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Student Life E-Newsletter January 16, 2024
Get PDFhttps://digitalcommons.law.seattleu.edu/studentlife/1144/thumbnail.jp
AI, New Technologies, and Corporate Governance: Three Phenomena
Get PDFArtificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading to new connections and entanglements between a firm, the market, and other firms. Based on this, the Article argues that existing models and concepts are inadequate for addressing the challenges posed by the digital and AI revolution. It calls for a reevaluation of corporate governance strategies, highlighting the importance of resource optimization and shared governance. It also proposes the creation of regulatory frameworks to mitigate power imbalances and ensure adequate access to AI and the platform economy
Due Process Shaped by the Present Instead of the Past: The Needed Reinvigoration of a Lawrence Vision of Due Process
Get PDFThe recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation’s history and tradition. The other is to ask whether the right to be found is fundamental to this Nation’s scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is too vague and invites too much judicial discretion. Under the Court’s current direction, the past alone, without thought given to present-day conditions, provides the scope of the inquiry into the existence of an unenumerated right under the Fourteenth Amendment’s Due Process Clause. This Note argues that the liberty prong, alongside the history and tradition prong, is essential to any substantive due process inquiry. To address the current Court’s concerns, this Note prescribes a two-part tweak to the traditional Lawrence-styled liberty analysis to reinvigorate the commonsense notion that present-day conditions should factor into an inquiry questioning the existence of a present-day right
Native Nation Resistance to the Machinations of Settler Colonial Democracy
Get PDFThis Essay’s publication coincides with the centennial commemoration of the Indian Citizenship Act of 1924, which offers an opportunity to revisit the historical and contemporary ways the concept of citizenship has been used to both increase Indigenous legibility and refute the project of empire. Through a review of the history of territorial incorporation, statehood, federal recognition, and citizenship, I examine the machinations of settler colonialism that seek to eliminate, contain, and assimilate Native Nations and Indigenous Peoples into the federal polity. Seeking to concretize this examination—and to respond to calls to broaden the scope of Indigeneity and the field of Indigenous Peoples Law in the United States—I focus on historical and contemporary examples of Indigenous resistance to these machinations in the Alaskan, Hawaiian, American Samoan, and Guåhan contexts. Despite the machinations of settler colonialism proffering doctrinal differences via the “law of the territories” and “federal Indian law,” Indigenous resistance in these contexts illuminates more similarities than differences and elucidates a desire for full sovereignty and self-determination, a sovereignty that is anything but sui generis
A Taking by Any Other Name: Why Exclusionary Zoning Should Be Classified as a Per Se Taking
Get PDFThe housing affordability crisis in U.S. cities, particularly on the West Coast, has been well publicized in recent years, and the search for solutions has drawn together allies from across the ideological spectrum. While various cities and states have rolled out many types of reforms, there remains a widespread regulatory failure preventing the adaptation of cities to modern demands. A primary culprit is exclusionary zoning: plot-by-plot designation of which types of structures can be built on a piece of property— particularly which types of structures are absolutely prohibited from being built—and the broad definitional standards to which those structures must conform. Many of the regulatory policies behind the housing crunch can be tied back to the allowance of exclusionary zoning in the Supreme Court’s 1926 case, Euclid v. Ambler, in which the Court determined for the first time that exclusionary zoning was a constitutional exercise of the police power and not a taking. However, recent Supreme Court opinions in Horne v. Dep’t of Agriculture and Cedar Point Nursery v. Hassid have given new life to the takings clause.
This Article will argue that the Supreme Court should continue reinvigorating the takings clause by overruling Euclid, and instead hold that exclusionary zoning is a per se taking for public purposes. Under this rule, states should either compensate landowners accordingly or adjust their zoning policies to permit owners to develop their property to its highest and best use. In this Article, I first highlight how zoning has impacted the development of relatively young West Coast cities through the example of Seattle, Washington. Then, I argue that current takings clause jurisprudence— which centers on the distinction between regulatory and per se takings—leads to illogical and unjustifiable results when applied to the zoning context. I argue that the court should abandon the regulatory/per se taking distinction, and instead adopt a per se takings rule. I will explain how this would operate for exclusionary zoning, respond to several likely objections, and describe how such changes could impact the future development of Seattle.
This is an updated version dated October 23, 2024. This version clarifies Richard H. Chused’s argument, cited on page 16. Professor Chused argues that the rationale behind Euclid is properly derived from and embedded with the racism of the Lochner era in which the case was decided, not on class as the article suggested. See Richard H. Chused, Euclid’s Historical Imagery, 51Case W. Rsrv. L. Rev. 597, 597 (2001)
Student Life E-Newsletter October 14, 2024
Get PDFhttps://digitalcommons.law.seattleu.edu/studentlife/1162/thumbnail.jp
The Duty to Make Contracts Understandable
No full textSo what if consumers can\u27t understand contracts? They don\u27t read contracts. They can\u27t negotiate contracts. All their contracts have the same unfair terms. And nowadays businesses use algorithms, artificial intelligence, and social scientists to craft individualized contracts that hack consumer\u27s minds. Choice is an illusion. Consumer understanding is a pipedream. Even so, contracts should still be understandable. The opportunity to understand a contract is essential to contract formation\u27s integrity. While much contract literature focuses on how nonnegotiable contracts cause consumers to make bad deals, this Article challenges the concession that a deal has been made. Contract formation requires consumers have an opportunity to read the contract, which in turn requires consumers have an opportunity to understand what they read. Even if consumers do not exercise this opportunity, and even if exercising that opportunity only reveals how unfair the contract is, this opportunity must exist. The Article proposes the Uniform Law Commission pass a statute requiring consumer contracts to be understandable to the average intended consumer. Such a law benefits sellers and consumers alike, removes the biggest and oldest impediment to contract innovation (lawyers), incentivizes using machines and science to improve contracts, and might just save transactional lawyers from having their jobs poached by technology. I. Why Consumer Understanding Matters to Contract Law
