Rule of Law Commons^™

Creating A Just System Of Civil Recourse – Articulating The Controlled Instrumentalist Approach For Marginalized People, Rukmini Banerjee

CMC Senior Theses

A system of civil recourse is a precondition for a just society. In this paper, I outline the ideal version of a system of civil recourse and analyze the accounts of various liberal philosophers to explain how a non-instrumental and mutual accountability theory of civil recourse best encapsulates its stated purpose. I analyze the American system of civil recourse, specifically tort law, and argue that it bypasses the threshold of tolerable injustice for marginalized people in the United States. Using Tommie Shelby’s framework in Dark Ghettos: Injustice, Dissent, and Reform, I argue that marginalized people are not obligated by …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

University of Richmond Law Review

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Defensive Rule Of Law, Jon Smibert

Emory Law Journal

The rule of law has been tested over the past decade, not only in developing countries but also worldwide. The rule of law community has, in the past, focused mostly on improving the rule of law but has not emphasized building resilience into those rule of law gains. This Article will explore how development programs might encourage more robust features in their partner countries to withstand attempts to undermine the rule of law. This exploration will draw upon an umbrella concept of guardrails and norms, often associated with protecting democracy, and look at four approaches that might be used for …

Vertical And Horizontal Dimensions Of The Rule Of Law, Brian Z. Tamanaha

Emory Law Journal

Scholarly discussions about the rule of law have become a cacophony of disagreement. The more that is written about the topic, it seems, the less that we know. Thus, bringing clarity to basic issues is essential. This Essay draws out the implications of a conceptual distinction between the vertical and horizontal dimensions of the rule of law at domestic and international levels. The vertical dimension—which focuses on liberty and restraints on arbitrary government power—examines the top-down relationship between government officials and private actors in relation to how the ruling regime treats citizens and entities on matters of interest to the …

The Procedure Of Democratic Erosion, Kevin L. Cope, Mila Versteeg

Emory Law Journal

In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the target of such power-consolidating reforms, though they are not the only such target. Depending on their nature, such reforms are variously characterized as eroding democracy or being illiberal. But while they may be substantively undemocratic or illiberal, these reforms tend to be procedurally lawful. That is, they do not subvert the constitution outright but work within the existing constitutional framework, with reformers either formally changing the constitution or seeking new interpretations.

Why would leaders pursuing undemocratic reform follow …

Lessons From A Small And Troubled Country: Bosnia’S Struggling Judiciary Paints An Ominous Picture For The Future Of The Rule Of Law In The United States, David Pimentel

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

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 …

Civil Appeals Mediation Program 2023 Mediation Colloquy "Thinking 101" And Mediation

Cardozo Journal of Conflict Resolution

No abstract provided.

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.

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 …

Democratic Backsliding In Poland In Light Of Rule Of Law Accountability To The European Union, Caterina Chiopris, Monika Nalepa

Emory Law Journal

In 2015, Poland began to gradually dismantle institutions of the rule of law that had been carefully put in place after its governmental transition. Moreover, this process has been underway largely with the electorate’s support. This is puzzling because only several years earlier, the rule of law seemed to be all but guaranteed by the country’s accession to the European Union. As Poland is still a member of the European Union, and the European Union is noticing erosion of the rule of law and sounding the alarm, why are “eroders” still being elected? We propose an explanation based on the …

Drug Addiction, Insanity, And Competency: How The Halimi Case Galvanizes A U.S.-Inspired Reform Of France's Criminal Responsibility System, Ruben Attia

Cardozo International & Comparative Law Review

The Halimi case, culminating in a verdict from the Court of Cassation in April 2021, has ignited intense and contentious debates on criminal responsibility, leading to a profound erosion of public trust in the French judicial system. This Note delves into the urgency of addressing the issues presented by Halimi and emphasizes the necessity for innovative approaches within the French legislative framework. Striking a delicate balance between permitting the trial of controversial cases and upholding the age-old moral duty of excluding the mentally insane from guilty verdicts, this Note compares the intricacies of criminal responsibility in France with those in …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …