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Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...

Against Life Without Parole, Judith Lichtenberg

Washington University Jurisprudence Review

We have many good reasons to abolish life without parole sentences (LWOP, known in some countries as whole life sentences) and no good reasons not to. After reviewing the current state of LWOP sentences in the United States, I argue that the only rationale for punishment that can hope to justify them is retributivism. But even if retributivism is a sound principle, it in no way entails life without parole. One reason is that unless one believes, like Kant, that appropriate punishments must be carried out whatever the circumstances, we must acknowledge that other considerations are relevant to determining punishments ...

Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt

Washington University Jurisprudence Review

There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that ...

A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt

Washington University Jurisprudence Review

Utilitarianism provides the best analytic framework for “minimum contacts” analyses in multi-state mass tort litigation. Utilitarianism is a consequentialist ethical philosophy contending that one should act in a way that maximizes utility; that is, act in a way that maximizes pleasure and minimizes pain. This is often referred to as the “felicific calculus.”1 To maintain a civil lawsuit against a defendant, a court must have “personal jurisdiction” over that defendant, meaning that the defendant must have minimum contacts related to the suit such that maintenance of the suit does not offend traditional notions of fair play and substantial justice ...

Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes

Washington University Jurisprudence Review

A staple of the American version of democracy is civilian control of the military: we are uncomfortable with politicization of the Armed Forces, and military and other federal laws restrict the political expression of servicemembers (“SMs”) in the Armed Forces, whether they are active- duty members or National Guard or Reserves serving on active duty. These restrictions, while well-intentioned to prevent actual or apparent political partisanship or bias within the military, have the undesired effect of deterring SMs from otherwise healthy political expression. With the advent of the internet and proliferation of social media use, questions regarding SM status and ...

Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu

Washington University Jurisprudence Review

This Note will use a critical race theory lens to argue that most trainings on equal employment opportunity (“EEO”), diversity, or implicit bias operate as a restrictive remedy to Title VII race discrimination violations, and that incorporating an ethnic studies framework into these trainings can further an expansive view of antidiscrimination law. A restrictive view of antidiscrimination law treats discrimination as an individual instead of structural or societal wrong and looks to addressing future acts of discrimination instead of redressing past and present injustices. An expansive view of antidiscrimination law sees its objective as eradicating conditions of racial subordination. Ethnic ...

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship at Penn Law

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference ...

Immunity Incorporated: All The Injustice That Jeffrey Epstein Can Buy, Janice G. Raymond

Dignity: A Journal on Sexual Exploitation and Violence

No abstract provided.

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

Faculty Scholarship at Penn Law

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the ...

The Most Fundamental Right, Nicholas A. Robinson

Pace Law Faculty Publications

The Magna Carta and successors recognize a right to the environment as central to human existence. Along with associated rule of law and due process, 193 national charters recognize such a right — but not the U.S. Constitution. This right does lie latent in America’s state constitutions, however, and can also be read into the federal document as well. Meanwhile, recognition of environmental rights is expanding globally.

Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford

Faculty Publications

Administrative law in Canada, as in many other common law countries, centres around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose.

This chapter, which has been revised and updated for the third edition of this leading text on Canadian ...

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds ...

We Are All Farkhunda: An Examination Of The Treatment Of Women Within Afghanistan's Formal Legal System, Ashley Lenderman

Indiana Journal of Constitutional Design

In this paper, I will examine three cases of violence against women that went through the Afghan formal legal system: the case of Farkhunda, the Paghman district gang rape case, and the case of Sahar Gul. In the first Part, I will discuss the formal legal system framework on which the cases are based. In the second Part, I will discuss the cases in detail. In the third Part, I will describe neo-liberal, reformist, and neo-fundamentalist approaches to interpretation of Islamic law, and I will then draw out pieces of the decisions from the three cases that closely match these ...

Book Review: Prosecuting Corporations For Genocide, Sarah Federman

Genocide Studies and Prevention: An International Journal

No abstract provided.

Is The Cure Worse Than The Disease?: Censorship Of Hate Speech May Well Increase Violence, Gordon Danning

Nevada Law Journal Forum

From Charlottesville to college campuses, people with odious hate groups have risen in notoriety recently. Responses to those people and the groups to which they belong have ranged from efforts to keep them from speaking in person, to deleting their presence on the internet, to efforts to have them terminated from their jobs or evicted from their apartments, and even to physical assault by members of such groups as Antifa. Such efforts at censoring, ostracizing, and stigmatizing hate group members are generally justified by claims that such individuals are dangerous. It is true that some scholars have found an association ...

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Dickinson Law Review

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police ...

The Pharma Barons: Corporate Law's Dangerous New Race To The Bottom In The Pharmaceutical Industry, Eugene Mccarthy

Michigan Business & Entrepreneurial Law Review

In this Article, I argue that drug companies have created a highly profitable but dangerous business model by employing the same legal tactics as the nineteenth-century “robber barons,” the group of financiers who orchestrated corporate law’s infamous race to the bottom. Like these historical financiers, drug company executives have captured the legal apparatus and regulatory bodies that oversee them. In so doing, they have transformed the law from a system of governance into a set of enabling doctrines. The pharmaceutical industry has turned legislation intended to protect the public into a legal justification for marketing ineffective and unsafe prescription ...

“Collusion” And The Criminal Law, Robert M. Sanger

Robert M. Sanger

Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins

West Virginia Law Review

No abstract provided.