Law Commons^™

The Promise Of Patent-Backed Finance For Smes And Universities, And Shifting Patent Eligible Subject Matter, Michael S. Mireles, Mattias Karlsson Dinnetz

McGeorge School of Law Scholarly Articles

This Article reviews and addresses some of the problems concerning adequate capital to develop patented inventions and products, and inhibiting the widespread use of patents to raise financing.

The Article divides the IP finance market into three separate, but interrelated markets and analyzes problems, including U.S. patent-eligible subject matter doctrine, within those markets impeding patent backed financing. The Article provides numerous proposals, some of which are in the literature, and calls for additional research for addressing the issues.

Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka

McGeorge School of Law Scholarly Articles

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …

Statutory Interpretation From The Outside, Kevin Tobia, Victoria Nourse, Brian G. Slocum

McGeorge School of Law Scholarly Articles

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

The Complex Dualisms Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy. This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy, …

The Constitutional Right To “Establish A Home", John G. Sprankling

McGeorge School of Law Scholarly Articles

Everyone needs a home. But exclusionary zoning ordinances in many communities prevent low-income and moderate-income families from securing affordable homes, disproportionately harming people of color. Because these ordinances satisfy the rational basis test, they have been immune from substantive due process attack. This Article provides a new method to challenge the constitutionality of exclusionary zoning.

For decades, the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects the right to “establish a home.” The Clause was adopted, in part, as a response to the “Black Codes” enacted by southern states in the post-Civil War era …

Trump’S Legacy: The Long-Term Risks To American Democracy, Michael Vitiello

McGeorge School of Law Scholarly Articles

While President Trump was extreme in his contempt for legal and political norms, his presidency was consistent with the direction in which the Republican Party has moved over the past several decades. Strategies put in place by Trump and other Republicans, along with institutional aspects of our country’s “democracy,” assure the Republican Party’s continued, outsized controll despite Trump’s failure to achieve a second term.

This Article reviews Trump and his Administration’s contempt for political norms, explores the Republican Party’s hard turn to the right, and discusses how the Republicans have been able to hold onto power greater than one would …

'Freedom's Just Another Word For Nothin' Left To Lose': The Ongoing Struggle To Properly Regulate The Gig Economy In California, Francis J. Mootz Iii, Jeffrey Michael

McGeorge School of Law Scholarly Articles

No abstract provided.

Expanding Statutes Of Limitations For Sex Crimes: Bad Public Policy, Michael Vitiello

McGeorge School of Law Scholarly Articles

The Victims’ Rights Movement has been one of the most consequential political forces in the United States over the past fifty-plus years. It has scored major legislative victories across the country. Every state and the federal government have adopted major laws advanced by the movement. After years of expanding prison populations, many policymakers and scholars have begun to question the wisdom of many of the movement’s legislative victories.

Despite current pushback against the movement, the movement and members of the public are pushing for the elimination or dramatic extensions of statutes of limitations for sex offenses and child-sex offenses. Such …

Leading Law Schools: Relationships, Influence, And Negotiation, Michael T. Colatrella Jr.

McGeorge School of Law Scholarly Articles

No abstract provided.

Victim Blaming: When Is It Legally Appropriate?, Michael Vitiello

McGeorge School of Law Scholarly Articles

Victim blaming: what person or justice system possessing a modicum of compassion could perpetuate harmful stereotypes and blame crime victims for what happened to them? In effect, this article explores that question. Rephrased, this article attempts to explain the focus on a victim's conduct when it is consistent with long-held principles of criminal law, with relevant comparisons made to tort law. Criminal law often makes a victim's conduct relevant to elements of a claim or defense. The topic is of special importance in an era of devastating attacks on social media and challenging subject matter such as sexual assault and …

The Yin And Yang Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy.

This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy, …

The Irrelevance Of Contemporary Academic Philosophy For Law: Recovering The Rhetorical Tradition / A Irrelevância Da Filosofia Acadêmica Contemporânea Para O Direito: Redescobrindo A Tradição Retórica, Francis J. Mootz

McGeorge School of Law Scholarly Articles

This short essay was published as part of a volume celebrating the 75th Anniversary of Karl Llewellyn’s article “On Philosophy in American Law.” The author argues that academic philosophy is irrelevant to lawyers, and that lawyers have little use for philosophical inquiry. This situation can be corrected by returning to the rhetorical and hermeneutical features of legal practice and reclaiming these ancient traditions of philosophical thought.

Este breve ensaio foi originalmente publicado como parte de uma obra em celebração ao aniversário de 75 anos do artigo “On Philosophy in American Law” de Karl Llewellyn. Argumenta-se que a filosofia acadêmica é …

Implementing Ecosystem-Based Management, Brian Gray, Jennifer L. Harder, Karrigan Bork

McGeorge School of Law Scholarly Articles

Most freshwater ecosystems in the United States are in a state of collapse. Existing management efforts take a piecemeal approach, addressing individual stressors, managing the systems for individual benefits, and protecting individual species. These disjointed efforts are doomed to fail. Both the legal literature and the scientific literature are rich with articles extolling the advantages of ecosystem-based management; that is, simultaneous management of water, land, and organisms to achieve a desired ecosystem condition benefiting both native biodiversity and human well-being. This approach has succeeded in other aquatic systems, particularly marine ecosystems, but the ecosystem-based management approach has struggled for adoption …

What I Learned About Teaching Law By Being An Art Student, Michael T. Colatrella

McGeorge School of Law Scholarly Articles

When was the last time you learned a skill? I’m not referring to the time your twelve-year-old daughter taught you how to use the latest social media platform. I mean when was the last time you learned to do something that takes months or years of concerted effort to reach a level of competence? A few years ago, I did just that. I learned to draw and paint. My goal was not to be a professional artist. My goal was to become competent in drawing and painting for pleasure. As with many of us, drawing and painting were parts of …

Miranda Is Dead. Long Live Miranda, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Abortion Privilege, Ederlina Co

McGeorge School of Law Scholarly Articles

This Article launches a critical dialogue about the abortion privilege. On the one hand, most abortion patients are low income or live below the poverty line and are disproportionately women of color. Many of these patients encounter multiple restrictions on abortion and must travel lengthy distances to abortion care facilities. These patients take center stage in abortion rights cases and in abortion rights discourse. On the other hand, there is a smaller but not insignificant group of abortion patients for whom abortion care is paid for by private or public health insurance or available out-of-pocket funds. Many of these patients …

The Warren Court’S Eyewitness Identification Case Law: What If?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Introduction: Changing Regulation Of Pharmaceuticals: Issues In Pricing, Intellectual Property, Trade And Ethics, Michael S. Mireles

McGeorge School of Law Scholarly Articles

No abstract provided.

The Complexity Dilemma: A Reflection On Teaching A Simulation Course In Business Planning, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

The Victim Impact Statements: Skewing Criminal Justice Away From First Principles, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Arnold Loewy, Ernesto Miranda, Earl Warren, And Donald Trump: Confessions And The Fifth Amendment, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Bathrooms As A Homeless Rights Issue, Ron S. Hochbaum

McGeorge School of Law Scholarly Articles

Bathrooms are a bellwether of equality. Segregated bathrooms were at the center of the Civil Rights Movement. Accessible bathrooms were at the heart of the Disability Rights Movement. Now, gender-neutral bathrooms or bathrooms assigned by gender, rather than sex, are at the heart of the Transgender Rights Movement.

This Article is the first to examine the right to access bathrooms as it relates to the homeless community. The Article explores the current paradox where cities, counties, and states provide few, if any, public bathrooms for the homeless community and the public at large while criminalizing public urination and defecation.

To …

Due Process And The Myth Of Sovereignty, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Introduction: Posner By The Numbers, Michael P. Malloy

McGeorge School of Law Scholarly Articles

No abstract provided.

Extraterritoriality And The Fourth Restatement Of Foreign Relations Law: Opportunities Lost, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

The Tax Law And Policy Of Natural Disasters, Christine Manolakas

McGeorge School of Law Scholarly Articles

Natural disasters result in untold human suffering and economic loss. In addition to possible physical injury and loss of life, the futures of the individuals involved are forever altered. Homes and neighborhoods are destroyed, families and communities are dislocated, and jobs and businesses are jeopardized. Unconscionably, Tax Cuts and Jobs Act of 2017 further diminished the already inadequate tax relief available for the damage or destruction of personal-use property caused by casualty events. Following a general discussion of the tax laws applicable to casualty losses, including changes made by the Tax Cuts and Jobs Act of 2017, this article surveys …

No Longer Immune? How Network Theory Decodes Normative Shifts In Personal Immunity For Heads Of State, Nadia Banteka

McGeorge School of Law Scholarly Articles

The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity movements, coupled with pleas for international criminal responsibility for egregious human rights and humanitarian violations, have eroded them, particulary within international jurisdictions. These changes reflect a larger challenge to the traditional statecentric model. Although states remain the primary makers of international law, many other participants, including international organizations, courts, and non-governmental oganizations (NGOs), are crucial to the development of international legal norms …

Cannabis Insurance, Francis J. Mootz Iii, Jason Horst

McGeorge School of Law Scholarly Articles

Although many states have decriminalized or legalized cannabis, it remains a Schedule 1 drug under the federal Controlled Substances Act. The conflict between federal and state law presents many complicated issues, including problems relating to insurance coverage. Insurance law seeks to balance competing policy interests. On one hand, public policy supports reading insurance policies broadly to indemnify policyholders for their losses. On the other hand, public policy counsels against permitting insurance to indemnify (federally) illegal activity. In this Article, we explore some pressing issues arising from the conflict between these policy considerations and offer some analysis of the conflict in …

Cannabis And The California Workplace, Francis J. Mootz Iii, Meghan Shiner

McGeorge School of Law Scholarly Articles

No abstract provided.

Legalizing Marijuana: Lessons From The United States, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.