Law Commons^™

Restorative Justice And Responsive Regulation In Higher Education: The Complex Web Of Campus Sexual Assault Policy In The United States And A Restorative Alternative, David R. Karp Phd

School of Leadership and Education Sciences: Faculty Scholarship

Sexual assault policy on college campuses in the United States is a complex system guided by federal policy, state policy, and local mandates. When students violate sexual misconduct policies, campuses primarily rely on suspensions and expulsions, paralleling the criminal justice system’s reliance on incarceration as a solution based on stigmatization and separation. Since the 1990s, restorative justice has made inroads as an alternative response to student misconduct, but application to sexual misconduct is rare. The Campus PRISM Project (Promoting Restorative Initiatives on Sexual Misconduct) is a network of academics and practitioners exploring a restorative approach within a responsive regulatory framework. …

The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag

Faculty Articles

Now that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright's most …

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.

The Football As Intellectual Property Object, Michael J. Madison

Book Chapters

The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and broader one. The football lies at the core of football. Intersections between the football and intellectual property law are relatively few in number, but the football supplies a focal object through which the great themes of intellectual property have shaped the game: origins; innovation and …

A Class Of Their Own: Applying Weak Ascertainability To Settlement-Only Classes In The Third Circuit, Danielle Lazarus

Prize Winning Papers

No abstract provided.

Relationship Problems: Pendent Personal Jurisdiction After Bristol-Myers Squibb, Louis J. Capozzi Iii

Prize Winning Papers

The Supreme Court’s recent decision in Bristol-Myers Squibb Co. v. Superior Court of California provides an opportunity to reexamine pendent personal jurisdiction in the federal courts. There are two types of pendent personal jurisdiction. The first form, embraced by federal courts since 1957, is pendent claim personal jurisdiction: when a court has personal jurisdiction over a defendant as to one anchor claim, it can exercise personal jurisdiction with respect to related claims that it could not adjudicate in the anchor claim’s absence. This type is especially common where courts have personal jurisdiction over the defendant because of a statute with …

A Union By Any Other Name? How Capital Misses The Mark On The Position Of Worker Centers Within The Current Labor Law Regime, Elizabeth Dailey

Prize Winning Papers

Worker centers, community-based organizations that serve the most marginalized and unrepresented workers in American society, are under attack, again. With the decline of traditional labor unions in recent decades, worker centers have emerged to fill the void left by this decline and to organize and amplify the collective voice of low-wage, largely immigrant workers. These worker centers seek to rebalance the relative collective bargaining power between labor and capital in the 21st century economy. Technological advances, globalization, and the continued growth of the service sector have led to socioeconomic changes that have little resemblance to the industrial society that existed …

Live Local, Renew Local: Community Sourced Solar Energy In New Mexico, Alexandra Vk Iturralde, Elizabeth Brooke Holland, Coleman Piburn

2020 Award Winners

No abstract provided.

The Justice System Is Criminal, Raven Delfina Otero-Symphony

2020 Award Winners

No abstract provided.

Can A State's Water Rights Be Damned? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Faculty Scholarship

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment …

It’S Still Me: Safeguarding Vulnerable Transgender Elders, Sarah Steadman

Faculty Scholarship

Transgender individuals have many reasons to be concerned about their welfare in the current political and legislative climate. Transgender elders are especially vulnerable. They are more likely to be disabled than the general elder population. Moreover, transgender elders profoundly fear a future when they must rely on others to maintain and protect their gender identity and dignity. This fear is alarmingly realistic because if a transgender elder becomes incapacitated or requires institutional care, they are likely to face discrimination and other harms by their caretakers. In addition, transgender elders who are incapacitated are particularly at-risk if a non-affirming guardian is …

Nefarious Neighbors: How Living Near Payday Loan Stores Affects Loan Use, Nathalie Martin, Younghee Lim, Aimee Moles, Trey Bickham

Faculty Scholarship

Few of us give much thought to local laws, yet local laws, such as zoning and other land use regulations, have an abiding influence on our lives. Think for a few moments about the types of businesses located near your home. Are these businesses places you frequent? Considering socio-economics, how do land uses differ from locale to locale throughout your city or state? Do all citizens have an equal voice in the land use approval process? The answer is likely no, which creates environmental and economic justice issues.

Like all businesses, when it comes to payday lenders, geography matters. Payday …

Review Of Draft No. 4, Beth Hirschfelder Wilensky

Reviews

"Draft No. 4" is an essay collection by John McPhee about his long career as a journalist for The New Yorker. This book review uses the essay collection as a jumping-off point to discuss the similarities and differences between legal writing and long-form journalism, and what legal writers can learn about the writing process from journalists like McPhee.

The Elephant Problem, Richard Primus

Reviews

In their new book, "A Great Power of Attorney": Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central …

Preface To The Third Edition By The General Editor. Preface To The New Wigmore: A Treatise On Evidence: Selected Rules Of Limited Admissibility, Richard D. Friedman

Other Publications

As General Editor of this treatise, my principal job is to recruit an excellent team of authors; no one in the modern day could hope to replicate John Henry Wigmore's one-man show. David Leonard, not only a superb scholar but also an exemplary person through and through, was one of the first people I asked, and to my delight he joined the project. He tackled his assignment with great ability and broad vision--and also graciousness in dealing with a slew of editorial comments from me. With a degree of efficiency and industry that can perhaps best be described in this …

Advanced Artificial Intelligence And Contract, John Linarelli

Scholarly Works

The aim of this article is to inquire whether contract law can operate in a state of affairs in which artificial general intelligence (AGI) exists and has the cognitive abilities to interact with humans to exchange promises or otherwise engage in the sorts of exchanges typically governed by contract law. AGI is a long way off but its emergence may be sudden and come in the lifetimes of some people alive today. How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of capacity to engage in promising and …

The Attribution Problem And Cyber Armed Attacks, Lorraine Finlay, Christian Payne

Law Papers and Journal Articles

In late 2018, the U.S. Secretary of Homeland Security suggested that “cyber-attacks now exceed the risk of physical attacks.” Yet the law has not kept pace with this reality. In particular, identifying who is responsible for a cyberattack makes it difficult to regulate this conduct. A state often cannot practically respond to a threat unless it knows from where the threat emanates and potentially who is responsible. Attribution of cyber conduct is critical from a legal perspective because the unlawful act must be attributable to another state for state responsibility to be engaged.

This essay provides an overview of this …

Japan's Constitution Across Time And Space, Carol Gluck

Center for Japanese Legal Studies

Constitutional reform is a matter of time, the time when the original and the revisions were drafted; and of space, the global context which comprises the transnational constitutional expanse that influenced all modern constitutions from the late eighteenth century on. Of the some 198 written constitutions now in force, more than half were promulgated during the past sixty years. The U.S. Constitution of 1787 is the oldest, and if one counts the 1947 Constitution as an amendment of the Meiji Constitution of 1889 – which formally and technically it was – Japan’s is the world’s tenth oldest written constitution still …

Rhetoric And Realism: The First Diet Debates On Japan's Military Power, Sheila A. Smith

Center for Japanese Legal Studies

Article 9 has been the focus of legislative debate since Japanese leaders concluded the San Francisco Peace Treaty in 1952, ending the U.S. Occupation of their country. Conservatives and progressives alike sought to consider what this new constitution meant for Japan’s postwar defenses, and how it was to be translated into a rearmament policy. Until a new law was passed to create the Self Defense Force in 1954, these Diet debates offer a fascinating window on the effort to define what Article 9 meant, and the issues that provoked contention among political parties.

Most of the critical questions regarding how …

Implications Of Revision Of Article 9 Of The Constitution Of Japan On The Defense Policy Of Japan, Hideshi Tokuchi

Center for Japanese Legal Studies

On December 20, 2018, a P-1 patrol aircraft of Japan’s Maritime Defense Force was flying within Japan’s exclusive economic zone (EEZ) in the Sea of Japan as part of ordinary intelligence collection and warning and surveillance activities, when it observed a destroyer, and a patrol and rescue vessel of the Republic of Korea (South Korea). While photographing the Korean vessels, the Japanese P-1 patrol aircraft was suddenly irradiated by a fire-control radar from the Korean destroyer. A crew member of the P-1 aircraft tried to communicate with the Korean ship in English, saying, “This is Japan Navy. This is Japan …

In Defense Of The Pip Regulations, Walter D. Schwidetzky

All Faculty Scholarship

The section 704(b) allocation Regulations contain a highly complex safe harbor, the substantial economic effect rules. If an allocation fails to comply with the safe harbor, it will only survive scrutiny if it is in accordance with the "partners' interests in the partnership" (PIP). Given the complexity of the safe harbor, one might expect the PIP Regulations to be similarly complex, but nothing could be further from the truth. The PIP Regulations are, by tax standards, concise and straightforward. Some have argued that the PIP Regulations do not provide enough guidance, and that a more complex and comprehensive set of …

Amateur Regulation And The Unmoored United States Olympic And Paralympic Committee, Dionne L. Koller

All Faculty Scholarship

n the wake of the USA Gymnastics sexual abuse scandal and Women’s National Soccer Team’s claim for pay equity, members of Congress have proposed legislation that would reform the United States Olympic and Paralympic Committee (USOPC) through amendments to its governing statute, the Ted Stevens Olympic and Amateur Sports Act. While an important step in the right direction, the proposed reforms fail to address deeper, more urgent questions about the USOPC, the sport National Governing Bodies (NGBs) it recognizes, and the meaning of the Olympic and Amateur Sports Act. This Article explores those issues by explaining that the USOPC’s quasi-governmental …

Braiding The Strands Of Narrative And Critical Reflection With Critical Theory And Lawyering Practice, Carolyn Grose, Margaret E. Johnson

All Faculty Scholarship

No abstract provided.

How International Oil Companies Could Assist Greece To Achieve The Sustainable Development Goals: A Conversation Starter, Alexandra Sdoukou, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper wishes to be a timely contribution towards a fruitful debate among stakeholders; it urges International Oil Companies (IOCs) to examine how the critical Sustainable Development Goals (SDGs) for Greece can be integrated into their core business so that the oil and gas industry can contribute to the country’s sustainable growth.