Digital Commons Network^™

Rejecting The Intertwining Doctrine: Favoring Adr While Hindering Judicial Efficiency And Economy, Michael Bekesha

Journal of Dispute Resolution

Often the scope of arbitration clauses does not include all potential claims. When the provision fails to provide for all disputes, courts may proceed in one of two ways to resolve both arbitrable and nonarbitrable claims: enforce the arbitration clause with respect to arbitrable claims, or ignore the private contract and litigate all issues at once. The Colorado Supreme Court, in Ingold v. AIMCO, chose the former - rejecting the intertwining doctrine. In doing so, Colorado aligned itself with the position that the United States Supreme Court embraced over twenty years ago. This casenote will discuss whether the Colorado Supreme …

Suing For Small Potatoes: Consumer Class Action Waivers In Arbitration Agreements Distinguished By The Ninth Circuit, Jaimee Conley

Journal of Dispute Resolution

In Shroyer, the Ninth Circuit laid a foundation for looking at consumer class action arbitration waivers with greater scrutiny, using a much narrower test. In doing so, it communicates a clear message to large corporations that arbitration agreements that include class action waivers for the purpose of cheating consumers out of small amounts of money will not be tolerated. This case note will address the significance of the Ninth Circuit's decision and the policy arguments supporting such an approach.

Beyond The Box Score: A Look At Collective Bargaining Agreements In Professional Sports And Their Effect On Competition, Ryan T. Dryer

Journal of Dispute Resolution

Most sports fans have at least the limited understanding that collective bargaining agreements govern the employer-employee relationships between the owners of professional sports teams and players' associations. Indeed, sports have become a big business in the United States, and the media coverage of sports has extended beyond reporting statistics and scores to include all dealings associated with the business.' Every year (at various times depending on the sport), fans are bombarded with numbers detailing signing bonuses, salary cap implications, arbitration results, incentive-laden contracts, and a multitude of other terms that boggle the mind of the layperson. As most sports fans …

Expanding The Power Of U.S. Courts In Private International Arbitration - Moderation Loses To An Extreme, Amy Moore

Journal of Dispute Resolution

Since its inception, 28 U.S.C. § 17822 has been the subject of revisions, amendments, and much debate. This history is symptomatic of the evolving nature of United States presence in the international legal and business world; however, the statutory changes have not always been clear in purpose or application. In 2004, the Supreme Court granted certiorari for Intel Corp. v. Advanced Micro Devices, Inc., in order to solidify interpretation of § 1782's latest rendition, a 1964 congressional revision. Unfortunately, in expanding the accepted scope of § 1782, the Court created new ambiguity, especially in how the statute should relate to …

Interest Arbitration Clauses In Sec. 8(F) Pre-Hire Agreements: Effective For Achieving Genuine Collective Bargaining Or Enabling Parties To Underhandedly Gain Majority Bargaining Power, Thomas Riske

Journal of Dispute Resolution

In Sheet Metal Workers' International Ass'n, Local Union No. 2 v. McElroy's Inc., the United States Court of Appeals for the Tenth Circuit considered whether an employer was required to submit to interest arbitration with a union under the pre-hire agreement entered into by the parties. The applicability of the statutory standards for pre-hire agreements to bargained-for labor and employment contracts is an essential element of this case. When interpreting federal statutory law, the majority of jurisdictions permit unilateral repudiation upon the expiration of a pre-hire agreement and a small minority of jurisdictions allow for the agreement to be repudiated …

The Reluctance To Police The Police, Gil Villagran

Faculty Research, Scholarly, and Creative Activity

A most basic function of government is to ensure public safety, and the San Jose Police Department provides this for our city.  The Department generally has a good reputation for professionally trained officers.  Most police officers like their job, do it professionally, and many remain on the force until retirement.  

From Odious Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa

Articles by Maurer Faculty

This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the unintended consequences and externalities that would ensue if this doctrine were ever made regularly operative. The enlivened scholarly debate surrounding the odious debt doctrine assumes that debt is the sole finance vehicle for despotic governments. This is simply not the case.

Debt is not the sole finance vehicle; despots are able to raise funds through a wide variety of other methods. These include the pillaging of the nation's natural resources, property, and other valuable asset as well as the exploitation of the nation's …

Still Waiting For The Dream: The Justice Of Punishing Undocumented Immigrant Students, Katie Annand

UC Law Journal

An estimated 50,000 to 65,000 undocumented immigrant students graduate from high schools in the United States each year. Yet, upon reaching graduation, undocumented immigrant students, who oftentimes grew up in the United States and consider this country their home, face significant obstacles: current federal laws effectively bar access to higher education for many of these students by imposing substantial financial barriers and by preventing these students from obtaining legal residency, foreclosing federal financial aid and many career options requiring work authorization.

Legislators have responded to student efforts to seek equal access to higher education by proposing the DREAM Act. This …

Retro Models Of The Cisplatin-Dna Cross-Link With Carrier Ligands Having Sp2 N-Donor Triazine Rings, Vidhi Maheshwari

LSU Doctoral Dissertations

Rapid rotation of guanine base derivatives about Pt–N7 bonds results in fluxional behavior of models of the key DNA intrastrand G–G cross-link leading to anticancer activity of Pt(II) drugs (G = deoxyguanosine). This behavior impedes the characterization of LPtG2 models (L = one bidentate or two cis-unidentate carrier ligands; G = guanine derivative). The objective of this study is to understand the types of conformers formed as L is systematically varied. This work, relevant to Pt(II) anticancer drugs, has evolved from published studies with sp3 N-ligands (e.g., 2,2'-bipiperidine), to C2 symmetrical or unsymmetrical sp2 N-ligands having pyridine and/or triazine rings. …

The Supreme Court's Indian Problem, Matthew L. M. Fletcher

UC Law Journal

This Article asserts a new theory about why and how the Supreme Court accepts and decides its Indian law docket: the Court identifies an important constitutional concern embedded in a petition for certiorari, grants certiorari, and then applies its decision- making discretion to decide the "important" constitutional concern. Once that portion of the Indian law case is decided, the Court decides any remaining federal Indian law questions in order to reach a result consistent with its decision on the important constitutional concern. Indian law disputes are often mere vessels for the Court to tackle larger questions; often these questions have …

Native Spiritualities As Resistance: Disrupting Colonialism In The Americas, Kirstin Lea Squint

LSU Doctoral Dissertations

This project analyzes eight novels which represent revolt or resistance by varied Native peoples against the European and Euro-American colonization of the Americas. I take a comparative approach to literatures of the Americas because of the dearth of research examining the literatures of both continents side by side, particularly literatures by and about Indigenous Americans. Chapter One introduces the theoretical bases for the project, including colonial and postcolonial theories, Native American literary theories, and aesthetic concerns specific to American Indian literatures. The second chapter is a comparative analysis of Miguel Angel Asturias’s Men of Maize and Leslie Marmon Silko’s Almanac …

Unifying Disparate Treatment (Really), Martin J. Katz

UC Law Journal

At first glance disparate treatment law seems simple: an adverse employment action (such as a firing) is illegal where that action occurs "because of" a characteristic that is statutorily protected (such as race or sex). Despite this apparent simplicity, this Article points out that there are currently three distinct frameworks for proving disparate treatment. The difficulties are compounded by the fact that each framework places different burdens of proof on the plaintiff and defendant. So which framework applies in given situations? This Article first discusses the different frameworks and how they are applied, then proceeds to explain why the fragmented …

Formalism: From Racial Integration To Same-Sex Marriage, Holning Lau

UC Law Journal

Parents Involved in Community Schools v. Seattle School District, No. i concerned racial integration in public schools; however, the case has a doctrinal impact that extends beyond the context of race, extending specifically to same-sex marriage. Ironically, the five Supreme Court Justices who formed a majority in the casefour of whom are commonly labeled social conservatives - bolstered the case for same-sex marriage. They did so by introducing a new exercise of formalism to equal protection analysis. Specifically, they created doctrine that supports the argument that same-sex marriage bans warrant heightened scrutiny because such bans discriminate on the basis of …

Preserving Power Without Sacrificing Justice: Creating An Effective Reciprocity Regime For The Recognition And Enforcement Of Foreign Judgments, Vishali Singal

UC Law Journal

Globalization has transformed the world's legal systems into interconnected regimes. The strength of a nation's legal system is predicated, in part, on whether foreign nations will recognize and enforce its judgments. While nations have accorded respect to one another's judgments in the spirit of comity by recognizing and enforcing them, none are obligated to do so. Given these delicate relationships between nations, a debate has arisen in the United States' legal community as to whether the United States should require foreign nations to recognize and enforce its own judgments before its courts will reciprocate this treatment towards foreign judgments. In …

Documenting Gender, Dean Spade

UC Law Journal

This Article provides an analysis of gender reclassification policies- policies which determine when an administrative agency will change an individual's gender marker on its records-in three contexts: policies related to gender markers on identification documents, policies related to placement in sex-segregated facilities, and policies related to the state provision of health care that is prohibited based on the gender on record for the person seeking coverage. The Article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of gender tracking …

Transnational Legal Practice 2006-07, Carole Silver, Laurel S. Terry, Ellyn S. Rosen, Carol A. Needham, Robert Lutz, Peter D. Ehrenhaft

Articles by Maurer Faculty

This article reviews developments in transnational legal practice during 2006 and 2007, including international developments, U.S. developments and regional developments in Australia and Europe. The primary focus of the international developments section is the WTO's General Agreement on Trade in Services (GATS). This article discusses GATS Track 1 Activities related to legal services, including the Legal Services Collective Requests and issues related to GATS Track 2 and the potential development of GATS disciplines. This section also surveys GATS-related initiatives of the American Bar Association and the International Bar Association and U.S. implementation of foreign lawyer multi-jurisdictional practice rules. In other …

Development And Quality Evaluation Of Pre- And Post-Workout Sport Beverages, Maria Christine Pfister

LSU Master's Theses

Athletes and gym goers are continuously searching for sports supplements that will set them apart from others. Resistance training is a popular form of exercise that enables one to increase in strength and power. Resistance or strength training, however, results in several degradation processes. A popular way of enhancing workouts and recovering after workouts is through the consumption of sports drinks. In study one, a preliminary study, eight pre-workout and eight post-workout sports drinks were formulated that contained whey proteins, sugars, natural fruit flavors, and other vitamins and supplements. A consumer acceptance test was preliminarily conducted to evaluate consumer acceptability …

Preventive Tax Policy: Chief Justice Roger J. Traynor's Tax Philosophy, Mirit Eyal-Cohen

UC Law Journal

Justice Roger J. Traynor is best known for his judicial innovations in the fields of conflict of laws, product liability, and civil procedure. However, few would trace Traynor's roots to the field of tax law. In the late 193os, Traynor and Stanley S. Surrey, one of our nation's foremost authorities on federal tax law, worked together to propose a substantial transformation of existing mechanisms for settling tax disputes. At what was a crucial time in the development of tax law, high marginal tax rates intensified the friction between taxpayers and the government, boosted litigation, and multiplied the number of tax …

Methods Of Judicial Selection And Their Impact On Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Combining Climate, Crash, And Highway Data For Improved Ranking Of Speed And Winter-Weather Related Crash Locations In Oregon, Christopher M. Monsere, Peter G. Bosa, Robert L. Bertini

Civil and Environmental Engineering Faculty Publications and Presentations

In recent years, the techniques for screening transportation networks to identify high crash locations have become more sophisticated. Many transportation agencies, however, lack sufficient data, either in timeliness, completeness, or accuracy to implement many of the recent advances. This paper presents the results of an empirical analysis of screening and ranking for specific crash type (speed and ice related crashes) on rural 1.6 km (1 mi) highway sections of Oregon highways. The analysis includes data generated with the extensive use of spatial techniques and incorporates climate data to enhance environmental considerations. The paper compares the results of five ranking methods—critical …

The Endless Judicial Selection Debate And Why It Matters For Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

In this overview, I begin by describing the five different systems of state judicial selection that have evolved out of a perennial struggle to strike an optimal balance between judicial independence and judicial accountability. I then explore recent developments that have intensified that struggle, before analyzing, with reference to available research, how different selection systems counter or accommodate such developments. My purpose here is not to write (another) position piece. Rather, my purpose is to step back and contextualize disputes over judicial selection with reference to the independence and accountability issues that animate them, and to isolate what we know …

Forging Fiscal Reform: Constitutional Change, Public Policy, And The Creation Of Administrative Capacity In Wisconsin, 1880-1920, Ajay K. Mehrotra

Articles by Maurer Faculty

In 1911, Wisconsin became one of the first U.S. states to adopt an effectively administered income tax. Wisconsin reformers were able to overcome several institutional barriers to create the administrative capacity necessary to assess and collect a graduated income tax that in time raised significant revenue, but did not supplant the property tax. With this limited success, the Wisconsin income tax soon became a model for other states and even the national government. In this sense, Wisconsin was a leader in forging fiscal reform. Political activists, lawmakers, and other government actors in the Badger State led a turn-of-the-century property tax …

Suspended Sediment Fluxes At An Intertidal Flat: The Shifting Influence Of Wave, Wind, Tidal, And Freshwater Forcing, Stefan A. Talke, Mark T. Stacey

Civil and Environmental Engineering Faculty Publications and Presentations

Using in situ, continuous, high frequency (8–16 Hz) measurements of velocity, suspended sediment concentration (SSC), and salinity, we investigate the factors affecting near-bed sediment flux during and after a meteorological event (cold front) on an intertidal flat in central San Francisco Bay. Hydrodynamic forcing occurs over many frequency bands including wind wave, ocean swell, seiching (500–1000 s), tidal, and infra-tidal frequencies, and varies greatly over the time scale of hours and days. Sediment fluxes occur primarily due to variations in flow and SSC at three different scales: residual (tidally averaged), tidal, and seiching. During the meteorological event, sediment fluxes are …

Anecdotal Forensics, Phrenology, And Other Abject Lessons From The History Of Science, David L. Faigman

UC Law Journal

Many of the forensic identification sciences-including, among others, latent fingerprints, firearms, handwriting, and bitemarks- have little or no scientific foundation underlying them. They are largely based on anecdotal experience and supposition. In this way, "anecdotal forensics" closely resemble other historical failures of science, such as phrenology. Like phrenology, anecdotal forensics are based on inductive experience, have not been subjected to systematic tests, conform to expectations, "prove" what is already presumed to be known, and seem to have great practical utility for society. A century from now, however, the anecdotally-based beliefs of forensic experts are likely to survive much as phrenology …

Straddling The Fence Between Truth And Pretense: The Role Of Law And Preference In Judicial Decision Making And The Future Of Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Duty Issues In The Ever-Changing World Of Payments Processing: Is It Time For New Rules?, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.

Inferences, Arguments, And Second Generation Forensic Evidence, Erin Murphy

UC Law Journal

Advances in scientific and technological evidence have resulted in a new, "second generation" of forensic proof characterized by its high degree of probativeness and mechanical sophistication. Methods such as DNA typing are already in widespread use in the criminal justice system, and law enforcement may soon have available other biometric techniques, global locators, or even reliable lie detection systems.

The promise and allure of such forms of forensic evidence lie in its high degree of accuracy. But the perception that such evidence is infallible has resulted in an increasing number of instances in which the government has sought to bolster …

"Good" Science Gone Bad: How The Criminal Justice System Can Redress The Impact Of Flawed Forensics, Jessica D. Gable, Margaret D. Wilkinson

UC Law Journal

What can the criminal justice system do when "good" science goes bad? This article provides an answer to that question in three parts. First, this article looks at the inability of certain fields of forensic science to produce reliable results. Second, it discusses problems with the current methods of challenging convictions based on unreliable science. Finally, it proposes a new framework to better enable prisoners to seek review of such convictions. What this article does not do is propose ways to prevent wrongful convictions in the future. We recognize that many issues, including the standards governing the admissibility of forensic …

Fingerprint Error Rates And Proficiency Tests: What They Are And Why They Matter, Jonathan J. Koehler

UC Law Journal

The reliability and probative value of a reported fingerprint match at trial is inextricably linked to the rate at which fingerprint examiners make errors. Therefore, it is important that jurors and other legal actors have valid information about the different types of errors, error rates, and scientific tests that can assist with error rate estimates. There is much confusion surrounding these issues and this paper addresses each using a question- and-answer style. Specifically, I describe the different types of errors (e.g., false positives, false negatives, and false alarms) and error rates, explain why they matter, and discuss how we might …

Signature Identification In The Light Of Science And Experience, Roger C. Park

UC Law Journal

The Daubert case encourages judges to ask whether forensic identification expertise is valid, not merely whether it is accepted among practitioners. The example of DNA has shown what real science can do, and has highlighted the shortcomings of other forms of forensic science. The combined effect of Daubert and DNA has contributed to skepticism about forensic identification techniques. This skepticism may lead to exclusion of evidence or to procedural limits aimed at making the expertise more trustworthy or preventing it from having undue weight. I will discuss these two alternatives in the context of the specific forensic problem of signature …