Law Commons^™

The Criminal Justice System And Latinos In An Emerging Latino Area, Betina Cutaia Wilkinson

Latino Public Policy

The topic of my study is Latinos’ attitudes and experiences with the criminal justice system in an emerging Latino area. There is an extensive amount of research on African Americans’ experiences and views of the criminal justice system yet our knowledge of Latinos’ experiences with the criminal justice system is quite scant. Still, a few studies have provided some foundation for our understanding of this topic. We know that immigrant policing is associated with Latinos’ reduced trust in government agencies and its programs (Cruz Nichols et al. 2018a). Restrictive immigration policies negatively impact Latinos’ physical and mental health (Cruz Nichols …

A Martin Luther King Jr. Amendment To The U.S. Constitution: Toward The Abolition Of Poverty, Theodore Walker

Perkins Faculty Research and Special Events

Rev. Dr. Martin Luther King Jr. prescribed that we add an economic bill of rights to the U.S. Constitution. A King-Inspired bill of rights should include a constitutional amendment that enumerates a natural human right to be free from economic poverty, and appropriate enforcement legislation.

For the sake of abolishing slavery, the Thirteenth Amendment says:

(Section 1) Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

(Section 2) Congress shall have power to enforce this article by …

Protecting Children? Assessing The Treatment Of Unaccompanied Minors In The U.S., Chiara Galli

Latino Public Policy

In the summer of 2014, unprecedented numbers of unaccompanied minors fleeing violence in El Salvador, Guatemala and Honduras arrived in the U.S. seeking refuge. Current U.S. immigration law affords certain legal protections to children who migrate alone from non-contiguous countries, allowing them to be initially admitted to the U.S. To avoid deportation and remain in the country long-term, however, they must successfully apply for humanitarian relief from deportation. This interview-based study traces these children’s experiences navigating this legal process and interacting with different branches of the US immigration bureaucracy.

Martin Luther King Jr. On Economy, Ecology, And Civilization: Toward A Mlk Jr-Inspired Ecotheology, Theodore Walker

Perkins Faculty Research and Special Events

This MLK Jr-inspired ecotheology [eco-theology] connects “economics,” “ecology,” and “ecological civilization” to the theological ethics of Rev. Dr. Martin Luther King Jr.

Though we often remember King primarily as a domestic civil rights leader; attention to King’s book—Where Do We Go from Here: Chaos or Community? (1967) reveals that he advanced a global ethics. King called for replacing recourse to war with nonviolent resistance to evil, and for abolishing poverty throughout “the world house.” He prescribed that we “civilize ourselves by the total, direct and immediate abolition of poverty.” King was concerned with civilizing “the world house” (house …

Border Enforcement And Civil Rights Along The Texas-Mexico Border, Esther Reyes

Latino Public Policy

Over the past two decades, spending on enforcement along the southwestern border of the United States has expanded dramatically. The annual budget of the U.S. Border Patrol, increased from $400 million in fiscal year 1994 to $3.8 billion in fiscal year 2017. During this period, the number of Border Patrol agents stationed along the U.S.Mexico border grew by nearly 450 percent, from 3,747 to over 16,605 agents. Meanwhile, apprehensions of unauthorized migrants along the U.S.-Mexico border declined from 979,101 in 1994 to 303,916 in 2017.

These expansions and the accompanying declines in immigrant populations and apprehensions have raised concerns about …

International Law And Extraterritoriality: Brief Of International And Extraterritorial Law Scholars As Amici Curiae (U.S. V. Microsoft), Anthony J. Colangelo, Austen L. Parrish

Faculty Journal Articles and Book Chapters

Written by international and extraterritorial law scholars, the attached amicus brief was submitted in the U.S. v. Microsoft case. That case involves whether Congress, when it enacted the Stored Communications Act, intended to provide federal and local law enforcement authority to unilaterally seize the private email communications of foreign citizens stored abroad.

The amicus brief explains how the Charming Betsy canon and the law of extraterritoriality are part of a well-defined body of law the U.S. Supreme Court has developed for determining how American law applies abroad. These doctrines exist independently: one aims to avoid unsanctioned violations of international law. …

Energy Market And Policy Revolutions: Regulatory Process And The Cost Of Capital, James W. Coleman

Faculty Journal Articles and Book Chapters

As the world embarks on a transition toward a low-carbon economy, one common characteristic of alternatives to fossil fuels has gone surprisingly unexamined: the cost of these alternative sources is disproportionately concentrated in capital expenses, rather than operating expenses. Solar, wind, and hydro power have very low operating expenses: the cost of these power sources is largely in their construction. Even nuclear power has low fuel costs compared to fossil fuel power sources. So as the world decarbonizes the power grid and electrifies the transportation sector, capital costs will grow increasingly important in the energy sector. At the same time, …

Mutual Mistake Or Excuse: Which Approach To Pursue When Seeking Judicial Relief From Contractual Obligations On The Basis Of Supervening Knowledge?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

When a person seeks to be relieved from their contractual obligations on the basis of supervening knowledge of a fact existing at the time of contracting that has rendered their performance impracticable or even impossible, and/or has frustrated their purpose in entering into the contract, they would appear to have choice between asserting a mutual mistake enforce-ability defense, or instead asserting one or more of the impossibility, impracticability, or frustration of purpose excuse defenses. Do they in fact have this choice, or does each of these approaches for obtaining relief have its own distinct scope of application, with little if …

Does Failure To Mitigate Damages Bar Recovery Of The Costs Of Mitigation?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

It is well established that a person who makes reasonable efforts to mitigate her damages after a breach of contract will be able to recover the costs of those mitigation efforts as incidental damages and that a person who fails to make such efforts will be denied recovery of the damages that could have been avoided. But will a person who fails to take reasonable efforts to mitigate damages still be able to recover the probable cost of those mitigation efforts as an offset against the reduction in her damages for failure to mitigate, even though she did not incur …

The Duty To Disobey Illegal Nuclear Strike Orders, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article argues there is a legal duty to disobey illegal nuclear strike orders. Failure to carry out this duty may result in criminal and civil liability.Because nuclear weapons are quantitatively and qualitatively different from conventional weapons, typical legal calculations regulating their use under the laws of war or humanitarian law, as well as human rights law, change along with the change in weaponry. At least five “unique characteristics” of nuclear weapons ominously distinguish them from conventional weapons in ways that promise only to increase civilian death and suffering. First, quantitatively, the blast power, heat, and energy generated far outstrip …

A Law Professor’S Modest Response To Trumpism: Supervising Student Directed Research Papers On Impeachment, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This short essay discusses my motivation for and the reading materials and procedures I use when offering about a half-dozen law students each semester a Directed Research option to research and write papers on the topic of Presidential impeachment. I recommend that those faculty members who may have only a modest Constitutional Law background, but who feel as I do that greater understanding and more sustained discussion of the merits and drawbacks of removal of President Trump from office through impeachment is called for, and who wish to facilitate such understanding and discussion without compromising their professional and ethical obligations …

Final Report Of The Berkeley Center For Law & Technology Section 101 Workshop: Addressing Patent Eligibility Challenges, Jeffrey Lefstin, Peter Menell, David O. Taylor

Faculty Journal Articles and Book Chapters

Over the past five years, the Supreme Court has embarked upon a drastic and far-reaching experiment in patent eligibility standards. Since the founding era, the nation’s patent statutes have afforded patent protection to technological innovations and practical applications of scientific discoveries. However, the Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories imposed a new limitation on the scope of the patent system: a useful application of a scientific discovery is ineligible for patent protection unless the inventor also claims an “inventive” application of the discovery. The following year, the Court ruled that discoveries of the location and …

You Can Lead A Horse To Water: Heller And The Future Of Second Amendment Scholarship, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

Ten years ago, there was reason to believe that Second Amendment doctrine would—following elements of District of Columbia v. Heller—become rigid and binary. Likewise, scholarship might have followed the same path; digging into the pre-Heller trenches and pitting "pro-gun" against "pro-regulation" views. In "From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller," we showed through empirical study that the doctrinal reality is far more nuanced and interesting. In this essay, we describe how Heller not only inaugurated a new era of constitutional doctrine, but it also helped create a burgeoning new field …

From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset …

Beyond The Pipeline Wars: Reforming Environmental Assessment Of Energy Transport Infrastructure, James W. Coleman

Faculty Journal Articles and Book Chapters

In recent years the role of transport infrastructure in energy markets has become a flashpoint for legal conflict. On one hand, the world is experiencing an unprecedented build-out all kinds of energy transport: oil and gas pipelines, liquefied natural gas projects, power transmission, and port facilities for coal and oil. On the other hand, environmental advocates have increasingly insisted that pipelines and other transport projects should not be built if they would encourage fossil fuel production in markets “upstream” and fossil fuel consumption in markets “downstream” of these projects.

Governments have struggled with how to respond. President Obama famously promised …

Beat As An Element Of The Evolving Global Tax Environment, Cym H. Lowell, Christopher H. Hanna

Faculty Journal Articles and Book Chapters

No abstract provided.

Regulation By Database, Nathan Cortez

Faculty Journal Articles and Book Chapters

The federal government currently publishes 195,245 searchable databases online, a number of which include information about private parties that is negative or unflattering in some way. Federal agencies increasingly publish adverse data not just to inform the public or promote transparency, but to pursue regulatory ends ⎯ to change the underlying behavior being reported. Such "regulation by database" has become a preferred method of regulation in recent years, despite scant attention from policymakers, courts, or scholars on its appropriate uses and safeguards.

This Article, then, evaluates the aspirations and burdens of regulation by database. Based on case studies of six …

The Admissibility Of Sampling Evidence To Prove Individual Damages In Class Actions, Hillel J. Bavli, John Kenneth Felter

Faculty Journal Articles and Book Chapters

The 2016 Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo revived the use of “representative” or sampling evidence in class actions. Federal courts are now more receptive to class plaintiffs’ efforts to prove classwide liability and, occasionally, aggregate damages, with sampling evidence. However, federal courts still routinely deny motions for class certification because they find that calculations of class members’ individual damages defeat the predominance prerequisite of Rule 23(b)(3). As a result, meritorious classwide claims founder. In this paper, we combine legal and statistical analyses and propose a novel solution to this dilemma that adheres to the Tysondecision …

The U Visa's Failed Promise For Survivors Of Domestic Violence, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Recognizing the unique vulnerabilities of immigrants who become victims of crime in the United States, Congress enacted the U visa, a form of immigration relief that provides victims, including survivors of domestic violence, a path to legal status. Along with this humanitarian aim, the U visa was intended to aid law enforcement in efforts to investigate and prosecute crime, based on the notion that victims without legal status might otherwise be too fearful to “come out of the shadows” by reporting offenses to the police. Although these two goals were purportedly coequal, in practice, by requiring survivors to cooperate with …

Shareholder Voting And The Symbolic Politics Of Corporation As Contract, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

American corporations are structured in such a way that shareholders, and shareholders alone, have the right to vote in all significant corporate decisions. Over the years, this exclusive shareholder franchise has been supported by an ongoing procession of justifications. But as those arguments have fallen by the wayside, shareholder primacists have circled back and latched upon a final argument for the special voting status of shareholders, arguing that this fundamental feature of corporate governance is the product of the set of freely-bargained-for agreements among all corporate constituents. Because this set of agreements reflects the preferences of all parties to the …

Pluralism In International Criminal Procedure, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Over the last two decades, international criminal procedure has become a recognized body of law, with textbooks, treatises, and law review articles discussing its rules and principles and theorizing its goals and methods. The term refers to the procedures used at the international criminal courts and tribunals created to address some of the most serious offenses, such as genocide, crimes against humanity, and war crimes. Some of these courts are fully international, like the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the permanent International Criminal Court (ICC). Others are “hybrid courts,” …

Emerging Technologies Challenging Current Legal Paradigms, W. Keith Robinson, Joshua T. Smith

Faculty Journal Articles and Book Chapters

U.S. patent law has made assumptions about where new inventions will be created, who will create them, and how they will be infringed. Throughout history, emerging technologies have challenged these paradigms. This decade’s emerging technologies will allow humans to create in virtual worlds, connect billions of every day devices via the Internet, and use artificial intelligence to invent across technology fields. If countries like the U.S. wish to encourage inventors to seek patent protection in these emerging areas, then a paradigm shift in the law must occur. Specifically, the law must clarify patent eligibility, recognize the increasing role of artificial …

The Litigation Privilege As A Shelter For Miscreant Legal Counsel, Marc I. Steinberg, Logan J. Weissler

Faculty Journal Articles and Book Chapters

This article focuses on a pressing issue of national importance related to attorney conduct (or misconduct). The Litigation Privilege is a long-recognized immunity fashioned for attorneys to enable them to perform their functions as zealous advocates and litigators, without having to consider prospective non-client lawsuits aimed at their conduct in the course of representation. However, recent case law purports to expand the Litigation Privilege outside of its traditional contexts, posing a nationwide threat to attorney ethical standards. Broad readings of what sorts of legal assistance constitute “litigation” for the purposes of the application of the Litigation Privilege have recently been …