Law and Philosophy Commons^™

Redefining Section 230 Immunity, Lucas Dini

Seattle University Law Review

Section 230 of the Communications Decency Act has provided broad immunity to online platforms for third-party content which was the foundation for the internet's growth. However, the rise in the use of artificial intelligence (AI) to produce algorithms to curate content to users of online services has blurred the line between being a passive host of third party content and active editorial control. This Note examines the legal, policy, and constitutional implications of applying Section 230 immunity to platforms that use AI to curate and promote third-party content. This analysis argues that algorithmic promotion of third-party content constitutes a platform's …

Overcrowding The System: Rethinking Juvenile Justice In Washington State, Mckenna White

Seattle University Law Review

The recent crisis at Green Hill School highlights the detrimental consequences of severe overcrowding in Washington State’s Juvenile Rehabilitation system—a problem exacerbated by the implementation of the JR to 25 legislation. This Note argues that the juvenile rehabilitation system, which is currently struggling to manage a wide age range of offenders, necessitates a fundamental rethinking of juvenile justice practices. By examining neurological research indicating continued brain development into the mid-twenties, along with the high prevalence of trauma among justice-involved youth, this Note proposes the creation of a dedicated third system of care within the Department of Children, Youth, and Families …

“A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Seattle University Law Review

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

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 …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

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 …

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. …

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) …

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 …

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 …

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? …

Legal Realism, Legal Positivism, And Determinacy, Dan Priel

All Papers

It is a commonplace that the legal realists argued that law is deeply indeterminate. According to this familiar account, the legal realists insisted that legal materials don’t constrain judges, who are therefore free to decide cases in almost any way they want. An influential argument has argued that the only way to explain this view is by showing that the legal realists presupposed a legal positivist theory of law. This Essay offers a different understanding of the relationship between realism, positivism, and determinacy, challenging this interpretation of the realists as both historically false and as philosophically unwarranted. I provide many …

The Political Theories Of The Legal Realists, Dan Priel

All Papers

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively “quietist” implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political …

Reasoning From Injustice, Robert L. Tsai

Michigan Journal of Race and Law

In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave. A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice …

Organizing For Abolition In Ice Custody, Sarah R. Sherman-Stokes

Faculty Scholarship

The final Immigration and Customs Enforcement (“ICE”) detainees were released from the Irwin County Detention Center in early September 2021.² A court did not order the end of ICE detention at Irwin. A social movement, led by people detained at Irwin, had a pronounced impact on the epistemological landscape and changed both normative principles and public opinion.³ Those detained at Irwin organized and acted to create new understanding of law and protect their rights in ways that courts and legislatures could not. This Essay tells the story of that demosprudential project; a dialectic between legal elites and people …

Fichte’S Conception Of Law And Its Foundations, Mahmoud Saraya

Theses and Dissertations

The question concerning the true nature of law has frequently arisen throughout the history of philosophy, and many different answers have been given to it. This thesis examines Johann Gottlieb Fichte’s Foundations of Natural Right (1796–1797), which exemplifies an approach to understanding the nature of law by inquiring into its metaphysical foundations. Fichte provides a conception of law founded upon the possibility of the existence of an external world, individuality, and intersubjectivity. Law, as a moment of human self-consciousness, becomes a necessity, a condition of self-consciousness, and the ultimate foundation of human existence. Fichte’s theory shows the preconditions for establishing …

Constitutional Futurisms, Jeremiah Chin

Northwestern University Law Review

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …

Toward A Perpetual Practice Of Affirmative Action, Sheldon Bernard Lyke

Northwestern University Law Review

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited …

Infrastructure Equality, Deborah N. Archer, Yuvraj Joshi

Northwestern University Law Review

The United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should …

Tradition, Critque, And The Modern Moral Lingua Franca: A Lutheran Articulation Of Human Rights Language, Christian B. Dollar

Doctor of Philosophy Dissertation

The language of subjective, individual rights has become the primary way of speaking about the rights and wrongs of human life together. Since the end of World War II, one subset of this language—that of human rights—has achieved a global influence. The various Christian traditions of the west have, in large part, adopted this language of human rights to articulate and supplement their assorted social teachings. Yet, the adoption of human rights language has been contested by a dedicated cadre of Roman Catholic and Protestant theologians concerned about the potentially anti-Christian implications inherent in the grammar of rights. Christian rights …