Supreme Court of the United States Commons^™

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting …

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

Testing The Limits Of Virtual Compliance: Website Accessibility, "Tester" Plaintiffs, And Article Iii Standing Under The Ada, Ashlyn Dewberry

Georgia Law Review

Federal courts have split in determining whether “tester” plaintiffs bringing suit under the ADA assert the requisite injury in fact necessary for Article III standing. These “website accessibility testers” allege that defendants’ websites do not make certain information available to disabled persons in violation of Title III of the ADA and one of its implementing regulations. This split presents an excellent opportunity to clarify which informational and stigmatic harms qualify as injuries in fact for Article III standing purposes. This Note argues that ADA website accessibility testers cannot obtain standing under current law. Neither the text of the ADA nor …

“We Do No Such Thing”: 303 Creative V. Elenis And The Future Of First Amendment Challenges To Public Accommodations Laws, David Cole

Georgetown Law Faculty Publications and Other Works

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

The Rise Of General Jurisdiction Over Out-Of-State Enterprises In The United States, Peter Hay

Emory International Law Review

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court …

On Traditionalism In Free Speech Law, R. George Wright

Journal of Legislation

No abstract provided.

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

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 …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

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 …

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.

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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.

Table Of Contents

Seattle University Law Review

Table of Contents

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …