Law Commons^™

A Crumbling Pyramid: How The Evolving Jurisprudence Defining “Employee” Under The Adea Threatens The Basic Structure Of The Modern Large Law Firm, Jessica Fink

Faculty Scholarship

Part I of this article describes the legal framework for analyzing whether a partner can sue under the Age Discrimination in Employment Act ("ADEA"), focusing on two fairly recent decisions in this area: (i) The U.S. Supreme Court's 2003 decision in Clackamas Gastroenterology Assoc., P.C. v. Wells, a case in which the Court had to determine whether director-shareholder physicians in a medical clinic should be deemed employees for purposes of the Americans with Disabilities Act ("ADA"); and (ii) the Seventh Circuit's 2002 decision in a lawsuit brought by the Equal Employment Opportunity Commission ("EEOC") against the law firm Sidley & …

Will Americans Embrace Single-Payer Health Insurance: The Intractable Barriers Of Inertia, Free Market And Culture, Susan A. Channick

Faculty Scholarship

In a country that prides itself on equality of opportunity, why is there so little equality when it comes to healthcare? Why does the value of equality of opportunity not translate into social solidarity? This Article seeks answers to these questions. Risking the label of socialist, I posit that the most cost-effective, efficacious, and efficient solution to the health care mess that the United States is in is universal single-payer reform with the federal government as that payer.

Part I examines the United States' current climate as it affects health care reform. In Part II, this Article scrutinizes recent state …

The California Public Defender: Its Origins, Evolution And Decline, Laurence A. Benner

Faculty Scholarship

No abstract provided.

Foundations: The Public Domain And Natural Resources Law 1785 - 1960, Richard J. Finkmoore

Faculty Scholarship

No abstract provided.

Removing The Blindfold And Tipping The Scales: The Unintended Lesson Of Ashcroft V. Iqbal Is That Frivolous Lawsuits May Be Important To Our Nation, Kenneth S. Klein

Faculty Scholarship

This Article questions whether the gain of curbing perceived frivolous litigation is worth the cost of undermining the core civic value of neutrality of justice. In Ashcroft v. Iqbal, the Supreme Court weighed in on the public debate about frivolous litigation. The lqbal opinion is essentially a memorandum by the Supreme Court written to the trial judges of America, encouraging these judges to aggressively, indeed very aggressively, identify and dismiss potentially frivolous civil complaints. That leeway-wrapped mandate comes at a cost. A cornerstone of our civic philosophy is that the judicial branch, as a general proposition, is a neutral …

Why Appellate Courts Have Rejected The Argument That The Defense Of Marriage Act Trumps The Parental Kidnapping Prevention Act, Barbara Cox

Faculty Scholarship

The author seeks to explain why courts should not be permitted to interpret the Defense of Marriage Act (DOMA) to displace judgment recognition based on a forum state's public policy against legal relationships for same-sex couples. If courts interpret DOMA in this manner, nothing would prevent Congress from exempting other types of judgments from the protection of the Full Faith and Credit clause, thereby permitting relitigation of judgments that are now considered final and binding in every state.

"And I Don't Know Why It Is That You Threw Your Life Away": Abolishing Life Without Parole, The Supreme Court In Graham V. Florida Now Requires States To Give Juveniles Hope For A Second Chance, Leslie Culver

Faculty Scholarship

Terrance Graham pled guilty to armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. He was sentenced to prison for the rest of his life. Like Roe v. Wade made history by forcing this country to consider the morality of abortion, so too will the United States Supreme Court's decision in Graham v. Florida make history by challenging the morality of sentencing juveniles for the rest of their lives. After firmly abolishing the death penalty for all juvenile offenders under the age of eighteen, as a violation of the Eighth Amendment's Cruel and …

Resistance, “Revolution,” And Reassessment 1981 - 1997, Richard J. Finkmoore

Faculty Scholarship

No abstract provided.

Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax

Faculty Scholarship

The goals of this Article are two-fold: (1) to explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research; and (2) to demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate that pharmacist conscience clauses are a part of tort law and …

Drug Testing Students In California – Does It Violate The State Constitution?, Floralynn Einesman

Faculty Scholarship

The Department of Education has granted federal funds to California school districts for the purpose of initiating and maintaining drug-testing programs for students and volunteers involved in athletics and extracurricular activities, yet no California court has fully examined these programs to determine their validity under the California Constitution. Before any additional California schools adopt drug-testing programs, the legality of these programs should be examined under the California Constitution. This Article seeks to accomplish that task. Part II summarizes the United States Supreme Court decisions on student drug testing. Part III examines state law on student drug testing. Part IV focuses …

Teaching Interdisciplinary Collaboration: Theory, Practice, And Assessment, Linda Morton, Howard Taras, Vivian Reznik

Faculty Scholarship

In this article, we offer our own theory-based methodology for teaching interprofessional collaboration to law students and we present our preliminary data on its effectiveness. Part I explicates the definition and development of interdisciplinary collaboration. Part II describes how we have grounded our course in current theory, and Part III explains the extent to which our efforts have been successful. Finally, in Part IV, we offer additional thoughts regarding the teaching of interdisciplinary collaboration and pose questions and ideas for future data collection.

View From The Trenches: The Struggle To Free William Richards, Jan Stiglitz

Faculty Scholarship

This article discusses the circumstantial evidence against a wrongly convicted man and the California Innocence Project's efforts to seek his release.

Arbitration's Summer Soldiers Marching Into Fall: Another Look At Eisenberg, Miller, And Sherwin's Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Nancy Kim

Faculty Scholarship

Our empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in …

Is Ashcroft V. Iqbal The Death (Finally) Of The “Historical Test” For Interpreting The Seventh Amendment?, Kenneth S. Klein

Faculty Scholarship

There is the possibility that the recent Supreme Court decision of Ashcroft v. Iqbal finally will be the necessary impetus to revisit one of the more bizarre but enduring canards of American jurisprudence -- the way we interpret the Seventh Amendment's preservation of a right to a jury trial in federal civil litigation. The Seventh Amendment provides that "[i]n suits at common law ... the right of trial by jury shall be preserved." To this day, the way we apply the Seventh Amendment-in other words, what we interpret to be the constitutional intent and mandate of our Founders-is to postulate …

Expanding The Scope Of The Principles Of The Law Of Software Contracts To Include Digital Content, Nancy Kim

Faculty Scholarship

The Principles of the Law of Software Contracts, or the "Principles," seek to "unify and clarify" the law of software transactions. The drafters, however, excluded "digital content" from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as "classification confusion." Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to …

Following The Money – The Chaotic Kerfuffle Over Residential Insurance Proceeds That Simultaneously Are The Only Rebuild Funds And The Only Mortgage Collateral, Kenneth S. Klein

Faculty Scholarship

In an average year in the United States, 30,000 homes are lost to fire, flood, or another similar disaster. In 2003, one of those homes was mine. Since that time, I have spent literally thousands of hours counseling hundreds of survivors of other disasters (including wildfires, Hurricane Katrina, and the crash of a military jet into a residential neighborhood) on the unique set of emotional, financial, and legal challenges that define their road to recovery. One of the recurring and yet repetitively unanticipated challenges is the tug of war between homeowners and their mortgage lender/mortgage servicer over money. That challenge …

The Complicated Relationship: A Snapshot Of The U.S.-Mexico Border, James Cooper

Faculty Scholarship

This report will detail some of the major issues concerning the U.S.-Mexico border and the interconnected nature of the problems. It first examines the violence between narcotraficantes, that which has resulted in the crackdown against them by the Mexican Government through mobilization of the military. The resulting violence and kidnappings have brought about minimal confidence in civilian authorities, the administration of justice, and democratic governance. This report discusses the resulting public insecurity that has afflicted Mexico in the last few years. This report explores the economic contours along the U.S. border, and the reactions of the U.S. Government to what …

Addressing Problems Of Power And Supervision In Field Placements, Nancy M. Maurer, Robert F. Seibel

Faculty Scholarship

Power dynamics play a role in all workplace relationships and are of particular significance in field placement programs where such dynamics can have an impact on the learning opportunities for law students. This article examines power issues in relation to supervision of law students. The article begins by exploring the parameters of the problem through examples, and then examines the potential consequences of failing to address such issues in field placement programs, including ethical ramifications. Faculty in field placement programs, who generally are not responsible for client work product, have a unique opportunity to address power and supervision issues with …

Transborder Licensing: A New Frontier For Job Creation, Andrea L. Johnson

Faculty Scholarship

This Article explores why entrepreneurs should consider transborder licensing as a way to increase markets and create jobs. While transborder licensing can involve both goods and services, this Article focuses on exporting nondefense, non-security-related services and intellectual capital, and it explores how the U.S. government can facilitate the development of an industry of support professionals to help U.S. companies navigate through the regulatory complexities.

Part II of this Article will discuss exports generally and explain the life cycle of a typical patent. Part III will show how current population and foreign business ownership trends necessitate studying how trade is conducted …

Litigating The Arab-Israeli Conflict In U.S. Courts: Critiquing The Lawfare Critique, William J. Aceves

Faculty Scholarship

The lawfare critique offers a provocative challenge to the use of law and legal process in the context of the Arab-Israeli conflict. It has been used to question the legitimacy of numerous lawsuits filed by individuals harmed in the conflict. The lawfare critique is misguided, however, because it fails to recognize that the purpose of any legal system is to offer a viable alternative to the use of force. In addition, the lawfare critique runs counter to the right to a remedy, a firmly established principle of international law. Legal fora should remain accessible to victims, who should have the …

Reasonable Expectations In Socio-Cultural Context, Nancy Kim

Faculty Scholarship

Under the objective theory of contract, courts interpret the intent of the parties in adopting a particular contractual term according to the reasonable meaning of that term, or the meaning that a reasonable person would assign to that term. Courts adopt the objective theory to determine all aspects of the understanding between the parties-from the determination of contract formation, to an evaluation of the meaning of written or spoken terms, to an assessment of contract performance. In a series of articles, Professor Melvin Eisenberg explained how modern contract law evolved from the will theory to the classical model, and from …