Supreme Court of the United States Commons^™

Is Originalism Bullshit?, Michael L. Smith

Faculty Articles

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

The Sword, The Purse, And The Pen: The Constitutional Conundrum Of Impoundment, William N. Chance

CMC Senior Theses

This Thesis explores the constitutional conundrum of executive impoundment, the practice by which the President of the United States withholds or delays the expenditure of funds appropriated by Congress. Although impoundment has deep historical roots dating back to the Constitution’s Framers, its modern use raises profound questions regarding our separation of powers. This Thesis establishes a functional framework that distinguishes between “routine” impoundments, which promote administrative efficiency, and “policy” impoundments, which may undermine congressional intent. Furthermore, after tracing the development of impoundment from the early Republic through the Nixon Administration and the passage of the Impoundment Control Act of 1974, …

Electing The Supreme Court, Dmitry Bam

Faculty Publications

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

You Had One Job: The Supreme Court's New Chance To Fix The Constitutional Law Of Sentencing Factfinding, Benjamin J. Priester

Faculty Articles

Four decades after the enactment of the federal Sentencing Reform Act, one might expect a settled consensus to have emerged addressing the constitutional constraints on implementing norms such as predictability, consistency, and uniformity in the imposition of criminal punishment in the United States. In reality, the United States Supreme Court has failed to provide stability or clarity in the doctrinal principles implicated in millions of criminal cases nationwide. Spanning a quarter century, the Apprendi v. New Jersey line of cases has featured narrow or fragmented majorities, significant concurring opinions, and multiple instances of individual justices either overtly admitting to changing …

Lost Fatherhood: Including Fathers In The Post-Dobbs Abortion Debate, Linda L. Schlueter

Faculty Articles

Scientific studies over the last five decades show the negative impact an abortion can have on the men who fathered the aborted children. These studies demonstrate that those men-even if they supported the woman's decision to have an abortion-can experience a variety of psychological problems including depression, anger, hopelessness, helplessness, broken or damaged relationships, feelings of emasculation, and loneliness. Despite these compelling studies, little or no real attention is given to involving men in the legal debate regarding abortion. The abortion debate presents a legal Rubik's Cube of thorny issues that can affect the mother, the father, and the unborn …

The Erosion Of Trust: Arizona V. Navajo, Climate Change, And The Potential Abrogation Of Tribal Water Rights, Dr. Taino J. Palermo

Roger Williams University Law Review

No abstract provided.

White Christian Nationalism & Antisemitism: A True Threat, Doron M. Kalir

Law Faculty Articles and Essays

For a short period following World War II, it seemed like the World is aspiring to become a better place. Article I of The Universal Declaration of Human Rights reflected that notion, announcing that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” That was the closest we, as a family of nations, ever came to fulfill the “dream of reason”—a state where we all work together, free from hate and prejudices, towards a common goal: A better world …

From 1957 To 2023: How The Supreme Court Prevented Little Rock Schools From Achieving The Ideal Of Desegregation, Nyssa Kruse

Indiana Journal of Law and Social Equality

No abstract provided.

From Downes To Dobbs: Why Stare Decisis Should Not Stop The Court From Overturning The Territorial Incorporation Doctrine, Gino Piccinini

Indiana Journal of Law and Social Equality

No abstract provided.

Reading The Tea Leaves: Unrealized Income, Separation Of Powers, And An Examination Of Whether There Is More To The Moore Case Than The Mandatory Repatriation Tax, Natasha Varyani

Roger Williams University Law Review

No abstract provided.

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

On Guido Calabresi, Roger K. Newman

Touro Law Review

Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …