Law Commons^™

The Influencers: Facebook’S Libra, Public Blockchains, And The Ethical Considerations Of Centralization, Michele Benedetto Neitz

Publications

The theoretical promise of blockchain technology is truly extraordinary: a peer-to-peer distributed immutable ledger that could revolutionize economies, societies, and even our daily lives. But what if blockchain technology is not as decentralized as people think? What are the ramifications if, in reality, a blockchain’s core decisions are actually influenced by small groups of people or corporations?

This short article seeks to answer that question, by demonstrating that decentralized public blockchains are only as immutable as the decentralization of their governance. Moreover, the announcement of Libra, Facebook’s new permissioned blockchain, shows a growing trend of centralized control around decentralized technologies. …

An Aquifer Betrayed: The Monterey Desalinization Project At Odds With California Water Law, Paul Stanton Kibel

Publications

The California American Water Company's Monterey Peninsula Water Supply Project (Cal-Am Project) is a proposed desalinization facility in Monterey County that was approved by the California Public Utilities Commission (CPUC) in September 2018. The Cal- Am Project would treat water pumped from inland coastal groundwater aquifers-the Dune Sand Aquifer and the 180-Foot Aquifer-rather than water pumped directly from the ocean. The Cal-Am Project's pumping of these coastal aquifers is expected to result in increased seawater intrusion in groundwater.

The Marina Coast Water District and the City of Marina filed petitions with the California Supreme Court alleging violations of the California …

Sudden, Forced, And Unwanted Kisses In The #Metoo Era: Why A Kiss Is Not “Just A Kiss” Under Italian Sexual Violence Law, Rachel A. Van Cleave

Publications

#MeToo reports have revealed a significant number of forced kisses typically by men in positions of authority. Previous scholarship in the US has viewed such instances as to rare or too minor to be worthy of criminal sanctions. Indeed, there are no such reported criminal cases involving adults. However, in Italy, the Supreme Court of Cassazione has upheld sexual violence convictions for such forced kisses. This article analyzes these cases and investigates the types of considerations the Italian Supreme Court includes in its evaluation of these situations. This article also suggests specific aspects of US laws that could benefit from …

The Construction And Criminalization Of Disability In School Incarceration, Jyoti Nanda

Publications

This Article explores how race functions to ascribe and criminalize disability. It posits that for White students in wealthy schools, disabilities or perceived disabilities are often viewed as medical conditions and treated with care and resources. For students of color, however, the construction of disability (if it exists) may be a criminalized condition that is treated as warranting punishment and segregated classrooms, possibly leading to juvenile justice system involvement. Providing a review of the K-12 disability legal regimes, this Article maps how the process of identifying a student with a disability happens in a hypercriminalized school setting. The Article argues …

Developing Career Paths In Legal Academia: Prospects And Challenges, Christian N. Okeke

Publications

Presentation given at the Academic & Career Advancement Symposium (ACAS) 2019 Held at the Faculty of Law, Enugu State University of Science & Technology, Friday, 5 July 2019.

What Italian Sexual Violence Law Can Teach Us Law In The #Metoo Era, Rachel A. Van Cleave

Publications

On International Women’s Day, with women facing challenges on equal pay, reproductive rights, sexual harassment and violent sexual assault, the topic of sudden, forced and unwanted kisses initially seems trivial, unworthy of consideration. However, Alva Johnson’s recent civil complaint against Donald Trump for kissing her on the side of her mouth, raises the question of whether such conduct should be criminal in the United States.

A Patent Reformist Supreme Court And Its Unearthed Precedent, Samuel F. Ernst

Publications

This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between …

Radical Reconstruction: (Re) Embracing Affirmative Action In Private Employment, Hina B. Shah

Publications

The history of employment in this country is the history of racism. Using public and private mechanisms as well as violence to devise and enforce segregation and preferential treatment, the white male institutionalized an unprecedented advantage in the labor market. Yet this is rarely acknowledged as a factor in the current widening economic disparity between whites and blacks. Today, many white Americans, cloaked in the myth of colorblindness and meritocracy, refuse to see the persistence of racial prejudice, disadvantage and discrimination in the labor market.

This article is a call for a radical reconstruction of the private labor market through …

Pulling Back The Curtain: Implicit Bias In The Law School Dean Search Process, Michele Benedetto Neitz

Publications

This Article stems from the author’s experience chairing multiple dean searches and research interest in the existence, genesis, and effects of implicit bias. Part II of this Article will review the role of a law school dean, with special consideration of the ways the Great Recession and its outcomes transformed the role of the dean. Part III will describe the typical dean search process and evaluate decanal diversity statistics to determine which candidates are selected for these powerful roles in today’s law schools. Part IV will introduce the concept of implicit bias, specifically focusing on ingroup favoritism. This part will …

Predictive Contracting, Spencer Williams

Publications

This Article examines how contract drafters can use data on contract outcomes to inform contract design. Building on recent developments in contract data collection and analysis, the Article proposes “predictive contracting,” a new method of contracting in which contract drafters can design contracts using a technology system that helps predict the connections between contract terms and outcomes. Predictive contracting will be powered by machine learning and draw on contract data obtained from integrated contract management systems, natural language processing, and computable contracts. The Article makes both theoretical and practical contributions to the contracts literature. On a theoretical level, predictive contracting …

Respect For Community Narratives Of Environmental Injustice: The Dignity Right To Be Heard And Believed, Helen H. Kang

Publications

Part I of this article covers the history of the shipyard at Hunters Point in San Francisco and, as told through stories and voices of residents, the disregard government agencies overseeing the cleanup showed the community. Part I also discusses the massive cleanup fraud that has prolonged the cleanup of nuclear contamination at the shipyard. Part II of the article connects environmental injustice storytelling to the dignity of communities overburdened by pollution. Part Ill discusses how advocates and teachers, in particular professors of environmental clinics, can better integrate these narratives in environmental justice advocacy and teaching, in the classroom and …

Of Commonwealths And Our Commonwealth: An Introduction, Colin Crawford

Publications

The symposium articles published here represent a range of considerations of the meaning and implications of the word "commonwealth," as well as its predecessors and some of its distant antecedents. In all, the articles cover over 400 years of history.

Rethinking Consumer Protection: Escaping Death By Regulation, Thomas L. Tacker

Publications

This book is designed to appeal to anyone who is at all interested in topics related to making life better and safer—for all us consumers. Our current approach to consumer protection is extremely flawed; sometimes costing lives rather than saving them. There are better ways to protect ourselves and the people we love.

Beyond The Noise: The Airport Proprietor Exception And The Long Beach Airport Experience, Daniel Friedenzohn

Publications

This article addresses how the legal landscape has evolved for airports to regulate noise activity. Part one of discusses the federal role in regulating airport noise. Part two addresses the development of the airport proprietor exception as a legal pathway for airports to regulate airport noise. Part three provides a brief overview of the codification of the airport proprietor exception and the additional role that the federal government adopted with respect to regulating aviation noise. Part four addresses the legal action brought forth by airlines challenging the City of Long Beach airport’s restriction on flight operations. Part five will discuss …

Powerful Speakers And Their Listeners, Helen Norton

Publications

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …

From The Courtroom To The Classroom: How A Litigator Became A Transactional Drafting Professor, Amy Bauer

Publications

No abstract provided.

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

Publications

At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Mandatory Disclosure In Primary Markets, Andrew A. Schwartz

Publications

Mandatory disclosure—the idea that companies must be legally required to disclose certain, specified information to public investors—is the first principle of modern securities law. Despite the high costs it imposes, mandatory disclosure has been well defended by legal scholars on two theoretical grounds: ‘Agency costs’ and ‘information underproduction.’ While these two concepts are a good fit for secondary markets (where investors trade securities with one another), this Article shows that they are largely irrelevant in the context of primary markets (where companies offer securities directly to investors). The surprising result is that primary offerings—such as an IPO—may not require mandatory …

Copyright Arbitrage, Kristelia A. García

Publications

Regulatory arbitrage—defined as the manipulation of regulatory treatment for the purpose of reducing regulatory costs or increasing statutory earnings—is often seen in heavily regulated industries. An increase in the regulatory nature of copyright, coupled with rapid technological advances and evolving consumer preferences, have led to an unprecedented proliferation of regulatory arbitrage in the area of copyright law. This Article offers a new scholarly account of the phenomenon herein referred to as “copyright arbitrage.”

In some cases, copyright arbitrage may work to expose and/or correct for an extant gap or inefficiency in the regulatory regime. In other cases, copyright arbitrage may …

A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary

Publications

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

Keynote: The Protection Of Lgbt Youth, Craig Konnoth

Publications

This keynote contains three parts. Part I addresses the intersection of two metaphors: medicine and childhood in LGBT Rights. Part II addresses the state regulation of LGBT youth. Part III offers Professor Konnoth's concluding remarks on the protection of LGBT youth.

The Architecture Of Drama: How Lawyers Can Use Screenwriting Techniques To Tell More Compelling Stories, Teresa M. Bruce

Publications

Hollywood writers have a secret. They know how to tell a compelling story—so compelling that the top-grossing motion pictures rake in millions, and sometimes billions, of dollars. How do they do it? They use a simple formula involving three acts that propel the story forward, three "plot points" that focus on the protagonist, and two "pinch points" that focus on the adversary. The attached Article argues that lawyers should build their stories in the same way Hollywood writers do. It deconstructs the storytelling formula used in movies and translates it into an IRAC-like acronym, SCOR. Attorneys who use SCOR will …

The Uses And Abuses Of The Government's Tools Of Information Control, Helen Norton

Publications

No abstract provided.

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

The Right To Explanation, Explained, Margot E. Kaminski

Publications

Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released …

Sustainable Development: Energy, Justice, And Women, Lakshman Guruswamy

Publications

This article will first offer a functional synopsis relevant to its remit, of the concept of sustainable development (SD) embodied in international law and policy that reflects a tension between economic and social claims as contrasted with environmental protection. While the dominant place acquired by the economic and social dimensions of SD will be recognized, it will argue consistent with the predicate of justice discussed in the article, that the protection of the human environment encompasses the plight of the energy poor and their women and children. Second, the article will delineate the contours of one of the great developmental …

Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer

Publications

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.

We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression-one that operates to effectively disfranchise an entire class of people, just as the old form did for African …

Stem And Sustainability: Creating Aviation Professional Change Agents, P. Clark, Doreen Mcgunagle, L. Zizka

Publications

With the evolution of the workforce and the growing needs of the aviation industry, a clear need for concrete sustainability initiatives and actions have emerged. Sustainability in this sense becomes a matter of survival. For this reason, in this chapter, we will attempt to close three gaps in current sustainability studies: Theory vs practice, intention vs behavior, and education vs workplace.

Our purpose is to develop a ‘simple’ strategy for integrating all three pillars of sustainability into STEM HE programs that create authentic engagement and real buy-in from the students that are then replicated in the workplace. Based on the …

The Left's Law-And-Order Agenda, Aya Gruber

Publications

No abstract provided.