Law Commons^™

The Joyful Prosecutor: A More Empathetic And Balanced Approach, Reid, Melanie

Santa Clara Law Review

Over the years, prosecutors have been criticized for exhibiting aggressive, competitive traits while negotiating plea deals, investigating and preparing cases for trial, or arguing for their positions before, during, and after trial. Prosecutors are asked to interact with others in a highly adversarial criminal justice system on a daily basis on top of working in a highly competitive environment back in their own offices. This environment makes it difficult for a prosecutor to see the opposing party through a more compassionate lens. However, rather than continually focusing on how “bad” prosecutors can be and how to punish their misconduct, this …

Upon Further Review, The Ruling On The Field Has Been Overturned: The New Era Of College Athletics Following Ncaa V. Alston, Salvestrin, John

Santa Clara Law Review

Recent market trends in college athletics elicit the true effects of the NCAA’s constraint on student athletes across the United States. Since the NCAA’s inception, student athletes have not been justly compensated for their efforts on the field—the NCAA and its member universities hoard the spoils that come about from these students’ world-class athletic abilities. This inequity is becoming more apparent than ever before, as college athletics is shifting towards a more pro-athlete landscape where they can finally profit from their athletic status and contributions. The NCAA’s justifications in prohibiting athletics compensation is quickly losing merit as we enter a …

Beyond #Freebritney: An Analysis Of The Impact Of Ab 1194 On Professional Fiduciaries, The Role Of Court-Appointed Counsel, And Court Oversight Requirements, Schrammel, Isabella

Santa Clara Law Review

This article analyzes the impact of California Assembly Bill No. 1194 (AB 1194) on professional fiduciaries and court-appointed counsel and posits funding issues as a barrier to achieving the goals set out by AB 1194 and prior conservatorship law reforms. This article proposes numerous changes to AB 1194, including incentivizing rather than solely penalizing professional fiduciaries, adopting a midway standard between zealous advocacy and the best interests standard for court-appointed counsel, and development of a coherent funding plan.

AB 1194 was adopted largely in response to media movements such as #FreeBritney, the movement which called for an end to the …

The Good, The Bad And The Ugly Of Dobbs: A Constitutional Reckoning, Hutchinson, Allan C.

Santa Clara Law Review

The United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization marked a constitutional reckoning, with pervasive and inescapable consequences for many Americans. This article discusses this constitutional reckoning in two senses. First, it was a reckoning with the Court’s own precedent, as it overturned nearly fifty years of precedent on abortion rights. Second, it was a reckoning with the Court’s role in American society, as it raised fundamental questions about the Court’s legitimacy and its ability to protect the rights of minorities.

This article begins by outlining a history of abortion rights in the United States, from …

Technology, Tinker, And The Digital Schoolhouse, Simoneau, Blakely Evanthia

Santa Clara Law Review

The world, both inside and outside the schoolhouse, has changed considerably since the Supreme Court decided Tinker v. Des Moines in 1969. Education in much of the United States is now inextricably linked with technology, and the schoolhouse is, increasingly, digital. This article critically examines the impact of the increasing use of technology on students’ First Amendment rights, looking at the Supreme Court’s recent decision in Mahanoy v. B.L. Specifically, it examines the effect of allowing schools to restrict speech on school-issued devices.

Disciplining speech that takes place on school-issued devices will have a silencing effect on students who do …

Reaching Past Rucho: A Constitutional Tort For Money Damages Against Individuals Who Draw Gerrymandered Districts, Turner, Sam

Santa Clara Law Review

The Supreme Court in Rucho v. Common Cause held that the issue of partisan gerrymandering—that is, the drawing of political districts in a way that favors the party in power— presented a political question that was outside the competency of the courts to solve, at least through constitutional law. This article argues that Rucho does not close the door to judicial action in the face of partisan gerrymandering but instead closes the door only to the remedy proposed in the case. As with practically all major constitutional cases in recent memory, the Rucho plaintiffs were seeking relief that was equitable …

Restoring Balance To Qualified Immunity: Modified Mandatory Sequencing, Cain, Patrick

Santa Clara Law Review

Qualified immunity continues to confound and frustrate judges, lawyers, law professors, law students, and even those outside the legal industry. Much of this frustration results from outcomes that shock the conscience, such as when government officials are granted qualified immunity despite stealing money while executing a search warrant or when government officials lock a prisoner in a highly unsanitary cell for a week.

Legal scholars have examined two main areas within the qualified immunity doctrine: the common law origins and the clearly established prong of qualified immunity analysis. The common law origins of qualified immunity have been thoroughly examined, and …

Unraveling The Disgorgement Regime, Piras, Alessandro

Santa Clara Law Review

Disgorgement is a legal remedy requiring those who gain from illegal or wrongful acts to give up any profits they made as a result of that conduct. The current state of disgorgement is uncertain, marked by rising tension between limitations in recent Supreme Court jurisprudence and newly enacted statutory authority granted to the Securities Exchange Commission (SEC) by Congress. Problems emerging from this regime threaten to render adjudication of disgorgement actions ineffective and inconsistent, potentially damaging the integrity of the financial system and eroding public trust in the markets. A comprehensive legislative framework is needed to fill in the gaps; …

Equity In Legal Education, Deo, Meera E.

Santa Clara Law Review

The pandemic has brought to light myriad inequities, in legal education as elsewhere in society. Many of these barriers have existed for decades; while they have been exacerbated due to COVID, they will likely linger even as the pandemic subsides. This Article draws from both quantitative and qualitative data collected from students and faculty to reveal how the pandemic has heightened existing challenges in legal education, in particular ways and with distinctive effects on different populations. While inequities are a hallmark of legal education, the fissures and fault lines of these hierarchies have expanded during COVID. People of color, women, …

Misinformation And Covid-19, Reiss, Dorit R

Santa Clara Law Review

The COVID-19 pandemic’s impact on our world cannot be overstated. One of its noticeable features was the prominence of misinformation generally, and anti-vaccine misinformation more specifically. This article provides a breakdown of the five major themes of antivaccine misinformation and the way they were used to create fear, uncertainty, and doubt about COVID- 19 vaccines. Long before the pandemic, anti-vaccine activists argued using a five-part playbook. They argued that (1) vaccine preventable diseases were not really dangerous, (2) vaccines were dangerous and ineffective, (3) there were alternative treatments that were better than (dangerous and ineffective) vaccines, (4) there was a …

Leading Law Firms In The “New Normal”: Recovering From Crises Through Leadership Development, Polden, Donald J.

Santa Clara Law Review

Beginning in 2008, the first of three major crises hit the nation and had global implications and effects, including significant ones for the legal profession. Those crises were the financial crisis of 2008, followed by the social justice movements reflecting outrage at several highly-publicized police killings of Black men and women, and, most recently, the 2020-2022 COVID-19 pandemic. The crises created significant challenges for lawyers and legal institutions but they also created opportunities for enhanced access to justice, more efficient law organization practices, and new workplace requirements. The Article considers several difficult questions about where the legal profession is at …

Employers As Information Fiduciaries, Bodie, Matthew T.

Santa Clara Law Review

In order to better protect users from the predations of large tech companies amassing their data, commentators have argued that these companies should be considered information fiduciaries for the purposes of collection, use, storage, and disclosure of that data. This Essay considers the application of the “information fiduciary” label to employers in the context of employee data. Because employers are handling ever greater quantities of employee data, and because that data is becoming more sensitive and potentially damaging to workers if misused, the law should account for this expanded role with expanded protections. The beginnings of how such a set …

Gender Inequities, The Covid-19 Shecession, And The Need For A Conscious Transformation, Blassing, Marissa J.

Santa Clara Law Review

The recent COVID-19 pandemic demonstrated that new and acute burdens tend to fall on women in a time of crisis because society defaults to structural gender-normative roles. Even before the pandemic, women had a long history of facing structural inequities in the workplace and at home. Such inequities are fueled by implicit biases, expectations, and stereotypes. The fallout from the COVID-19 pandemic worsened gender inequities. For women, it disproportionately increased domestic obligations and it had a disproportionate effect on female-dominated occupations—threatening to roll back decades of progress.

This Article will discuss the problem of gender inequity in the workplace, the …

Finding Happiness In The Law: Lifelong Learning As A Path To Meaning And Purpose, Mamaysky, Isaac

Santa Clara Law Review

We begin with the premise that the happiest and most fulfilled attorneys are those who live a life of meaning and purpose. While many in the legal profession have achieved this goal, many others are unsatisfied with their career trajectories but feel, for a variety of reasons, that they aren’t empowered to make a change. Unfortunately, study after study finds that many attorneys are stressed and unhappy with their professional lives, and would even leave the law entirely if they could.

The Article argues that these attorneys have a far more dynamic set of options than simply leaving the profession …

Remote Law: The Great Resignation, Great Gigification, Portable Benefits, And The Overdue Reshuffling Of Work Policy, Lobel, Orly

Santa Clara Law Review

The shift to widespread remote work in 2020 during the COVID-19 pandemic accelerated changes to the labor market, including flexibility of time, place, and nature of traditional office jobs, and a steep rise in gig economy work. As vaccines became available and employers began to require their employees to return to in-person work, many employees instead chose to move to jobs with more competitive pay, more flexibility, and better remote work options. Now, law and policy must evolve to address this changing labor market, including the uncertainties and risks created by remote work. This Article identifies inequities that have deepened …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Sturm, Susan

Santa Clara Law Review

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must also collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues that these seemingly contradictory practices can be brought together through the theory and action of paradox. …

Growing Number Of Leadership Programs And Courses Supports Professional Identity Formation, Teague, Leah

Santa Clara Law Review

Through service and leadership, lawyers influence people and impact organizations and communities. Law students need to be aware of their opportunity for influence as part of their professional identity and they need to be prepared for the obligations of service that accompany the privilege of acquiring a law degree. The number of law schools with leadership development courses and programs has grown rapidly over the last ten years to: encourage law students to embrace their obligation to serve clients and society; better equip law students for positions of leadership and influence (including building relationships with clients); and inspire them to …

Infusing Leadership Competencies Into 1l Professional Identity Formation, Short, Aric K.

Santa Clara Law Review

Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their …

Academic Leadership Is A Full-Contact Sport: Reflections From A Law School Dean, Rooksby, Jacob H.

Santa Clara Law Review

Leadership in any setting is hard, often physically as well as emotionally. Academic leadership requires a full-dimensional, mind-body-soul effort that uniquely calls upon one’s baseline character, positionality, and preparation for leadership. Our willingness and ability to read the word as we also read the world combine to shape our approach and range as leaders. And ultimately, our legacy is our imprint on people. This article shares the views of a law school dean on how life experiences, leadership lessons, and book learning intertwine to inform our humanity and charter our influence on people and organizations.

Leadership To Address Implicit Bias In The Legal Profession, Polden, Donald J., Anderson, Jenna M.

Santa Clara Law Review

This Article discusses the problem of implicit bias within the legal profession; why its persistence impedes the work that lawyers do; and the need for leaders to take steps to recognize, understand, and ameliorate it. Implicit biases, also referred to as unconscious biases, are prejudices that people have, but are unaware of their existence. These biases act as mental shortcuts based on known stereotypes and social norms that cause people to make decisions that favor one group to the detriment of another. Even though the United States has laws prohibiting discrimination on the basis of race, religion, gender, and disability, …

Change Leadership And The Law School Curriculum, Heminway, Joan Macleod

Santa Clara Law Review

Change is ubiquitous, and lawyers, as trusted advisors to individuals and organizations, must acknowledge and address change. Moreover, as essential, everyday leaders in their many capacities (professional, community-related, and personal) they often find themselves leading change by design or by chance. Remarkably, however, lawyers have little awareness of or training in change leadership, long a mainstay in business management education and literature. Drawing from both this business academic and practice literature and the emergent literature on lawyer leadership, this article briefly makes a case for the purposeful teaching of change leadership across the law school curriculum.

Teaching And Assessing Active Listening As A Foundational Skill For Lawyers As Leaders, Counselors, Negotiators, And Advocates, Gustafson, Lindsey P., Short, Aric K., Hamilton, Neil W.

Santa Clara Law Review

Our students will be more effective leaders, counselors, negotiators, and advocates as they deepen their ability to actively listen. As a professional and interpersonal skill linked closely with a lawyer’s success, our students’ ability to listen should demand our attention as legal educators. This attention is worth the effort because studies indicate active listening is not a static ability: we can teach students to be better listeners. But “active listening” is missing from most law schools’ learning outcomes or curricula, or it is only included as an undefined element of effective communication. Consequently, it is a critical lawyering skill that …

Symposium On Lawyers, Leadership, And Change: Addressing Challenges And Opportunities In Unprecedented Times, Polden, Donald J.

Santa Clara Law Review

No abstract provided.

The Telephone Consumer Protection Act Of 1991: Adapting An “Odd” Law, Blasing, Marissa J.

Santa Clara Law Review

The Telephone Consumer Protection Act (“TCPA”) was introduced in 1991 before the rise of the cell phone, text messages, and broadband internet. It placed restrictions on then-contemporary technology used to reach consumers in an automated way and its primary purpose was to protect consumer’s privacy interests and public safety. Yet, it has proven to be an odd and increasingly outdated law. The federal government has made a good-faith effort to maintain the TCPA’s relevancy. However, evolving technology and inconsistent interpretations of the law’s fundamental elements have resulted in harm to consumers and businesses. During the COVID-19 pandemic, the law also …

Dmca § 1201: Effective Or Outdated?, Yazzolino, Sydney

Santa Clara Law Review

Creators have gone digital and so have copyrights. To combat rampant piracy, creators flock to digital rights management systems (DRM), which control user access to copyrighted material through technology. However, DRM can be bypassed, and file-sharing networks make it easy to distribute and download illegal copies. In response, Congress enacted the Digital Millennium Copyright Act (DMCA), which makes it illegal to circumvent digital rights management technologies. This Note will analyze the effectiveness of the DMCA in the light of DRM technology in 2022. Both copyright holders and users of the copyrighted works have legitimate concerns over how digital copyrights are …

Regulation Of Corporate Activity In The Space Sector, Kamalnath, Akshaya, Sarkar, Hitoishi

Santa Clara Law Review

This Article argues that commercialisation of space coupled with technological innovation calls for a regulatory approach beyond (and complementary to) the treaty regime offered by international law. The rapid technological advances in the financial sector and corresponding regulatory innovations make financial technology (fintech) regulation a likely candidate to draw lessons from for the nascent space sector. The Article draws from the fintech sector and proposes that some lessons about initial regulation via regulatory sandboxes and sandbox bridges are useful in the space sector. At the domestic level, the Article proposes regulatory sandboxes to enable innovation while ensuring the necessary safeguards; …

Measuring Police Body Camera Infrastructure, Coleman, Ronald J.

Santa Clara Law Review

Police body cameras have been in ascendancy since at least the 2014 deaths of Eric Garner and Michael Brown, and body cameras are poised to play an increasing role in law enforcement following the more recent deaths of George Floyd, Daunte Wright, and others. Indeed, President Biden, himself, has repeatedly called for the passage of the George Floyd Justice in Policing Act of 2021, which would require federal law enforcement officers to wear a body camera. Notwithstanding their ascendancy, important empirical questions on body cameras persist. For instance, do local law enforcement agencies have adequate infrastructure to support body camera …

The Patentability Of Separability: Designing A Test For “Article Of Manufacture” Identification In Section 289 Of The Patent Act, Wald, Samantha M.

Santa Clara Law Review

The U.S. Supreme Court’s decision in Samsung Electronics v. Apple Inc. regarding the meaning of the term “article of manufacture” in Section 289 of the Patent Act neglects to resolve foundational distinctions in the protected scope of multi-component devices. Cloaked in ambiguity, the Court’s brief and ostensibly limited opinion critically fails to demonstrate when the relevant “article of manufacture” should be treated as the whole commercial product or as some smaller unit; nor does it explain how to identify the relevant “article of manufacture” if it is less than the product as a whole. Instead, the Supreme Court’s dictionary-based definition …

Limiting Executive Branch Judo In Federal Stem Cell Research Policies And Regulations, Lau, Andrew

Santa Clara Law Review

Human embryonic stem cell research has tremendous potential for treating or curing many diseases that cause human suffering. Nevertheless, federal funding for stem cell research has had a controversial history in the United States. While many Americans believe that stem cell research will lead to the development of critical medical technology, others oppose it because of its association with abortion. These ethical issues have made stem cell research a prime target for political posturing, particularly because of how much power presidents have over stem cell research policies. By using vetoes, directives, or executive orders to manipulate stem cell policies, presidents …

California's Recall Is Not Overpowered, Carrillo, David A., Spivak, Joshua, Kaliss, Natalie, Madnick, Jared

Santa Clara Law Review

The recall is one of three direct democracy tools in California. Following the failed 2021 recall attempt against California Governor Gavin Newsom, the state recall process has been criticized for evolving beyond its intended purpose to the point of being overpowered and prone to abuse. After reviewing the recall’s original intent, we conduct a quantitative analysis of state and local recall attempts in California and compare this to other recall states. We conclude that the critique is unjustified. In California and elsewhere, state official recalls are frequently attempted but rarely qualify for the ballot, demonstrating that the existing recall system …