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Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh Jan 2014

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Faculty Scholarship

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by ...


Gender Diversity In The Patent Bar, Saurabh Vishnubhakat Jan 2014

Gender Diversity In The Patent Bar, Saurabh Vishnubhakat

Faculty Scholarship

This article describes the state of gender diversity across technology and geography within the U.S. patent bar. The findings rely on a new gender-matched dataset, the first public dataset of its kind, not only of all attorneys and agents registered to practice before the United States Patent and Trademark Office, but also of attorneys and agents on patents granted by the USPTO. To enable follow-on research, the article describes all data and methodology and offers suggestions for refinement. This study is timely in view of renewed interest about the participation of women in the U.S. innovation ecosystem, notably ...


The Strategic And Discursive Contributions Of The Max Planck Principles For Intellectual Property Provisions In Bilateral And Regional Agreements, Peter K. Yu Jan 2014

The Strategic And Discursive Contributions Of The Max Planck Principles For Intellectual Property Provisions In Bilateral And Regional Agreements, Peter K. Yu

Faculty Scholarship

In June 2013, the Max Planck Institute for Intellectual Property and Competition Law released its Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. Drafted by the Institute’s directors and research fellows in collaboration with a team of outside experts, this document seeks to facilitate the development of "international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international [intellectual property]."

This essay discusses the important contributions the Principles have made at both the strategic and discursive levels. It situates these two sets of contributions in the context of the ongoing challenges confronting ...


Encouraging The Development Of Low Bono Law Practices, Luz E. Herrera Jan 2014

Encouraging The Development Of Low Bono Law Practices, Luz E. Herrera

Faculty Scholarship

For decades, the discussion about access to justice has primarily focused on the ability of low–income individuals to obtain free representation by lawyers. Lawyer representation is the “gold star” of the legal profession and advocates of legal services for the poor have fought difficult battles to ensure the most disadvantaged in our country have access to these professionals. As a result, legal aid programs and pro bono services that assist the most economically disadvantaged in our country are now common in our legal service delivery system.

Despite those important efforts, only 50% of those eligible for free legal services ...


Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell Jan 2014

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real ...


Subprime Scriveners, Milan Markovic Jan 2014

Subprime Scriveners, Milan Markovic

Faculty Scholarship

Although mortgage-backed securities ('MBS") and other financial products that nearly caused the collapse of the global financial system could not have been issued without attorneys, the legal profession's role in the financial crisis has received relatively little scrutiny. This Article focuses on lawyers' preparation of MBS offering documents that misrepresented the lending practices of mortgage loan originators. While attorneys may not have known that many MBS would become toxic, they lacked incentives to inquire into the shoddy lending practices of prominent originators, such as Washington Mutual Bank ('WaMu"), when they and their clients were reaping considerable profits from MBS ...


Joint Ventures Of Nonprofits And For-Profits, Terri Lynn Helge Jan 2014

Joint Ventures Of Nonprofits And For-Profits, Terri Lynn Helge

Faculty Scholarship

This article summarizes special tax considerations that should be taken into account when for-profit parties seek to engage in joint ventures with charitable organizations. In particular, there are two areas of concern unique to charitable organizations with respect to joint ventures with for-profit parties. First, certain rules restrict or prohibit a charitable organization's ability to enter into transactions with insiders. Second, a charitable organizations' participation in a joint venture with a taxable party may cause the charitable organization to incur unrelated business taxable income or lose its tax-exempt status. Underlying both of these areas of concern is the overriding ...


Using The Theories Of Exit, Voice, Loyalty, And Procedural Justice To Reconceptualize Brazil's Rejection Of Bilateral Investment Treaties, Nancy A. Welsh, Andrea Kupfer Schneider, Kathryn Rimpfel Jan 2014

Using The Theories Of Exit, Voice, Loyalty, And Procedural Justice To Reconceptualize Brazil's Rejection Of Bilateral Investment Treaties, Nancy A. Welsh, Andrea Kupfer Schneider, Kathryn Rimpfel

Faculty Scholarship

In the past decade, investor-state arbitration has made tremendous gains in both credibility and use. There is now widespread accession to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention” or “Washington Convention”). States have executed more than 2,000 bilateral investment treaties (BITs) defining the terms and conditions under which one (“investor”) state’s nationals and companies will invest in the other (“host”) state. Such terms include provisions allowing foreign investors to initiate arbitration proceedings against the host state, and at this point, more than 500 disputes have been submitted to ...


Theory And Reality In Regulating Dispute Resolution (Book Review), Nancy A. Welsh Jan 2014

Theory And Reality In Regulating Dispute Resolution (Book Review), Nancy A. Welsh

Faculty Scholarship

Nancy Welsh reviews "Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads"


Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose Jan 2014

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Faculty Scholarship

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional ...


Tinkering With Success: College Athletes, Social Media And The First Amendment, Meg Penrose Jan 2014

Tinkering With Success: College Athletes, Social Media And The First Amendment, Meg Penrose

Faculty Scholarship

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes' social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author's opinion, these articles have lost perspective-constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.


Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf Jan 2014

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

Faculty Scholarship

Important strides are currently being made towards increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding like removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial of incompetent ...


Justice On The Fly: The Danger Of Errant Deportations, Fatma Marouf, Michael Kagan, Rebecca Gill Jan 2014

Justice On The Fly: The Danger Of Errant Deportations, Fatma Marouf, Michael Kagan, Rebecca Gill

Faculty Scholarship

The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the Court ...


Launching The Los Angeles Incubator Consortium, Laura Dym Cohen, Luz E. Herrera, William T. Tanner Jan 2014

Launching The Los Angeles Incubator Consortium, Laura Dym Cohen, Luz E. Herrera, William T. Tanner

Faculty Scholarship

This Article offers a snapshot of the initial two-month development process of a new law firm incubator program-the Los Angeles Incubator Consortium (LAIC). LAIC is a collaborative project of Pepperdine University School of Law, Southwestern Law School, and UCLA School of Law that was launched in collaboration with the Los Angeles Law Library and various local legal aid providers through seed funding from the California Commission on Access to Justice.14 Part II discusses the leadership role of California's Commission on Access to Justice in promoting incubators as models to increase the availability of affordable legal services for the ...


Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Nuno Garoupa, Jud Mathews Jan 2014

Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Nuno Garoupa, Jud Mathews

Faculty Scholarship

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.


Copyright's Mercantilist Turn, Glynn S. Lunny Jr Jan 2014

Copyright's Mercantilist Turn, Glynn S. Lunny Jr

Faculty Scholarship

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Unable to establish that broader copyright will lead to more or better original works, as the Constitution and the traditional economic framework require, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Rampant unauthorized copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. Whether or not it leads to more or better works, broader copyright will increase revenue to copyright owners and thus increase employment in the copyright industries. This increased employment, on its ...


The Right To Defense Discovery In Plea Bargaining Fifty Years After Brady V. Maryland, Cynthia Alkon Jan 2014

The Right To Defense Discovery In Plea Bargaining Fifty Years After Brady V. Maryland, Cynthia Alkon

Faculty Scholarship

Fifty years after Brady v. Maryland, defense attorneys around the United States continue to struggle to get basic information from prosecutors. This is even more of an issue in the ninety-four to ninety-seven percent of criminal cases that are resolved by guilty pleas. As the quote above illustrates, prosecutors can use discovery as leverage in the plea negotiation process. Unfortunately, the rule the Supreme Court established in Brady does little to prevent this kind of gamesmanship.

In Brady, the Court required the prosecution to turn over "evidence favorable to an accused . . . where the evidence is material either to guilt or ...


Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz Jan 2014

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Faculty Scholarship

Should employees have the legal right to "be themselves" at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee's gender, race, or religion? And what if the basis for the employer's workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social ...


Betty Boop And The Return Of Aesthetic Functionality: A Bitter Medicine Against "Mutant Copyrights"?, Irene Calboli Jan 2014

Betty Boop And The Return Of Aesthetic Functionality: A Bitter Medicine Against "Mutant Copyrights"?, Irene Calboli

Faculty Scholarship

This article offers a brief overview of the history and developments of the doctrine of aesthetic functionality in the United States and examines the recent decisions in Fleischer Studios, Inc v AVELA, Inc . In particular, the article argues that the courts in Fleischer added an important element to the interpretation of the doctrine, namely the fact that the courts seemed willing to resort to aesthetic functionality to counter the consequences resulting from the practice of using trade mark law as an additional form of protection for copyrighted, or once copyrighted, creative works.


On The Usefulness Of A Flat Economics To The World Of Faith, Andrew P. Morriss Jan 2014

On The Usefulness Of A Flat Economics To The World Of Faith, Andrew P. Morriss

Faculty Scholarship

Is economics unduly flat? Perhaps, sometimes. But part of the power of economics comes from the parsimony of its approach to human nature. If and when we search for more complex approaches, we will need to understand the tradeoffs involved in choosing between that power and simplicity and the alternatives. Rather than deepening our economics with faith, it may be that we are better off using a relatively flat economics to enrich religious understandings.


Progressive Property Moving Forward, Timothy M. Mulvaney Jan 2014

Progressive Property Moving Forward, Timothy M. Mulvaney

Faculty Scholarship

In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,” Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in ...


Policing Terrorists In The Community, Sahar F. Aziz Jan 2014

Policing Terrorists In The Community, Sahar F. Aziz

Faculty Scholarship

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to stop terrorism before it occurs. Towards that end, community policing, developed in the 1990s to combat violent crime in inner city communities, is being adopted as a means of collaborating with Muslim communities and local police to combat "Islamist homegrown terrorism." Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among local law enforcement and the ...


One Worldwide Set Of Global Accounting Standards - Hmm, Neal F. Newman Jan 2014

One Worldwide Set Of Global Accounting Standards - Hmm, Neal F. Newman

Faculty Scholarship

An effort is currently underway that involves a monumental shift in the way accounting and financial information is reported. In progress is an endeavor to move provinces around the world onto one single set of global accounting standards. The body leading this effort is the International Accounting Standards Board ("IASB"), a London-based independent agency. The accounting regime being proposed is referred to as International Financial Reporting Standards ("IFRS"). The stated rationale behind this global effort is one of comparability and uniformity (i.e., all economies around the world speaking one accounting language).

This paper examines the contemplated worldwide adoption of ...


Hydropower: Time For A Small Makeover, Gina S. Warren Jan 2014

Hydropower: Time For A Small Makeover, Gina S. Warren

Faculty Scholarship

Over the last several years, hydropower has supplied between 6 and 8 percent of the electricity consumed in the United States. It is the most abundant, most efficient, and least expensive source of renewable electricity generation on earth.Yet, when most people think of hydropower they think of huge dams, dead fish, and a destroyed environment. Unfortunately, this perception has on too many occasions been a reality. Hydropower needs a new PR department. It is time for a "small" makeover.

To embrace the full potential of sustainable hydropower, investors and regulatory agencies must look to develop small, localized facilities on ...


Introduction, Symposium Lsu J. Energy L. & Resources, Roger Meiners, Andrew P. Morriss Jan 2014

Introduction, Symposium Lsu J. Energy L. & Resources, Roger Meiners, Andrew P. Morriss

Faculty Scholarship

The intersection of property rights and energy resource development is an increasingly important, and contentious, area of the law. From local fracking ordinances to federal overrides of state sovereignty in permitting multistate infrastructure projects, the law is in flux. In this symposium, a group of lawyers, law professors, and economists were gathered to look at some of these issues.


Protecting Consumers From Zombie-Debt Collectors, Neil L. Sobol Jan 2014

Protecting Consumers From Zombie-Debt Collectors, Neil L. Sobol

Faculty Scholarship

By obtaining judgments, or persuading consumers to pay a portion of these debts, acknowledge these debts, or enter into new agreements, collectors can resurrect and enforce dead or non-existent debts. The media has labeled these resurrected debts as "zombie debts." Just as the zombies in movies come back from the dead to terrorize individuals, dead debts may resurface to wreak havoc on consumers. Even if a consumer successfully defeats one zombie-debt collector, the process may restart if the debt is resold.

Legal scholarship has only begun to address zombie-debt issues, and has primarily focused on litigation. However, collectors are often ...


The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney Jan 2014

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

Faculty Scholarship

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm's compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits "to merge good ethics and good business" in the U.S.


Executive Summary (2014), Gina S. Warren Jan 2014

Executive Summary (2014), Gina S. Warren

Faculty Scholarship

This year's Survey on Oil & Gas includes summaries from thirty-five states. These summaries paint a picture of the various oil and gas activities across the many states. As with the last several years, hydraulic fracturing (or "fracking") remains in the spotlight, with two prominent issues coming to the forefront. The first issue is the continuing tug-of-war between state oil and gas acts and local and city ordinances attempting to regulate fracking activities. The second issue many states are wrestling with is the management of fracking wastewater.


International Criminal Trials And The Disqualification Of Judges On The Basis Of Nationality, Milan Markovic Jan 2014

International Criminal Trials And The Disqualification Of Judges On The Basis Of Nationality, Milan Markovic

Faculty Scholarship

Judges who sit on the International Criminal Court (“ICC”) and other international criminal tribunals (“ICTs”) are nationals of particular states and are elected to serve largely on the basis of nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judge’s performance of his or her duties.

This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of ...


New Beginnings: Texas A&M University School Of Law Has The Noble Charge Of Being Texas's First Public Law School In The Dallas-Fort Worth Metroplex, Aric K. Short Jan 2014

New Beginnings: Texas A&M University School Of Law Has The Noble Charge Of Being Texas's First Public Law School In The Dallas-Fort Worth Metroplex, Aric K. Short

Faculty Scholarship

On the evening of Aug. 12, 2013, the doors to Texas Wesleyan University School of Law in downtown Fort Worth closed for a final time. The following morning, those same doors opened, and Texas A&M University School of Law began operations. During the next week, the school welcomed 250 1Ls to orientation, and fall classes began for all 770 students.

For Aggies, this transition in ownership capped a decades-long effort to bring a law school to Texas A&M University. For those of us at the law school, Aug. 13 concluded a busy and challenging year laying the foundation ...