Digital Commons Network^™

The Online Criminal Trial As A Public Trial, Stephen Smith

Faculty Publications

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle …

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

Faculty Publications

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Exploitation Of Space And Patent Law: How The Current Legal System Ineffectively Protects Private Companies In The Commercial Space Industry, Malmen, Liz

Santa Clara Journal of International Law

Over fifty years ago man first landed on the moon. Since then, outer space has become increasingly closer with the direction and development of the commercial space industry. What was once an exclusive government function is turning into a private business. It is no longer difficult to imagine the possibility of going to space when companies like SpaceX have launched private crews into orbit. However, encouraging technological advancements to support the commercial space industry requires adequate legal protections of such innovation. This can be challenging when international space law has had little growth since man was first on the moon, …

Past As Prologue: Intercept & Surveillance Rules Under Hong Kong’S National Security Law, Hargreaves, Stuart

Santa Clara Journal of International Law

In response to civil unrest in 2019, in 2020 Beijing directly applied a new National Security Law to Hong Kong. Part of this law established a new system of rules for the authorisation of communications intercepts and covert surveillance in the context of certain national security offences. Interestingly, this new scheme looks in many ways like a prior system that was deemed unconstitutional by a Hong Kong court in 2006: it centralizes authorization authority in the executive branch and there is little external oversight of the process. This paper argues that the new system of rules regarding covert surveillance of …

Drones And Civilians: Emerging Evidence Of The Terrorizing Effects Of The U.S. Drone Programs, Keenan, Patrick J.

Santa Clara Journal of International Law

The Biden Administration, in one of its first consequential foreign policy decisions, announced that it would undertake a comprehensive review of the United States drone program. Officials promised that this review would consider all available evidence. This article shows that the U.S. drone program violates international law because of the ways it terrorizes civilian populations. U.S. officials from both parties have argued that drones are an effective part of the U.S. counterterrorism strategy. However, effectiveness is not the legal standard. The law requires that the program not unduly harm civilians. For as long as the U.S. has been using drones, …

Volume 38, Santa Clara High Technology Law Journal

Santa Clara High Technology Law Journal Masthead Archive

No abstract provided.

Volume 62, Santa Clara Law Review

Santa Clara Law Review Masthead Archive

No abstract provided.

Volume 19, Santa Clara Journal Of International Law

Santa Clara Journal of International Law Masthead Archive

No abstract provided.

Diversity In Innovation Best Practices Guide, Laura Norris, Mary Fuller, Joy Peacock, Sydney Yazzolino

Faculty Publications

In 2020, the USPTO collaborated with the HTLI to propose a study designed to increase diversity in the patenting process, specifically targeted to in-house legal / IP department and their practices. The goal of the study was simple - harvesting the collective knowledge of nationwide IP professionals and producing an “insanely practical” guide to expand inventorship to a more diverse inventor population. By “diverse” we mean underrepresented or historically marginalized groups in the United States patent system. The term "diversity" can be interpreted differently in different countries. The HTLI research team collected this extensive list of over 90 best practice …

A Humanitarian Exception: The International Legal Justification For U.S. Military Action Against The Syrian Regime, Nordin, Vincent

Santa Clara Law Review

The United Nations Charter provides that countries are prohibited from the use of force except when done in self-defense or when authorized by the United Nations Security Council. Although the United States’ airstrikes against Syria in 2017 and 2018 did not fit into either of those two exceptions, the airstrikes were legal under international law due to an exception for humanitarian intervention. The question of whether customary international law recognizes such an exception is far from settled. Most scholars of international law believe that humanitarian intervention is not a part of customary international law, while a minority hold the opposite …

Separating Preemption From The Subject Matter Analysis Of 35 U.S.C. § 101, Swartz, Rodney

Santa Clara Law Review

With what seems to be a fluke of history, the Supreme Court has developed a subject matter analysis framework embodied in 35 U.S.C. § 101 that relies on the preemption doctrine to justify invalidation. This Article establishes that preemption has a distinct objective that is more closely aligned with the written description framework of § 112 than with the subject matter eligibility framework of § 101. As a result of relying on preemption, the Court has created an arbitrary and difficult to apply test, resulting in a chasm between the United States Patent and Trademark Office (USPTO) and courts that …

Death Penalty Keynote: Why Mitigation Matters, Now And For The Future, Stetler, Russell

Santa Clara Law Review

This Article examines the current state of the death penalty in California and nationally through the lens of mitigation—the empathy-evoking evidence that has been a constitutional requirement to ensure individualized sentencing in the era of the modern American death penalty. It situates the discussion in the context of the extraordinary events of 2020: the Covid-19 pandemic, the heightened awareness of racial inequities reflected in the Black Lives Matter movement, and the federal execution spree in the final six months of the Trump administration. The Article began as the keynote address at California’s annual Capital Case Defense Seminar on February 13, …

Transnational Corporations & International Human Rights Disputes: Alternatives To Litigation, Silva, Jacquelyn

Santa Clara Law Review

Individuals working for transnational corporations face immense challenges in securing their fundamental rights and receiving remedy for corporate abuses. Inversely, transnational corporations face various risks against their social responsibility when they prioritize their operations and profits. Current international law efforts have been assessing ways in which to impose human rights obligations on companies more directly. Any such imposition of human rights protections advances the necessity of considering the mechanisms available to resolve such disputes, especially given that litigation in international “courts” is not available for this purpose. Until an international forum is established, challenges remain in confronting human rights disputes …

In Praise Of Nonconformity, Lindsay, Ira K.

Santa Clara Law Review

Exemption of existing structures and land uses from new zoning regulations is a long-standing part of zoning practice but is often regarded as an unfortunate political concession that entrenches an irrational distinction between present uses and future use. This Article provides an unapologetic defense of statutory protection for these nonconforming existing uses. Existing use protection represents a principled position that balances the interests of property owners and the interests of the public. Far from being an unsavoury political compromise, protection of existing uses is a crucial component of modern land use regulation that balances the needs of landowners for legal …

Setting The Standard For “Neutral” Arbitrators: The Risk Of Evident Partiality And The Impact Of Monster Energy V. City Beverages, Schmelter, William

Santa Clara Law Review

The use of Alternative Dispute Resolution (ADR), and particularly arbitration, has grown in tandem with the delays and costs of litigating in overburdened state and federal court systems, but that rise in popularity has not come without a cost. Although arbitration may often be a preferable alternative to a full-blown court trial, the inconsistency and insufficiency of existing disclosure requirements for arbitrators in many states limits the ability of parties to make an informed evaluation as to the risk or existence of potential bias. The recent Monster Energy case out of the United States Court of Appeals for the Ninth …

A (Dangerous) New Normal—Public Safety Power Shutoffs (Psps): A Look Into California Utility De-Energization Authority And The Potential For Its Abuse, Murillo Ii, Robert

Santa Clara Law Review

Over the past few years, the State of California has endured some of the worst fire seasons on record. In 2020, over one million acres burned across the San Francisco Bay Area, Northern California, and the Central San Joaquin Valley—conditions which created a public safety and health emergency in the midst of an ongoing pandemic. In 2019, the Kincade Fire set ablaze nearly 78,000 acres in Northern California, but coincided with widespread power shutoffs impacting millions of customers throughout the state. In 2018, we learned of the devastation in Butte County, where the Camp Fire destroyed the community of Paradise, …

Sí, Se Puede: Why The Agricultural Industry’S “Mujeres Imparables” Fight For Adequate Legal Remedies For Survivors Of Sexual Assault Matters, Cotroneo, Alexandra

Santa Clara Law Review

The ‘#metoo’ movement sparked cross-industry dialogue, illuminating the rampant sexual harassment within certain industries. While the Civil Rights Act of 1991 broadens the scope of available remedies to employees who endured sexual harassment in the workplace, the Act’s statutory cap on compensatory and punitive damages inadequately redresses survivors’ injuries and fails to encourage employers to implement and enforce sufficient workplace protections. The statutory cap impacts all employees who have viable sexual harassment claims; however, the statutory cap markedly affects women fieldworkers in the agricultural industry. The severe lack of adequate employee protections in conjunction with the vulnerabilities this workforce inhabits, …

Student Is A Nice Name For Free Labor, Anderson, Jenna M.

Santa Clara Law Review

The National Collegiate Athletic Association (NCAA) contends that the principle of amateurism protects student-athletes and ensures that their number one priority is education. Although this may have been true when the NCAA was formed, the commercialization of college sports and accompanying monetary incentives have enticed the NCAA to enforce rules that exploit student- athletes at the detriment of their education. The NCAA’s impure motives are no longer going unnoticed. The public is disgusted by what it sees in the media. Student-athletes are rebelling by suing the NCAA for violating federal antitrust laws. The states are passing laws that give the …

The Rule Of Law: A Necessary Pillar Of Free And Democratic Societies For Protecting Human Rights, Bessler, John D.

Santa Clara Law Review

This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in …

Legal Education During The Covid-19 Pandemic: Put Health, Safety And Equity First, Sandoval, Catherine J.K., Et Al

Santa Clara Law Review

The COVID-19 viral pandemic exposed equity and safety culture gaps in American legal education. Legal education forms part of America’s Critical Infrastructure whose continuity is important to the economy, public safety, democracy, and the national security of the United States. To address the COVID-19 pandemic and prepare for future viral pandemics and safety risks, this article recommends law schools develop a safety culture to foster health, safety, robust educational dialogue, and equity. To guide safety-and-equity-centered decision-making and promote effective legal education during and following the COVID-19 pandemic, this article contends legal education must put health, safety, and equity first. It …

The Three Steps Required For Originalist Interpretation: How Distortions Appear At Each Stage, Crump, David

Santa Clara Law Review

Originalism is often the most satisfactory method of interpreting texts. But originalism is only one of a number of modalities of interpretation, all of which have to be kept in mind. Sometimes originalism is not the best method of reading a text. Originalist interpretation requires three distinct steps. First, a court must determine that originalism is the preferred method of finding meaning in the text at issue. This decision can create problems if originalism is actually not the method the court plans to use even though the court has said so. And sometimes the court may decide in the midst …

Being Blonde In China And How To Protect My Right Of Publicity Abroad, Norvell, Lauren

Santa Clara Journal of International Law

Being Blonde in China and How to Protect My Right of Publicity Abroad

Cross-Border Data Transfers Between The Eu And The U.S.: A Transatlantic Dispute, Jiménez-Gómez, Briseida Sofía

Santa Clara Journal of International Law

Cross-Border Data Transfers Between the EU

and the U.S.: A Transatlantic Dispute

Nanotechnology Patent Law: A Case Study Of The United States And European Patent Applications, Costello-Caulkins, Michael

Santa Clara High Technology Law Journal

NANOTECHNOLOGY PATENT LAW: A CASE STUDY OF THE UNITED STATES AND EUROPEAN PATENT APPLICATIONS

Social Support For Terrorists: Facebook’S “Friend Suggestion” Algorithm, Section 230 Immunity, Material Support For Terrorists, And The First Amendment, Yost, Ellen Smith

Santa Clara High Technology Law Journal

SOCIAL SUPPORT FOR TERRORISTS: FACEBOOK’S “FRIEND SUGGESTION” ALGORITHM, SECTION 230 IMMUNITY, MATERIAL SUPPORT FOR TERRORISTS, AND THE FIRST AMENDMENT

Personhood For Synthetic Beings: Legal Parameters And Consequences Of The Dawn Of Humanlike Artificial Intelligence, Osborne, Daniel S.

Santa Clara High Technology Law Journal

PERSONHOOD FOR SYNTHETIC BEINGS: LEGAL PARAMETERS AND CONSEQUENCES OF THE DAWN OF HUMANLIKEARTIFICIAL INTELLIGENCE

Blockchain & Ccpa, Alza Jr., Gustavo

Santa Clara High Technology Law Journal

BLOCKCHAIN & CCPA

Is There Evidence Of Antitrust Harm In The House Judiciary Committee’S Hot Docs?, Oh, Sarah

Santa Clara High Technology Law Journal

IS THERE EVIDENCE OF ANTITRUST HARM IN THE HOUSE JUDICIARY COMMITTEE’S HOT DOCS?

Copyrighting Copywrongs: An Empirical Analysis Of Errors With Automated Dmca Takedown Notices, Seng, Daniel

Santa Clara High Technology Law Journal

COPYRIGHTING COPYWRONGS: AN EMPIRICAL ANALYSIS OF ERRORS WITH AUTOMATED DMCA TAKEDOWN NOTICES

The Connecticut Second Chance​ ​Pardon​ ​Gap, Colleen Chien, Hithesh Bathala, Prajakta Pingale, Evan Hastings, Adam Osmond

Faculty Publications

Connecticut Law Chapter 961a Section 54-142a, Chapter 960a Sections 54-76o and 54-130a allows individuals whose criminal records meet certain conditions to apply for pardons of their past criminal convictions. Proposed Bill SB 403,2 Connecticut’s “Clean Slate” Act, likewise would provide for automatic erasure of the records of a subset of individuals who can apply for pardons. Ascertaining, then applying existing pardons law and proposed “Clean Slate” law to a sample of 309,827 criminal histories of individuals with Connecticut convictions records, and then extrapolating to the estimated population of 450K individuals in the state with convictions,3 we estimate the share and …