Supreme Court has tightened federal court standing requirements for intangible harms, including statutory harms. In TransUnion LLC v. Ramirez, the Court held that a mere statutory violation, absent a common-law analogue, is not sufficiently concrete to grant standing. The Court did not provide clear guidance as to how stringent the common-law analogue analysis must be, other than that it does not require an “exact duplicate.” Because of the ever-evolving nature of digital data, data breach victims attempting to enforce their statutory right to privacy in federal court have struggled to rely on tradition and history …

The Future Of Virtual Proceedings In The Federal Courts, Jeremy Fogel, Mary S. Hoopes

Indiana Law Journal

The federal courts are notoriously hesitant to modify their procedures and policies. Much of this “small c” conservatism is driven by a concern that their rules be “trans-substantive” and suited to a wide range of circumstances. For years, they stubbornly resisted allowing remote proceedings and similar uses of technology in the courtroom because of concerns that permitting them could affect the quality of lawyering and decision-making, compromise the safety of jurors and witnesses, and diminish the public’s perception of the courts. The COVID-19 pandemic abruptly changed this, forcing judges to alter radically the way they conducted proceedings.

Nearly five years …

The Siren Song Of Territoriality, Robin J. Effron, Alan M. Trammell

Indiana Law Journal

Territoriality—the theory that a state’s physical borders determine its power and sovereignty—boasts a long, venerable history. For centuries, it served as the dominant political theory for myriad ideas. It defined a wide range of doctrines, including personal jurisdiction, choice of law, and prescriptive jurisdiction. By the middle of the twentieth century, though, this rigid territoriality no longer described or responded to the challenges of a society that had grown increasingly mobile and interconnected. Courts replaced inflexible territorial theories with more functional theories rooted in fairness and state regulatory interests.

In recent years, territoriality has seen a curious resurgence. The Supreme …

Rethinking Courtroom Presence In The Virtual Era, Jenia Iontcheva Turner

Indiana Law Journal

Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining …

Assessing Market Efficiency In Corporate And Securities Litigation, Charles Korsmo, Minor Myers

Indiana Law Journal

In recent decades, courts have increasingly looked to trading prices as evidence—often conclusive evidence—in high-stakes corporate law disputes over a company’s fair value. This development has been especially dramatic, and consequential, in Delaware. Where a stock trades in an efficient market, the logic goes, the prevailing trading price can be used to resolve any disputed issue of valuation. But this expedient comes with an unavoidable question: When is a market “sufficiently efficient” for a court to rely on it as a measure of value?

 Federal courts have long experience evaluating the relative efficiency of trading markets in the context of …

Traditional And Computational Canons, Eric H. Martinez

Faculty Scholarship

As part of the rise of modern textualism, dictionaries and linguistic canons have become a ubiquitous part of legal interpretation. One longstanding question is whether judges citing these tools sincerely attempt to follow the meaning of a text, or if their invocation is merely window-dressing for a preferred outcome. The practical significance of this question extends across all major doctrinal areas, and with the Supreme Court’s overturning of Chevron deference, its importance is only to grow, as courts are now instructed to use every tool at their disposal to resolve ambiguity when interpreting a law. This Article is the first …