Digital Commons Network^™

Radical Feminist Harms On Sex Workers, I. India Thusi

Faculty Scholarship

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects-money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of "human trafficking" and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International's support for decriminalization, and is the premise of several movies and documentaries about "sex slavery." Radical feminists aim …

The Power To Exclude And The Power To Expel, Donald J. Smythe

Faculty Scholarship

Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate …

Conscious Identity Performance, Leslie P. Culver

Faculty Scholarship

No abstract provided.

Administrative Guidance And Genetically Modified Food, Edward L. Rubin, Joanna K. Sax

Faculty Scholarship

One of the most controversial issues in administrative law, the use of guidance, is exemplified by the regulation of one of the most controversial areas in modern society: genetically modified (GM) food. The appropriate use of guidance versus notice and comment rulemaking is a much-debated issue in administrative law. While agency officials generally assert that they are using guidance to express an agency’s thoughts about how to comply with a specific statutory provision or agency rule, the practical consequence is that the regulated party will hesitate to disobey, even if it believes that the guidance goes beyond the requirements of …

Deporting Undesirable Women, Pooja R. Dadhania

Faculty Scholarship

Immigration law has long labeled certain categories of immigrants "undesirable." One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of …

Veterinary Lien Laws: Hypocrisy In A Healing Profession, Mark I. Weinstein

Faculty Scholarship

This Article discusses the problem of veterinary lien laws that treat companion animals as inanimate objects, in a modern society that often views pets as members of the family. Historically, pets, like automobiles, were subject to possessory liens. If an automobile owner couldn't pay the repair bill, the mechanic could keep possession of the car or sell the car to recoup costs. Veterinary lien laws treat companion animals in a similar fashion. If the owner cannot not pay the veterinary bill in full, the veterinarian is often permitted to keep possession of the companion animal until the bill is paid. …

Decoding The Impossibility Defense, Daniel B. Yeager

Faculty Scholarship

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.

Although it is now hornbook that impossible attempts are …

When Death Becomes Murder: A Primer On Extrajudicial Killing, William J. Aceves

Faculty Scholarship

International law prohibits the arbitrary deprivation of life, which includes extrajudicial killing. This norm is codified in every major human rights treaty and has attained jus cogens status as a non-derogable norm in international law. In the United States, the Torture Victim Protection Act ("TVPA") establishes civil liability for extrajudicial killing. As evidenced in the TVPA's text and legislative history, the definition of extrajudicial killing is based on international law. Despite the clear meaning of the TVPA's text and the clarity of international law, the TVPA's definition of extrajudicial killing is still contested in litigation, and some courts express uncertainty …

Weighing Democracy And Judicial Legitimacy In Judicial Selection, Kenneth S. Klein

Faculty Scholarship

For over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly-framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between …

Interrogation Or Experimentation? Assessing Non-Consensual Human Experimentation During The War On Terror, William J. Aceves

Faculty Scholarship

The prohibition against non-consensual human experimentation has long been considered sacrosanct. It traces its legal roots to the Nuremberg trials although the ethical foundations dig much deeper. It prohibits all forms of medical and scientific experimentation on non-consenting individuals. The prohibition against non-consensual human experimentation is now well established in both national and international law.

Despite its status as a fundamental and non-derogable norm, the prohibition against non-consensual human experimentation was called into question during the War on Terror by the CIA's treatment of "high-value detainees." Seeking to acquire actionable intelligence, the CIA tested the "theory of learned helplessness" on …

The Rise Of Self Sidelining, Leslie Culver

Faculty Scholarship

This Article coins the term "self sidelining" as an experience emanating from two theories: impostor phenomenon and gender sidelining. The impostor phenomenon is a well-established psychological construct that describes the inability of some high-achieving women and men to internalize success. Gender sidelining, recently popularized in legal scholarship, describes the undermining of women's achievements, as compared to men, that are unactionable as legal discrimination. In view of these theories, this Article contends that when internal fraudulent feelings (imposter phenomenon) are perceived to be externally validated by male gender preference (gender sidelining), women consciously or subconsciously discipline themselves to forgo their professional …

Minding The Protection Gap: Resolving Unintended, Pervasive, Profound Homeowner Underinsurance, Kenneth S. Klein

Faculty Scholarship

A significant majority of homeowners in the United States unwittingly have less insurance than necessary to rebuild their home in the event of a complete loss. This persistent, multibillion-dollar protection gap first emerged in the 1990s and has never resolved despite a desire by most homeowners to contract for full replacement coverage. While a great deal of academic and industry literature has addressed the issue of underinsurance, the work has been done without reference to two sources that unlock the conundrum. The first is the 1550+ page administrative rulemaking file of the California Department of Insurance collected in the wake …

Cost-Benefit Analysis And Human Rights, William J. Aceves

Faculty Scholarship

This Article considers whether cost-benefit analysis can provide the human rights movement with the answers it seeks. It offers an instrumentalist and empirical approach to complement the normative arguments that are most often used by the human rights movement. If human rights could be fully monetized, states could consider the full range of benefits that arise from protecting rights and the costs that occur when rights are violated. This approach could provide states with a more accurate methodology for making decisions that affect human rights. In fact, protecting human rights may prove to be cost-effective, particularly when second order costs …

In Re Marriage Of Witten: Subordinating Contract To "Public Policy", Nancy S. Kim

Faculty Scholarship

No abstract provided.

The Myth Of The Reliability Test, Brandon L. Garrett, M. Chris Fabricant

Faculty Scholarship

The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases and …

How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels

Faculty Scholarship

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?

This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, …

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

Immigration As Commerce: A New Look At The Federal Immigration Power And The Constitution, Jennifer Gordon

Faculty Scholarship

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government's immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its …

The Problem Of Monopolies & Corporate Public Corruption, Zephyr Teachout

Faculty Scholarship

No abstract provided.

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

What Does Immigration Status Have To Do With Law School, Maryam Ahranjani

Faculty Scholarship

Young people who are undocumented are underrepresented in higher education in general and in law school in particular. Some states offer instate tuition and other supports for undocumented students, but more support is needed for undocumented students.

Peddling Ignorance: A New Falsity Standard For Scientific Knowledge Fraud Cases, Wes Henricksen

Faculty Scholarship

No abstract provided.

Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron

Faculty Scholarship

No abstract provided.

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Contextualizing The Corporate Rights Movement In Transactional Clinics, Alina S. Ball

Faculty Scholarship

No abstract provided.

Legal History Of Medical Aid In Dying: Physician Assisted Death In U.S. Courts And Legislatures, Thaddeus Pope

Faculty Scholarship

Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.

Medical aid in dying (MAID) is not yet legally available in …

What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer

Faculty Scholarship

Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Faculty Scholarship

Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.

Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …

The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen

Faculty Scholarship

On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.

Protecting The Sacred Writing: The Operating Agreement, Daniel S. Kleinberger

Faculty Scholarship

This column provides practical steps toward protecting an LLC's written operating agreement from claims of oral or implied-in-fact modification. Such claims undercut the purpose of “reducing the agreement to writing,” replacing definiteness with uncertainty and substituting swearing matches for the written word.