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Articles 1 - 27 of 27
Full-Text Articles in Law
For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro
For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro
Faculty Articles
Feminists have long been engaged in the debates over surrogacy. During the past thirty years, thousands of women throughout the world have served as surrogate mothers. The experience of these women has been studied by academics in law and in the social sciences. It is apparent that if properly conducted, surrogacy can be a rewarding experience for women and hence should not be objectionable to feminists. Improperly conducted, however, surrogacy can be a form of exploitation. Compensation is not the distinguishing factor. In this essay I offer two changes to law that would improve the surrogate's experience of surrogacy. First, …
Presumed Incompetent: Continuing The Conversation, Carmen Gonzalez, Angela P. Harris
Presumed Incompetent: Continuing The Conversation, Carmen Gonzalez, Angela P. Harris
Faculty Articles
On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways …
Coal And Commerce: Local Review Of The Gateway Pacific Coal Terminal, Henry W. Mcgee, David A. Bricklin, Bryan Telegin
Coal And Commerce: Local Review Of The Gateway Pacific Coal Terminal, Henry W. Mcgee, David A. Bricklin, Bryan Telegin
Faculty Articles
This article examines the potential constitutional law issues involved in local review of the proposed coal terminals. It explores these issues in the specific context of Whatcom County's review of the Gateway Pacific Terminal. Part II provides a brief overview of the history of the Gateway Pacific terminal. Part III explores issues associated with the facility under the dormant Commerce Clause. Finally, this article concludes that there are few serious issues associated with Whatcom County's review of the proposal that would violate the dormant Commerce Clause. Moreover, Whatcom County will have a great deal of authority to approve or deny …
Impeachment By Unreliable Conviction, Anna Roberts
Impeachment By Unreliable Conviction, Anna Roberts
Faculty Articles
This article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. The article draws on three aspects of the contemporary criminal justice system to show that in admitting convictions for impeachment courts are wrongly assuming that they are necessarily reliable indicators of relative culpability. First, courts assume that convictions are the product of a fair fight, despite the adversarial collapse revealed by the nature of plea-bargaining, the crisis in public defense, and the data on wrongful convictions; second, courts assume that convictions demonstrate relative culpability, despite …
The Taxation Of Intellectual Capital, Lily Kahng
The Taxation Of Intellectual Capital, Lily Kahng
Faculty Articles
Intellectual capital-broadly defined to include nonphysical sources of value such as patents and copyrights, computer software, organizational processes, and know-how-has a long history of being undervalued and excluded from measures of economic productivity and wealth. In recent years, however, intellectual capital has finally gained wide recognition as a central driver of economic productivity and growth. Scholars in fields such as knowledge management, financial accounting, and national accounting have produced a wealth of research that significantly advances the conceptual understanding of intellectual capital and introduces new methodologies for identifying and measuring its economic value. This article is the first to analyze …
Unions & Campaign Finance Litigation, Charlotte Garden
Unions & Campaign Finance Litigation, Charlotte Garden
Faculty Articles
Labor unions and federations, particularly the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), devote significant resources to litigating before the Supreme Court. This Supreme Court litigation frequently takes place in cases that reach far beyond labor law, meaning that unions help to shape the law governing many aspects of American society. Virtually no legal scholarship considers the role that unions play in these cases, and consequently there has been no systemic attention to the positions that unions take before the Supreme Court. Yet, unions’ litigation positions, especially before the Supreme Court, yield useful information about union strategies and priorities. …
A Continuing Plague: Faceless Transactions And The Coincident Rise Of Food Adulteration And Legal Regulation Of Quality, Denis Stearns
A Continuing Plague: Faceless Transactions And The Coincident Rise Of Food Adulteration And Legal Regulation Of Quality, Denis Stearns
Faculty Articles
Over two decades ago, the Jack in the Box E. coli outbreak, in which five victims died, and hundreds more were seriously injured, dramatically changed the way the world looked at food and food safety. Although deemed “trivial” by tort scholars, who nonetheless used legal doctrines first developed in food cases to justify the extension of strict liability to all products, this article uses the Jack in the Box outbreak as a point of departure for exploring not only the relationship between food, being, and knowledge, but to posit that commerce in food, and the inevitability of profit-motivated food adulteration, …
“If They Hand You A Paper, You Sign It”: A Call To End The Sterilization Of Women In Prison, Sara Ainsworth, Rachel Roth
“If They Hand You A Paper, You Sign It”: A Call To End The Sterilization Of Women In Prison, Sara Ainsworth, Rachel Roth
Faculty Articles
The context in which the sterilization of incarcerated women takes place is a deeply coercive one. The practice of sterilizing incarcerated women, whether intentionally coerced or not, takes place against a backdrop of mass incarceration and the long and ignominious history of forced and coerced sterilizations directed at poor people and women of color in the United States. Professor Sara Ainsworth and Dr. Rachel Roth explore this backdrop, and the federal sterilization regulations that arose from this history and from women's activism to change it, in Part I. In Part II, they explain how the appallingly bad and often unconstitutional …
The Anti-Federalists’ Toughest Challenge: Paper Money, Debt Relief, And The Ratification Of The Constitution, George Van Cleve
The Anti-Federalists’ Toughest Challenge: Paper Money, Debt Relief, And The Ratification Of The Constitution, George Van Cleve
Faculty Articles
During the mid-1780s many American states facing widespread financial and social instability in the aftermath of the Revolutionary War actively managed their economies. They authorized paper money, adopted debtor-relief measures, or both. Several historians of these anti-recession measures conclude that such efforts were beneficial. But despite that, the Constitution, as contemporaries understood it, abrogated state powers to issue paper money or provide debtor relief in Article I, Section 10. During ratification, Anti-Federalists were often silent on Section 10, though there were exceptions and popular support for paper money and debtor relief probably prevented ratification in some states. Anti-Federalists did not …
This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi
This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi
Faculty Articles
The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This article suggests that may not always be true. This article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …
Prosser’S Bait-And-Switch: How Food Safety Was Sacrificed In The Battle For Tort’S Empire, Denis Stearns
Prosser’S Bait-And-Switch: How Food Safety Was Sacrificed In The Battle For Tort’S Empire, Denis Stearns
Faculty Articles
In this article, Professor Stearns discusses the legal history of the development of the rules that govern liability for selling unsafe food.
All That Heaven Will Allow: A Statistical Analysis Of The Co-Existence Of Same Sex Marriage And Gay Matrimonial Bans, Deirdre Bowen
All That Heaven Will Allow: A Statistical Analysis Of The Co-Existence Of Same Sex Marriage And Gay Matrimonial Bans, Deirdre Bowen
Faculty Articles
This article offers the first analysis to date of national data evaluating whether defense of marriage acts (mini or super-DOMAs) preserve and stabilize the family. After finding that they do not—just as same sex marriage does not appear to destabilize families—the article analyzes what variables are, in fact, associated with family stability. Specifically, those variables are: families below the poverty line; men and women married three or more times; religiosity; percent conservative versus liberal in a state; disposable income; percent with bachelor’s degree; and median age of first marriage. Next, the article applies the sociological concepts of moral entrepreneurism and …
Meta Rights, Charlotte Garden
Meta Rights, Charlotte Garden
Faculty Articles
Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This article refers to these entitlements as “meta rights” — rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well — among them, the First Amendment right of individuals represented by …
Bankruptcy’S Corporate Tax Loophole, Diane Lourdes Dick
Bankruptcy’S Corporate Tax Loophole, Diane Lourdes Dick
Faculty Articles
Imagine you are a company with a failing business that is drowning in debt. On the bright side, you also possess a very valuable asset. This asset is unique because, unlike most assets, if you liquidate the business through a Chapter 7 bankruptcy, it will be extinguished and its value will not be realized by any shareholders or creditors. On the other hand, even if you substantially liquidate the business using Chapter 11, you can, thanks to an extraordinary ambiguity in the law, preserve this valuable asset. Even better, you can direct the value of this asset to your preferred …
Challenged X 3: The Stories Of Women Of Color Who Teach Legal Writing, Lorraine Bannai
Challenged X 3: The Stories Of Women Of Color Who Teach Legal Writing, Lorraine Bannai
Faculty Articles
Much of what has been written concerning the experience of women of color in the legal academy has focused on tenured or tenure-track women of color who teach doctrinal courses. I speak from a somewhat different place-as a woman of color who teaches Legal Writing and who, like most faculty who teach Legal Writing, is untenured. Of course, I nod my head with recognition as I read the stories shared by tenured or tenure-track women of color who teach 2 doctrinal courses, including challenges they face from students and colleagues. At the same time, I also know (1) that untenured …
A Legal Practitioner’S Guide To Indian And Tribal Law Research, Kelly Kunsch
A Legal Practitioner’S Guide To Indian And Tribal Law Research, Kelly Kunsch
Faculty Articles
This article is a guide to legal research with the specific goal of assisting practitioners. The typical practitioner would be an attorney, but many professionals who work within the arena of Indian and tribal law may not have the formal legal training that attorneys do. The article is a discussion of the resources available to research the law, the issues that often arise in the area, and the approaches to take in applying the resources to the issues. It is not a classic bibliography listing resources (often alphabetically), and is not intended to be comprehensive in the resources mentioned. Acknowledging …
China-African Investment Treaties: Old Rules, New Challenges, Won Kidane
China-African Investment Treaties: Old Rules, New Challenges, Won Kidane
Faculty Articles
This paper analyzes the existing China-African BITs and puts forward some suggestions for its improvement. The extraordinary rise in the last decade of Chinese investment in Africa continues to be a subject of profound curiosity. That is largely because it defies the centuries-old norm on who invests where. Traditionally, the bulk of foreign investment had flowed North-South but rarely South-South. Whenever and wherever it occurred, the means of its protection ranged from direct military intervention to a bona fide and equitable legal framework. China had experienced the full range of treatments in its long history of dealings with the West, …
The Possible Advantages Of Islamic Financial Jurisprudence: An Empirical Study Of The Dow Jones Islamic Market Index, Russell Powell, Arthur Delong
The Possible Advantages Of Islamic Financial Jurisprudence: An Empirical Study Of The Dow Jones Islamic Market Index, Russell Powell, Arthur Delong
Faculty Articles
The Islamic financial system experienced a disproportionately smaller economic hardship in 2008 and 2009 because adherence to Shariʿa tends to encourage conservative investment approaches. Islamic mutual funds were prohibited from investing in the non-Islamic financial sector, highly leveraged companies, and various derivative instruments. Ultimately, this conservative investment approach may have been an effective strategy for mitigating downside risk. The article analyzes the fundamental classical legal requirements that pertain to modern Islamic finance, compares the modern view of Islamic equity investing and its secular capitalist counterpart, explores whether adherence to Shariʿa principles, as defined by the Dow Jones Islamic Market Index, …
Citizens United & The First Amendment Of Labor Law, Charlotte Garden
Citizens United & The First Amendment Of Labor Law, Charlotte Garden
Faculty Articles
The Supreme Court's decision in Citizens United v. Federal Election Commission sparked a widespread dialogue about the fundamental First Amendment right of free speech and the future of election spending. This article contributes to that dialogue with a focus on how the Citizens United decision affects labor unions. After explaining the Court's rationale in Citizens United, the author juxtaposes Citizens United with earlier cases concerning the First Amendment rights of labor unions. Specifically, the article explores inconsistencies in two areas: first, labor protest rights, as to which pre-Citizens United Supreme Court decisions upheld certain speaker-based restrictions on protest tactics; and …
The Siren Is Calling: Economic And Ideological Trends Toward Privatization Of Public Police Forces, Karena Rahall
The Siren Is Calling: Economic And Ideological Trends Toward Privatization Of Public Police Forces, Karena Rahall
Faculty Articles
The landmark Supreme Court ruling in Citizens United has opened the floodgates to allow unlimited corporate campaign donations, and Supreme Court doctrine is shifting back to the Lochner-era's focus on economic rights. At the same time, there are efforts underway across the United States to privatize public services in order to alleviate what proponents claim is a shortfall in revenue due to the recession. Within those privatization efforts, public policing has become a new front, with outsourcing and wholesale privatization of the police underway. This article adds to the existing scholarship a political analysis of privatization efforts, including how lobbying …
Collusion To Control A Powerful Customer: Amazon, E-Books, And Antitrust Policy, John B. Kirkwood
Collusion To Control A Powerful Customer: Amazon, E-Books, And Antitrust Policy, John B. Kirkwood
Faculty Articles
A federal judge recently held that Apple violated antitrust law by conspiring with leading publishers to raise e-book prices. While the Justice Department characterized the case as routine, many commenters argued it should not have been brought. In their view, the real villain was Amazon, whose power and aggressive behavior threatened to create a monopoly, reduce consumer choice, and diminish the vitality of book publishing. In the face of such a powerful customer, the publishers should have been allowed to collude. This article addresses that issue, in the e-books case and in general. In the e-books case, collusion was almost …
Bearing Children, Bearing Risks: Feminist Leadership For Progressive Regulation Of Compensated Surrogacy In The United States, Sara Ainsworth
Bearing Children, Bearing Risks: Feminist Leadership For Progressive Regulation Of Compensated Surrogacy In The United States, Sara Ainsworth
Faculty Articles
Compensated surrogacy-an arrangement in which a woman carries and gives birth to a child for someone else in exchange for money-intimately affects women. Yet, feminist law reformers have not led efforts to regulate this practice in the United States. Their absence is notable given the significant influence of feminist lawmaking in a host of other areas where women's interests are at stake. This lack of feminist law reform leadership can be understood, however, in light of the complex issues that surrogacy raises-complexity that has long divided feminists. In response to efforts to pass surrogacy legislation in Washington State in 2010, …
The China-Africa Factor In The Contemporary Icsid Legitimacy Debate, Won Kidane
The China-Africa Factor In The Contemporary Icsid Legitimacy Debate, Won Kidane
Faculty Articles
The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa's largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment …
Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin
Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin
Faculty Articles
The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection …
Does Shari’A Play A Role In Turkey?, Russell Powell
Does Shari’A Play A Role In Turkey?, Russell Powell
Faculty Articles
This essay explores the relationship of religious law with contemporaryTurkey. The essay discusses certain civil law supporting the adoption of Sharia in Turkey, the role of religious people in providing protection to religious freedom in Turkey, and the role of traditional Kemalist secularism laiklik in distinguishing Turkey.
A Dark Side Of Virtue: The Inter-American Court And Reparations For Indigenous Peoples, Thomas Antkowiak
A Dark Side Of Virtue: The Inter-American Court And Reparations For Indigenous Peoples, Thomas Antkowiak
Faculty Articles
"The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals. Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments. As a result, the Court has become a global leader in the adjudication and redress of indigenous claims. For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital. With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other …
Equity In Times Of Mortgage Crisis, Steven Bender
Equity In Times Of Mortgage Crisis, Steven Bender
Faculty Articles
The notion that equity is available to both lenders and borrowers in foreclosure is widely accepted. Yet, during times of a mortgage crisis, equity does not act to avoid certain injustices. This article, premised on the historical and modern applications of equity, suggests increasing the role of equity without completely disregarding contractual obligations between lenders and borrowers.