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Articles 1 - 30 of 67
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 …
Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker
Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker
Pepperdine Dispute Resolution Law Journal
This paper explores whether mandating alternative dispute resolution (ADR), specifically in the form of early neutral evaluations (ENEs), actually improves efficiency in federal courts. This paper attempts to challenge and test the presumption that ADR inherently promotes efficiency in all civil cases. Part I introduces the reader to ENEs, ADR, their presence in federal courts, and efficiency’s role within this framework. Part II challenges the notion that ADR and efficiency are inherently linked, and asks whether mandating ENEs can prove if this inherent efficiency exists. Part III presents the legal theory that addresses this question, tending to support the notion …
Table Of Contents And Masthead, Katelyn Leeveriphan
Table Of Contents And Masthead, Katelyn Leeveriphan
Pepperdine Dispute Resolution Law Journal
No abstract provided.
The Cjeu And The Introduction Of International Dispute Settlement Mechanisms Within The Eu: Is Alternative Dispute Resolution In The Eu In Safe Hands?, Tasnim Ahmed
Pepperdine Dispute Resolution Law Journal
This article draws upon the jurisprudence of the Court of Justice of the European Union (CJEU) concerning the role of the international dispute settlement mechanisms operating within the EU legal order. The Court has resisted the introduction of such dispute settlement mechanisms, referring to Articles 267 and 344 of the Treaty of the Functioning of the European Union (TFEU) as justifications for its ‘judicial monopoly’. The Achmea case in particular allows the Court to declare these dispute settlement mechanisms contrary to EU law. However, with the Comprehensive Economic Trade Agreement (CETA) Opinion, the Court itself has permitted the CETA Investment …
Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea
Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea
Pepperdine Dispute Resolution Law Journal
This article aims to explore court decisions which have made arbitration less attractive to businesses—both those which have refused to enforce arbitration clauses and paradoxically and those which have enforced arbitration clauses—as well as to provide an overview of businesses' reactions to those decisions and make some predictions about the future direction of travel. To that end, this article will be divided into three main parts. The first will explore the decision of New Prime Inc. as well as the various federal appellate decisions that have applied it. The second will explore the challenges posed by mass arbitration, and the …
Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra
Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Fixing The Dent: How Nfl Owners Closed The Door To Civil Common Law Liability, Zachary Okun
Fixing The Dent: How Nfl Owners Closed The Door To Civil Common Law Liability, Zachary Okun
Pepperdine Dispute Resolution Law Journal
With a new, eleven-year Collective Bargaining Agreement (CBA) upon us, this paper will discuss in Section II what a CBA is, the purpose CBAs serve, and the function and historical treatment of the NFL’s CBA by the courts. Section II will also explain the NFL arbitration process, the reason the NFL fights so hard to enforce arbitration, and why the players should have been more cognizant of the provisions within the CBA which act to insulate the NFL and its Clubs from common law tort liability. Section III will discuss the NFL’s historical reliance of the LMRA §301 preemption defense; …
Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies
Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies
Pepperdine Dispute Resolution Law Journal
This paper reviews, discusses, and advances the field of artificial intelligence in the field of litigation analytics and its application to arbitrations. To better explain the weight an attorney, judge, arbitrator, or the public should have towards artificial intelligence and its utilization in the legal field, this paper reviews current AI publications in the litigation analytics field, historical examples, ethical considerations for analytics, and issues surrounding the accumulation of litigation data. Thereafter, this combined knowledge and experience is applied to Federal Industry Regulatory Authority (FINRA) arbitration awards with a novel AI program designed to scrape, index, and analyze these awards …
Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein
Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein
Pepperdine Dispute Resolution Law Journal
The drive for efficiency has caused many legal systems to redesign themselves, creating multiple paths for dispute resolution and incorporating settlement-promoting tools into the judicial role. However, as this study shows, legal systems have taken divergent approaches as they redesign themselves to accommodate settlement practices, leading to widely disparate results. This study probes the paths taken by three countries’ legal systems—England and Wales (common law), Israel (mixed), and Italy (continental law)—drawing on court docket analyses, courtroom observations, and interviews with judges in the three legal systems. It uncovers central points of divergence—emphasized stage of dispute resolution, separation vs. combination of …
Table Of Contents & Masthead, Anne Mccarthy
Table Of Contents & Masthead, Anne Mccarthy
Pepperdine Law Review
No abstract provided.
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 …
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. …
Table Of Contents And Masthead, Katelyn Leeveriphan
Table Of Contents And Masthead, Katelyn Leeveriphan
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs
Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs
Pepperdine Dispute Resolution Law Journal
The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.
A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald
A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald
Pepperdine Dispute Resolution Law Journal
William Marshall proposed that congressional inaction threatening “the ability of the government to function” should be “subject to constitutional scrutiny.” This article is a response to Marshall’s proposal and offers a potential solution based on alternative dispute resolution rather than the courts. When faced with seemingly insurmountable differences, Congress must look to alternative dispute resolution to reach a breakthrough on critical issues. This paper proposes the creation of a Mediation Office to assist Congress in coming to these breakthroughs. This mechanism could also possibly intervene when the issue is between Congress and the President. Part II of this article will …
Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros
Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros
Pepperdine Dispute Resolution Law Journal
This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …
You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham
You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham
Pepperdine Dispute Resolution Law Journal
This article addresses whether, when the Federal Arbitration Act (“FAA”) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state law judicial review standards. This argument proceeds as follows: Part I provides an introduction. Part II analyzes the procedural reform intent of the FAA and why the statute seeks to standardize the arbitration process. Part III reviews the judicial review of arbitration awards as promulgated in Hall Street Associates, L.L.C. v. Mattel, Inc. Part IV reviews the generations of FAA cases which have been held to be preempted by SCOTUS. Part V …
"Stronger" Together: Kanye Could Have Owned His Masters By Engaging In Collective Bargaining, L. Camille Cordova
"Stronger" Together: Kanye Could Have Owned His Masters By Engaging In Collective Bargaining, L. Camille Cordova
Pepperdine Dispute Resolution Law Journal
Because the legislature and judiciary have failed to protect recording artists’ interests, this article proposes that engaging in collective bargaining will re-balance the bargaining positions of the major record labels and recording artists to create a mutually beneficial agreement that gives recording artists a termination of rights clause that mirrors section 203 of the 1976 Copyright Act. By contracting with a major record label, recording artists are automatically eligible for union membership to the Screen Actors Guild-American Federation of Television and Radio Artists union (“SAG-AFTRA”), who have experience negotiating other collective-bargaining agreements with these record labels. This agreement would provide …
Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda
Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda
Pepperdine Dispute Resolution Law Journal
Double-hatting is when an individual plays the dual role of an arbitrator and a legal counsel—a concept first introduced by Professor P. Sands during an IBA conference in 2009. While it hampers the credibility of the arbitral process, its proponents oppose a complete prohibition reflecting on its benefits. The author hypothesizes that this issue has been inadequately addressed in international commercial arbitrations in juxtaposition to international investment arbitrations. Supporting this, the author introduces the concept, tracing its judicial landscape and scholarly discourse in investment arbitrations highlighting the need to adopt a similar approach in commercial arbitrations. Thereafter, the definition of …
Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe
Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe
Pepperdine Dispute Resolution Law Journal
Higher education is fraught with disputes on both a macro and micro level. In a broad sense, institutions of higher education serve as a focal point for many disparate cultures, economic strata, ages, genders, races, ideologies, and other societal influences, and concentrates them within an insular community. Such an amalgamation of humanity is bound to produce conflicts of all kinds. These disputes can range from the elementary to the criminal. Title IX of the Educational Amendments of 1972 governs disputes rising to the level of sexual harassment or discrimination and are updated by periodic agency updates disseminated through “dear colleague” …
The Case For A Liberal Communitarian Jurisprudence, Amitai Etzioni
The Case For A Liberal Communitarian Jurisprudence, Amitai Etzioni
Journal of the National Association of Administrative Law Judiciary
This article seeks to show that courts face difficulties without a principled, constitutional anchoring for the conception of the common good. Courts could divine the common good from the penumbra of the Fourth Amendment in the same way the Supreme Court created a right to privacy. In addition to creating a “common good” constitutional principle, the judicial branch should establish criteria to determine when this principle should take precedence over individual rights expressly preserved in the Constitution.
Table Of Contents & Masthead, Cara M. Macdonald
Table Of Contents & Masthead, Cara M. Macdonald
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Fate Of The Advancing American Kidney Health Initiative In A Biden Administration, Seth Shepherd
The Fate Of The Advancing American Kidney Health Initiative In A Biden Administration, Seth Shepherd
Journal of the National Association of Administrative Law Judiciary
This article analyzes the Biden Administration’s healthcare priorities, contrasts them with those of the Trump Administration, discusses how Presidential administrations determine whether to continue policies, and examines the proper procedures for continuing previous administration policies. This article will then examine whether the Initiative will have a place in the Biden Administration’s healthcare policy. Part II considers Biden’s overall approach to healthcare. Part III discusses what the Trump Administration’s healthcare policy accomplished. Part IV dissects the Initiative and begins a discussion regarding its effectiveness. Part V explores an administration’s decision-making process regarding retention or rejection of a previous administration’s policies and …
May The Executive Branch Forgive Student Loan Debt Without Further Congressional Action?, Colin Mark
May The Executive Branch Forgive Student Loan Debt Without Further Congressional Action?, Colin Mark
Journal of the National Association of Administrative Law Judiciary
On April 1, 2021, the Biden administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper interrogates the leading arguments for and against the Biden administration’s capacity to forgive this student loan debt strictly using administrative action. This article first surveys the history of federal student loan forgiveness programs in the United States. It then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the …
A New Antitrust Framework To Protect Mom And Pop From Big Tech, Cara Macdonald
A New Antitrust Framework To Protect Mom And Pop From Big Tech, Cara Macdonald
Journal of the National Association of Administrative Law Judiciary
While the economy declined during the COVID-19 pandemic, big technology companies like Amazon and Oracle experienced unprecedented growth and influence. Critics argue big technology companies are finding this level of success in-part due to anticompetitive practices. The crux of the debate rests on whether current, traditional antitrust laws are sufficient to cope with big technology companies. Some theorists argue that current laws are adequate, while others assert that antitrust laws are insufficient to regulate big technology companies because they are so different from the types of companies antitrust laws were designed to regulate. This article concludes that big tech companies …
To Mulch Or Not To Mulch: Problems With Plastic Mulch And How To Address Them, Rebecca Kim
To Mulch Or Not To Mulch: Problems With Plastic Mulch And How To Address Them, Rebecca Kim
Journal of the National Association of Administrative Law Judiciary
While environmentally conscious consumers may be concerned about single-use plastic packaging their produce comes in, they likely do not think of the excess of plastics farmers use just to grow that produce. The agricultural industry uses an extraordinarily high amount of plastic, notably through agricultural films, which are thin plastic membranes used for mulching. The predominant use of these films has come to be known as “Plasticulture” and, although plastic mulch has many benefits, its ubiquitous use creates substantial waste that, when broken down into micro plastics, eventually enter the human body. This article evaluates the advantages and drawbacks of …