Law Commons^™

Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Articles

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time, however, feminism’s influence waned as …

Japan’S Adr System For Resolving Nuclear Power-Related Damage Disputes, Daniel H. Foote

Articles

This paper has dual aims. First, it introduces the Nuclear Power-Related Damage Claim Resolution Center, established in 2011 to handle disputes arising out of the March 2011 meltdown at the Fukushima Daiichi nuclear power plant. After first examining the genesis of that Center, this paper describes its structure and roles and discusses its performance, including the challenges it has faced and the accomplishments it has achieved. Second, this paper seeks to place that Center into the broader context of the overall development of alternative dispute resolution (ADR) in Japan and to assess its impact. Two major themes recur throughout this …

Judging Congressional Elections, Lisa Marshall Manheim

Articles

This Article reveals what passes as federal constitutional law in this area: a chaotic set of ad hoc, state-based interpretations that vary drastically by jurisdiction. Some states, for example, have interpreted Article I, Section 5 to permit courts to adjudicate congressional election contests. Others have concluded the opposite. Through such conflicting interpretations, state courts have contributed to a deep, intractable split on the provision's meaning and reach.

State legislatures have compounded the discord by enacting statutes that codify their interpretations, a move that renders their constitutional determinations practically unreviewable. Meanwhile, both Houses of Congress continue to adjudicate these congressional election …

The Worst System Of Citation Except For All The Others, David J.S. Ziff

Articles

Now in its twentieth edition, The Bluebook continues to cast its shadow over the legal profession just as it has for almost 100 years, helping legal writers format their references to authorities in briefs, memoranda, opinions, and law review articles. Previous critiques have offered various theories for why, despite its problems, The Bluebook remains the standard for legal citation. Ivy League elitism, the first-mover advantage, and lawyers’ conservative preference for the status quo have all been offered to explain the seemingly inexplicable: If this system is so terrible, then why are we still stuck with it?

One potential answer to …

Foreword: A ‘Coyote Warrior’ And The ‘Great Paradoxes,’ The Scholarship Of Professor Raymond Cross, Monte Mills

Articles

This Foreword to the Public Land and Resources Law Review special issue republishing and celebrating the scholarship of Professor Raymond Cross provides a context and framework for understanding and appreciating the issue's articles. The Foreword reviews Professor Cross' legacy of work as a tribal attorney on behalf of the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) of the Fort Berthold Reservation and discusses the important contributions his scholarly work continue to make to the field of Federal Indian Law. As noted at the conclusion of the Foreword, "[i]t is a true honor to introduce and present some of his important …

Cohabiting With Property In Washington: Washington's Committed Intimate Relationship Doctrine, Tom Andrews

Articles

Washington has followed a community property system since at least 1869—twenty years prior to statehood. However, Washington rejected the doctrine of common law marriage quite early in 1892. For over one hundred years, in order to receive the advantages of the community property laws, a Washington couple has needed to have their relationship blessed with a ceremonial marriage or have a valid common law marriage in another state.

Accompanying these requirements for the formal establishment of a community property regime was the so-called "Creasman Presumption," which provided that "property acquired by a man and a woman not married to each …

A Transactional Theory Of The Reader In Copyright Law, Zahr K. Said

Articles

Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading—or viewing, or listening—plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a …

Electoral Evidence, Peter Nicolas

Articles

Each year, millions of Americans cast votes for specific candidates or on specific ballot measures. Each such vote generates potential "electoral evidence," the admissibility of which may be the subject of dispute in subsequent litigation. The evidence may take various forms, including the marked ballot itself, a voter's testimony regarding her vote, or her written or oral statements regarding her vote.

Electoral evidence is most commonly offered in litigation over the election outcome itself, with the parties seeking to determine how certain individuals voted to resolve a close election. However, its potential relevance is not limited to such proceedings. It …

Is There A Right To Be Free From Corruption?, Anita Ramasastry

Articles

Scholars and policymakers have, for some time, focused on the link between corruption and human rights. This has been to illustrate that corruption is not a victimless crime. While this has publicized the impact of corruption on individuals and on society, it has not changed the lack of political will to prosecute many instances of corruption. Thus citizens often stand by as their leaders plunder national treasuries. Rather than focusing solely on human rights, or trying to create a new “human right” to be free from corruption, this article explores the right to a legal remedy for victims of corruption …

Standards Of Review In Law And Sports: How Instant Replay's Asymmetric Burdens Subvert Accuracy And Justice, Steve P. Calandrillo, Joseph Davison

Articles

A fundamental tension exists in both law and sports: on one hand, adjudicators must “get the decision right” in order to provide fairness to the parties involved, but on the other, they must issue speedy and certain rulings to avoid delaying justice. The certainty principle dictates that courts follow stare decisis in the law even if they believe that an earlier decision was wrong. However, it is often the case that there is a need to reverse earlier decisions or the law itself in order to make the correct call on appeal.

Both law and sports are constantly balancing the …

Industry Lobbying And "Interest Blind" Access Norms At International Organizations, Melissa J. Durkee

Articles

The standard approach of international organizations (IOs) makes no formal distinctions between nonprofit private sector associations, known as trade or industry groups, and public interest groups like Amnesty International or Greenpeace. After all, these groups are all organized as nonprofits; they may all be characterized as nongovernmental organizations representing the interests of their memberships; and the groups all seek to advance the agendas of members by offering ideas and expertise to international officials or bodies—classic lobbying activity. Thus, most IOs offer accreditation and access to both private sector and public interest groups on equal terms, without differentiating between them. I …

Postpartum Taxation And The Squeezed Out Mom, Shannon Weeks Mccormack

Articles

Faced with too-short (or nonexistent) maternity leaves, inflexible work schedules, and the soaring costs of childcare in the United States, many new mothers temporarily leave the workforce to care for their young children. Although media attention has focused on the “opt-out” mom, many more mothers are squeezed out of the external workplace. But mothers that try to return to work may discover that it is difficult to do so, as employers have been shown to be less likely to hire mothers than others. A mother that does reenter may find that even short periods out of work cost (sometimes far) …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

Articles

The federal government’s trust relationship with federally recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

Zombie Patents And Zombie Companies With Patents, Xuan-Thao Nguyen

Articles

While a zombie is the undead and has no expiration, patents do. A patent comes into existence the moment the government, through the United States Patent and Trademark Office (USPTO), examines the invention application and issues a grant of patent. From that birth, a patent will have a lifetime of only twenty years from the date of filing the application. Patents expire and have no life after the twenty-year period.

Some patents die when the patentees abandon them by not paying maintenance fees. Dead patents must remain dead and become part of the public domain. Unfortunately, this Essay observes that …

The Taking Economy: Uber, Information, And Power, Ryan Calo, Alex Rosenblat

Articles

Sharing economy firms such as Uber and Airbnb facilitate trusted transactions between strangers on digital platforms. This creates economic and other value but raises concerns around racial bias, safety, and fairness to competitors and workers that legal scholarship has begun to address. Missing from the literature, however, is a fundamental critique of the sharing economy grounded in asymmetries of information and power.

This Essay, coauthored by a law professor and a technology ethnographer who studies work, labor, and technology, furnishes such a critique and proposes a meaningful response through updates to consumer protection law. Commercial firms have long used what …

Regulating Cumulative Risk, Sanne H. Knudsen

Articles

This Article proceeds in four parts. Part I describes how cumulative risk assessments tackle the real-world exposure problems that lie at the heart of public health. It shows how risk science has evolved and why policy, not science, lags behind. Part II then examines why key public health concerns cannot be answered through information disclosure or consumer choice models alone.

Having established that regulatory drivers are needed, Part III begins to examine how to move forward. It does so by looking backward and examining how TSCA and FIFRA have failed historically to provide this critical public health focus despite room …

The Other Securities Regulator: A Case Study In Regulatory Damage, Anita K. Krug

Articles

Although the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in securities regulation. It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the DOL used its securities regulatory authority to adopt a rule that, for the first time, designates securities brokers who provide investment advice to retirement investors as fiduciaries subject to ERISA's stringent transaction prohibitions. The new rule's objective is salutary, to be sure. However this Article shows that, …

Astroturf Activism, Melissa J. Durkee

Articles

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law.

This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

Hacking Qualified Immunity: Camera Power And Civil Rights Settlements, Mary D. Fan

Articles

Excessive force cases are intensely fact-specific. Did the suspect resist, necessitating the use offorce? What threat did the suspect pose, if any? Was the use of force excessive in light of the situation? These are judgment calls based on myriad facts that differ from case to case. Establishing what really happened forces courts and juries to wade into a fact-bound morass filled with fiercely conflicting defendant-said, police-said battles.

Now an evidentiary transformation is underway. We are in an era where the probability of a police encounter being recorded has never been higher. With the rise of recording—by the public as …

The Advent Of Lawyers In Japanese Government, Daniel H. Foote

Articles

Until 2003, Japanese lawyers were prohibited by law from entering full-time employment in governmental bodies. That year, in line with recommendations by the Justice System Reform Council, the Lawyers Act was amended to permit lawyers to undertake such employment. Incorporating information and insights from interviews with former government lawyers and other concerned parties, this article examines the rise in the hiring of government lawyers and its impact. The article considers factors that have contributed to the increase, examines the roles played by these lawyers, considers prospects for the future, and discusses implications for government, the legal profession, clients, and legal …

Backdating Marriage, Peter Nicolas

Articles

Many same-sex couples have been in committed relationships for years, even decades. Yet until 2004 no same-sex couples in the United States had the right to marry in any state and until the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges the right was unavailable to same-sex couples nationwide. Due to this longstanding denial of the right to marry, most same-sex relationships appear artificially short when measured solely by reference to the couple's civil marriage date.

This circumstance has important legal consequences for many same-sex couples, as a number of rights associated with marriage are tied not merely to …

Missing Police Body Camera Videos: Remedies, Evidentiary Fairness, And Automatic Activation, Mary D. Fan

Articles

A movement toward police regulation by recording is sweeping the nation. Responding to calls for accountability, transparency and better evidence, departments have rapidly adopted body cameras. Recording policies require the police to record more law enforcement encounters than ever before. But what happens if officers do not record? This is an important, growing area of controversy. Based on the collection and coding of police department body camera policies, this Article reveals widespread detection and enforcement gaps regarding failures to record as required. More than half of the major-city departments in the sample have no provisions specifying consequences for not recording …

Introductory Essay: Catastrophe Thinking, Fast And Slow, Todd A. Wildermuth

Articles

No abstract provided.

Privacy, Vulnerability, And Affordance, Ryan Calo

Articles

This essay begins to unpack the complex, sometimes contradictory relationship between privacy and vulnerability. I begin by exploring how the law conceives of vulnerability — essentially, as a binary status meriting special consideration where present. Recent literature recognizes vulnerability not as a status but as a state — a dynamic and manipulable condition that everyone experiences to different degrees and at different times. I then discuss various ways in which vulnerability and privacy intersect. I introduce an analytic distinction between vulnerability rendering, i.e., making a person more vulnerable, and the exploitation of vulnerability whether manufactured or native. I also describe …

Artificial Intelligence Policy: A Primer And Roadmap, Ryan Calo

Articles

Talk of artificial intelligence is everywhere. People marvel at the capacity of machines to translate any language and master any game. Others condemn the use of secret algorithms to sentence criminal defendants or recoil at the prospect of machines gunning for blue, pink, and white-collar jobs. Some worry aloud that artificial intelligence will be humankind’s “final invention.” This essay, prepared in connection with UC Davis Law Review's 50th anniversary symposium, explains why AI is suddenly on everyone's mind and provides a roadmap to the major policy questions AI raises. The essay is designed to help policymakers, investors, technologists, scholars, and …

Model Rule 5.7 And Lawyers In Government Jobs - How Can They Ever Be Non-Lawyers, Hugh D. Spitzer

Articles

This article focuses on the application of the Rules of Professional Conduct to licensed attorneys who serve in non-lawyer jobs in government. There is a fair amount of literature about members of the bar who serve as staff counsel in legislatures or executive agencies. There is also literature on Rule 5.7 of the ABA Model Rules of Professional Conduct (“Responsibilities Regarding Law-related Services”) in the context of practicing lawyers who participate in ancillary “non-lawyering” business activities. Model Rule 5.7 deals with “services that might reasonably be performed” or “are related to the provision of legal services” but which are permitted …

Justice Visualized: Courts And The Body Camera Revolution, Mary D. Fan

Articles

What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story—or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception.

Now a revolution is coming. Across the nation, police departments are deploying body cameras. Analyzing body camera policies from police departments across the nation, the article reveals an unfolding future where much of the main staple events of criminal procedure law will be recorded. Much of the current focus is on …

Making The Minimum Wage Work: An Examination Of The Economic Impact Of The Minimum Wage, Steve P. Calandrillo, Taylor Halperin

Articles

With the passage of the Fair Labor Standards Act in 1938, Congress mandated a federal “living wage” in order to “maintain the minimum standard of living necessary for the health, efficiency, and general well-being of workers.” Advocates have long insisted that increases in the minimum wage result in a net gain to employees’ standard of living. Critics have countered that those gains come at the expense of higher prices and shrinking overall employment numbers, leaving a new class of potential workers out in the cold.

This Article synthesizes the empirical economic impact data from minimum wage increases over the past …

The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles

Articles

In an era of pioneering environmental and land use laws, savvy developers are using the “vested rights” doctrine to circumvent and undermine critical public health, safety, and environmental regulations. This controversy pits two legitimate interests against each other: On the one hand, local governments must have the power to pass land use laws and regulations in the public interest to protect their community’s health, safety, welfare, and environment. On the other, developers who rely on the laws in existence at the time their project is approved should be protected from subsequent changes to the law that could increase transactional costs …