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Articles 1 - 28 of 28
Full-Text Articles in Law
The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis
The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis
Pepperdine Law Review
In the post-Roe world, can a state rationally claim that the value of human life justifies the imposition of abortion bans but does not demand that a state protect the vulnerable young who are “born human beings”—commonly called “minors” or “children”—and are entitled to protection under a state’s laws? This essay advances the claim that it cannot. This essay asks that those who say they are “Pro-life” in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and that they do so in the most minimal fashion: through a demonstrated commitment to protecting the basic welfare …
Defining “Different”–How Distinctive Methods Of Textual Interpretation Led To The Abduction Enhancement Circuit Split, Adam Manaa
Pepperdine Law Review
This note examines the federal circuit courts’ differing approaches to interpreting the robbery abduction enhancement in the United States Sentencing Guidelines. Specifically, this note sets forth how the Sixth Circuit’s strict method of textual interpretation in United States v. Hill led to the erroneous holding that the term “different location” refers to “a place different from the store that is being robbed.” This note argues the court should have taken a more holistic interpretative approach, taking the underlying purpose of the Guidelines into account.
Are Cryptopunks Copyrightable?, Brian L. Frye
Are Cryptopunks Copyrightable?, Brian L. Frye
Pepperdine Law Review
Larva Labs’ CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars. The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …
Hair On Fire: Why Companies Are Less Likely To Feel The Burn Under The Doj’S Newest Change To Antitrust Enforcement, Caroline M. Whitener
Hair On Fire: Why Companies Are Less Likely To Feel The Burn Under The Doj’S Newest Change To Antitrust Enforcement, Caroline M. Whitener
Pepperdine Law Review
In July 2019, the Department of Justice (DOJ) Antitrust Division announced that in an effort to help companies avoid “‘hair on fire’ experiences,” Division prosecutors are now, despite previous hesitancy, encouraged to offer prosecution alternatives in the form of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to corporate antitrust violators. Alternative prosecution agreements, such as DPAs and NPAs, are contracts between the government and corporate wrongdoers that allow companies to delay or entirely avoid prosecution, provided the company adheres to the contract terms. Additionally, as a part of the policy change, DOJ antitrust prosecutors must evaluate a corporation’s preexisting …
Table Of Contents & Masthead, Anne Mccarthy
Table Of Contents & Masthead, Anne Mccarthy
Pepperdine Law Review
No abstract provided.
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Pepperdine Law Review
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …
Presumptively Awful: How The Federal Government Is Failing To Protect The Constitutional Rights Of Those Adjudicated As Mentally Ill, As Illustrated By The 18 U.S.C. § 922(G)(4) Circuit Split, Kaitlyn M. Rubcich
Pepperdine Law Review
The Third, Sixth, and Ninth Circuits are split as to whether the 18 U.S.C. § 922(g)(4) federal firearms ban violates the Second Amendment rights of those who were once adjudicated as mentally ill but have since returned to good mental health. In Beers v. Attorney General, the Third Circuit applied its own unique framework and held that § 922(g)(4) is constitutional. Meanwhile, the Sixth Circuit applied intermediate scrutiny in Tyler v. Hillsdale County Sheriff’s Department and deemed the statute unconstitutional, while in Mai v. United States, the Ninth Circuit also applied intermediate scrutiny but held that § 922(g)(4) is constitutional. …
Fighting Words Today, R. George Wright
Fighting Words Today, R. George Wright
Pepperdine Law Review
For some time, the familiar free speech exception known as the “fighting words” doctrine has been subject to severe judicial and scholarly critique. It turns out, though, that the fighting words doctrine, in general, is neither obsolete nor in need of radical limitation. The traditionally neglected “inflict injury” prong of the fighting words doctrine can and should be vitalized, with only a minimal loss, if not an actual net gain, in promoting the basic purposes of freedom of speech in the first place. And the “reactive violence” prong can and should be relieved of its historic biases and dubious assumptions. …
The Paga Saga, Tamar Meshel
The Paga Saga, Tamar Meshel
Pepperdine Law Review
Employees routinely enter into employment contracts that contain arbitration agreements and prohibit them from bringing class and/or representative actions. These employees may therefore only bring claims against their employers, whether contractual or statutory, in arbitration on an individual basis. Such arbitration agreements and the class/representative action waivers that they contain are enforced nationwide pursuant to the Federal Arbitration Act (FAA). In California, however, a judge-made rule (the Iskanian rule) prohibits the enforcement of representative action waivers found in arbitration agreements with respect to employees’ claims of Labor Code violations under California’s Private Attorney General Act (PAGA). A judicial battle is …
Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris
Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris
Pepperdine Law Review
The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets. This Essay examines the surprisingly under-explored relationship between misdemeanor cash bail & pretrial detention and the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment, using the Supreme …
Table Of Contents & Masthead, Anne Mccarthy
Table Of Contents & Masthead, Anne Mccarthy
Pepperdine Law Review
No abstract provided.
The Chinese Copyright Dream, Sean A. Pager, Eric Priest
The Chinese Copyright Dream, Sean A. Pager, Eric Priest
Pepperdine Law Review
Chinese President Xi Jinping’s vision of the “Chinese Dream” has captured the popular imagination. As a slogan, the Chinese Dream is intentionally broad. Intended to inspire rather than prescribe, it captures diverse aspirations including dreams of material prosperity, environmental sustainability, national rejuvenation, and global leadership. The Dream’s ramifications continue to ricochet through state policy echelons and lend themselves to competing interpretations. In that spirit, we advance a modest suggestion: that the Chinese Dream should be, at least in part, a dream about copyright law. A more effective copyright system would bolster China’s creative industries, generating a diverse supply of high-quality …
De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans
De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans
Pepperdine Law Review
In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …
The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu
The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu
Pepperdine Law Review
In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This Amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent Amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process. This Article begins by mapping the long and winding road …
Thieves In The Temple: The Scandal Of Copyright Registration And African- American Artists, Kevin J. Greene
Thieves In The Temple: The Scandal Of Copyright Registration And African- American Artists, Kevin J. Greene
Pepperdine Law Review
Copyright registration is the currency of copyright transactions in music, film, and television and is essential for pursuing infringement claims and ownership disputes. Despite copyright registration’s outsized reach across the copyright spectrum and importance to the copyright industries, the U.S. Copyright Office does not verify claims of copyright authorship or ownership. No express mechanism exists to challenge false copyright registrations in the Copyright Office, and the penalties for falsely claiming copyright authorship are paltry in comparison to the potential gains. This Article contends that lax copyright registration standards call into question the legitimacy of the registration system and that the …
Reflections On Music Copyright Justice, Peter S. Menell
Reflections On Music Copyright Justice, Peter S. Menell
Pepperdine Law Review
The digital revolution has upended many aspects of the copyright system, particularly as it relates to music. Drawing on creative, jurisprudential, technological, and social science insights, this article explores the broad range of music copyright justice concerns, ranging from file sharing to royalty distribution, copyright infringement standards, and the creation of music mashups.
Inviting An Impermissible Inquiry? Rfra’S Substantial-Burden Requirement And “Centrality”, D. Bowie Duncan
Inviting An Impermissible Inquiry? Rfra’S Substantial-Burden Requirement And “Centrality”, D. Bowie Duncan
Pepperdine Law Review
The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substan-tially burdening a person’s religious exercise unless the government can satisfy strict scrutiny. The statute also defines religious exercise to prohibit courts from inquiring into how central a particular religious exercise is to a person’s religion. “The term ‘religious exercise,’” reads the relevant provision, “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Despite this prohibition on centrality inquiries, some scholars argue that RFRA’s substantial-burden element requires courts to consider the religious costs a law imposes on a religious adherent …
Table Of Contents & Masthead, Anne Mccarthy
Table Of Contents & Masthead, Anne Mccarthy
Pepperdine Law Review
No abstract provided.
The United States Of California: Ninth Circuit Tips The Dormant Commerce Clause Scales In Favor Of The Golden State's Animal Welfare Legislation, Tanner Hendershot
The United States Of California: Ninth Circuit Tips The Dormant Commerce Clause Scales In Favor Of The Golden State's Animal Welfare Legislation, Tanner Hendershot
Pepperdine Law Review
In November 2018, California voters overwhelmingly passed Proposition 12, the Prevention of Cruelty to Farm Animals Act. This law requires in-state and out-of-state farmers to provide additional living space for egg-laying hens, breeding pigs, and calves raised for veal by 2022 if the farmers wish to continue doing business within the state. In response, North American Meat Institute (NAMI), whose members account for approximately 95% of the country’s output of various meat products, filed a lawsuit in federal district court seeking a preliminary injunction against Proposition 12’s enforcement. NAMI contended Proposition 12 violated the Dormant Commerce Clause, a legal doctrine …
A Twisted Fate: How California's Premier Environmental Law Has Worsened The State's Housing Crisis, And How To Fix It, Noah Dewitt
A Twisted Fate: How California's Premier Environmental Law Has Worsened The State's Housing Crisis, And How To Fix It, Noah Dewitt
Pepperdine Law Review
California, the iconic Golden State, holds the infamous record for the largest population of people experiencing homelessness in the United States. These record-setting numbers have been steadily on the rise for decades and are due in large part to the state’s severe housing shortage, which is currently just under one million housing units. From those directly experiencing homelessness to those living in the country’s most expensive zip codes, the compounding economic and social impacts of the crisis touch every Californian. The extent of the crisis is not lost on California’s leaders, but despite countless initiatives on both the state and …
Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson
Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson
Pepperdine Law Review
Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes. In 2020, the Environmental Protection Network, …
Jury Nullification As A Spectrum, Richard Lorren Jolly
Jury Nullification As A Spectrum, Richard Lorren Jolly
Pepperdine Law Review
Jury nullification traditionally refers to the jury’s power to deliver a verdict that is deliberately contrary to the law’s clearly dictated outcome. A spirited scholarship is built around this conception, with some painting nullification as democratic and others as anarchic. But this debate is largely unmoored from experience. In practice, courts have formally eliminated the jury’s authority to review the law and have established procedures that make it easier to prevent and overturn seemingly nullificatory verdicts. Thus, outside of a jury’s verdict acquitting a criminal defendant, jury nullification as traditionally understood does not exist. In no other context is a …
Justice For All? Impeding The Villainization Of Human Trafficking Victims Via The Expansion Of Vacatur Laws, Sarah Devaney
Justice For All? Impeding The Villainization Of Human Trafficking Victims Via The Expansion Of Vacatur Laws, Sarah Devaney
Pepperdine Law Review
It is common for human trafficking victims to acquire a criminal record as a result of the activities they are forced to engage in whilst being trafficked. Once these victims become survivors, their criminal record hinders them from wholly reacclimating to society. The current state of human trafficking laws provides little to no relief for human trafficking survivors in regard to alleviating their criminal records. Accordingly, human trafficking survivors are perpetually victimized by the United States criminal justice system. This Article explores the current state of human trafficking laws and their enduring effect on survivors. Specifically, the Article examines California’s …
Table Of Contents & Masthead, Anne Mccarthy
Table Of Contents & Masthead, Anne Mccarthy
Pepperdine Law Review
No abstract provided.
Not White Enough, Not Black Enough: Reimagining Affirmative Action Jurisprudence In Law School Admissions Through A Filipino-American Paradigm, Joseph D. G. Castro
Not White Enough, Not Black Enough: Reimagining Affirmative Action Jurisprudence In Law School Admissions Through A Filipino-American Paradigm, Joseph D. G. Castro
Pepperdine Law Review
Writing the majority opinion upholding the use of racial preferences in law school admissions in 2003, Justice Sandra Day O’Connor anticipated that racial preferences would no longer be necessary in twenty-five years. On the contrary, 2021 has seen the astronomic rise of critical race theory, the popularity of race-driven “diversity” initiatives in higher education, and the continued surge of identity politics in the mainstream. So much has been written on affirmative action—what else could this Comment add to the conversation? Analyzing the Court’s application of strict scrutiny through a Filipino- American paradigm, this Comment ultimately concludes that affirmative action in …
The "Unfairness" Proof: Exposing The Fatal Flaw Hidden In The Rule Governing The Use Of Criminal Convictions To Impeach Character For Truthfulness, Robert Steinbuch
The "Unfairness" Proof: Exposing The Fatal Flaw Hidden In The Rule Governing The Use Of Criminal Convictions To Impeach Character For Truthfulness, Robert Steinbuch
Pepperdine Law Review
Federal Rule of Evidence 609 (adopted by various states as well) allows for the introduction of certain convictions at trial to impeach the credibility— i.e., character for truthfulness—of any witness. The rule bifurcates its requirements between those that apply to criminal defendants—who, in theory, are afforded greater protection throughout the law than are all other participants in trials—and all remaining witnesses. The most important distinction between the standards that apply to these two classes of witnesses is that for prior crimes of criminal defendants to be introduced to impeach their credibility, those wrongdoings must survive a special balancing test spelled …
Impartial Justice: Restoring Integrity To Impeachment Trials, Justin D. Rattey
Impartial Justice: Restoring Integrity To Impeachment Trials, Justin D. Rattey
Pepperdine Law Review
In recent decades, we have witnessed the diminution of the impeachment process by various actors—especially political parties. But the Founders envisioned a vastly different process, one that was insulated from partisanship. In Alexander Hamilton’s words, impeachment trials were assigned to the Senate because the Senate is “a tribunal sufficiently dignified [and] sufficiently independent.” Examples from the most recent impeachment trials of President Donald J. Trump reflect the Senate’s loss of dignity and independence, with Senator McConnell pledging to work with the White House throughout the first impeachment process and senators from both parties conceding that they made up their minds …
Refusing Work To Avoid Serious Injury Or Death: An Empirical Study Of Legal Protections Before And During Covid-19, Michael H. Leroy
Refusing Work To Avoid Serious Injury Or Death: An Empirical Study Of Legal Protections Before And During Covid-19, Michael H. Leroy
Pepperdine Law Review
I present data on court and administrative rulings involving employees who were disciplined or quit after refusing to work due to concerns about death or injury. My sample of 109 pre-pandemic cases from 1944–2020, and its comparison to twelve COVID-19 cases in 2020 and 2021, shows an emerging picture of new forms of work refusal. The cases before COVID-19 were concentrated in mining, construction, and transportation. In contrast, the COVID-19 cases span new occupations in social services, education, law, healthcare, protective services, food preparation, and building cleaning. Before COVID-19, employees lost most work refusal cases because laws such as the …