Law Commons^™

Shortlisted, Hannah Brenner, Renee Knake

Faculty Scholarship

As the New York Times noted in 1971, Mildred Lillie fortunately had no children. Even in her fifties, she maintained "a bathing beauty figure." Lillie was not, however, a swimsuit model. She was one of President Nixon's possible nominees for the United States Supreme Court. This Article tells the stories of nearly a dozen extraordinary women considered, but ultimately not nominated, for the Court before Justice Sandra Day O'Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly …

Relative Consent And Contract Law, Nancy Kim

Faculty Scholarship

What does it mean to consent? Consent is an essential component of contracts, yet its part in contract law is obscure. Despite its importance, there is no independent doctrine of consent; rather, it plays a key, but ill-defined role in assessing doctrines such as assent or duress. This Article addresses this significant omission in contract law by disassembling the meaning of contractual consent into three conditions: an intentional act or manifestation of consent, voluntariness and knowledge. This Article argues that consent can only be understood relative to these three conditions. Accordingly, consent is not merely a conclusion but a process …

The Role Of The State Towards The Grey Zone Of Employment: Eyes On Canada And The United States, Susan Bisom-Rapp, Urwana Coiquaud

Faculty Scholarship

In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the …

Time For A Change: 20 Years After The "Working Group" Principles, Barbara Cox

Faculty Scholarship

This article discusses three aspects of the Association of American Law Schools (AALS) Section on Sexual Orientation and Gender Identity’s history. First, it reviews the section’s activities at the 1992 AALS Annual Meeting. Second, it discusses how the AALS implemented its Bylaw and Executive Committee Regulations that prohibit discrimination on the basis of sexual orientation (and now gender identity after a recent revision). Finally, it encourages the AALS to discontinue use of some of the guidelines adopted in the early 1990s to guide its interactions with religiously affiliated law schools when conflicts arise concerning allegations of sexual orientation or gender …

Illiberty Of Contract, Donald J. Smythe

Faculty Scholarship

The term “liberty of contract” is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market transactions. But the term is ironic because a contract is only legally binding if courts will enforce it. Since courts derive their authority because they are the third branch of government, they are State actors and contractual enforcement involves the exercise of the State’s powers of …

Sexual Misconduct In Prison: What Factors Affect Whether Incarcerated Women Will Report Abuses Committed By Prison Staff?, Sheryl Pimlott Kubiak, Hannah Brenner, Deborah Bybee, Rebecca Campbell, Cristy E. Cummings, Kathleen M. Darcy, Gina Fedock, Rachael Goodman-Williams

Faculty Scholarship

No abstract provided.

3d Bioprinting Patentable Subject Matter Boundaries, Tabrez Y. Ebrahim

Faculty Scholarship

3D bioprinting combines emerging 3D printing technologies with synthetic biology. The promise of 3D bioprinting technology is to fabricate organs for transplantation, treat burn victims with in vivo skin repair, and create wearable microbiomes. 3D bioprinting can successively build, repair, or reproduce living human cells. This capability challenges eligible subject matter doctrine in U.S. patent law because the law has no brightline standard for patent eligibility for nature-based products. As 3D bioprinting technologies mature, U.S. patent law will need to respond to situations where living and nonliving worlds merge. This Article proposes a "Mixed-Scanned-Transformed" standard to supplement U.S. patent law's …

Biotechnology And Consumer Decision-Making, Joanna K. Sax

Faculty Scholarship

Society is facing major challenges in climate change, health care and overall quality of life. Scientific advances to address these areas continue to grow, with overwhelming evidence that the application of highly tested forms of biotechnology is safe and effective. Despite scientific consensus in these areas, consumers appear reluctant to support their use. Research that helps to understand consumer decision-making and the public’s resistance to biotechnologies such as vaccines, fluoridated water programs and genetically engineered food, will provide great social value. This article is forward-thinking in that it suggests that important research in behavioral decision-making, specifically affect and ambiguity, can …

Certain Certiorari: The Digital Privacy Rights Of Probationers, Daniel Yeager

Faculty Scholarship

In a recent oral argument, a judge on the California Court of Appeal told me they had "at least 50" pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices. As counsel of record in three of those cases, I feel positioned to comment on this hot topic within criminal law. My intention here is less to reconcile California's cases on suspicionless searches of probationers' digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Stuffed Deer And The Grammar Of Mistakes, 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 nearly 1500 criminal cases as on point, 900 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 …

Whoosh - Declining Law School Applications And Entering Credentials: Responding With Pivot Pedagogy, Laura M. Padilla

Faculty Scholarship

The number of law school applications and entering law students and the credentials of those students, declined all at once. This trend has continued for many years, however, given the cyclical nature of law school applications, it will likely reverse eventually and credentials will improve, but not overnight. The first part of the article briefly discusses the decline in law school applicants and applications, including the confluence of perfect storm factors that resulted in more of the crash landing we experienced than a gradual drop. It also details the corresponding drop in entering credentials which accompanied that decline. The article …

The Gmo/Ge Debate, Joanna K. Sax

Faculty Scholarship

The scientific community and the public sphere are having different debates about the application of genetic engineering to improve our food supply. Many that are deeply steeped in the science view genetically engineered food as a more precise way to accomplish what we have been doing for centuries, which is genetically modifying our food supply. Some members of the public view genetically engineered food with skepticism especially as it relates to health, safety and the environment. A disconnect between the scientific consensus and public perception is not a new phenomenon. This Article attempts to bridge this gap by explaining what …

Sexual Violence As An Occupational Hazard And Condition Of Confinement In The Closed Institutional Systems Of The Military And Detention, Hannah Brenner, Kathleen Darcy, Sheryl Kubiak

Faculty Scholarship

Women in the military are more likely to be raped by other service members than to be killed in combat. Female prisoners internalize rape by corrections officers as an inherent part of their sentence. Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases. This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military. The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization …

Using Prior Consistent Statements To Rehabilitate Credibility Or To Prove Substantive Assertions Before And After The 2014 Amendment Of Federal Rule Of Evidence 801(D)(1)(B), Floralynn Einesman

Faculty Scholarship

The Federal Rules of Evidence (FRE) expanded the non-hearsay category of admissible prior consistent statements with FRE 801(d)(1)(B)(ii) to include any statements counsel uses to rehabilitate a declarant’s credibility after that credibility has been attacked. FREV 801(d)(1)(B)(i) and (ii) require that a declarant testify and be subjected to cross-examination about the prior consistent statement. Under these rules, the time at which the declarant made the consistent statement and her reason for making it are critical.

When the declarant does not testify, however, under FRE 806 opposing counsel may still attack the declarant’s credibility. Under these circumstances, it is often challenging …

White Doors, Black Footsteps: Leveraging "White Privilege" To Benefit Law Students Of Color, Leslie Culver

Faculty Scholarship

Law students of color typically avoid seeking the mentorship of white law professors, largely white males, finding female faculty and faculty of color more approachable and willing to serve as mentors. Yet, according to recent ABA statistics, white people make up eighty-eight percent of the legal profession, with sixty-four percent being male. In addition, relevant scholarship comments that one of the primary privileges of whiteness is having greater access to power and resources than people of color do. It follows then, as recent legal scholarship suggests, that law students of color who fail to develop a cultural competence may be …

The Civil Redress And Historical Memory Acts Of 2029: A Legislative Proposal, William J. Aceves

Faculty Scholarship

During the extant “War on Terror,” U.S. and foreign nationals who did not engage in hostilities were detained and mistreated abroad by the United States or by other countries with the acquiescence of the United States. These individuals were accused of being terrorists or were suspected of associating with terror groups, but they were, in fact, innocent. They were eventually released and were never charged by the United States with any crime. Despite their innocence, the United States has failed to provide them with any form of redress for their mistreatment. The Bush, Obama, and Trump administrations refused to apologize …

From Visualization To Legal Design: A Collaborative And Creative Process, Gerlinde Berger-Walliser, Thomas D. Barton, Helena Haapio

Faculty Scholarship

The digital revolution has prompted a strong and accelerating interest in "visualization"-the use of images, photos, icons, diagrams, charts, or videos to enhance or supplant printed language. Although the law remains predominately focused on the written word, the appeal of images to clarify and persuade suggests that legal visualization will be increasingly explored in research and legal practice in coming years. As Michael D. Murray writes, "socio-epistemic and law and society studies affirm that as modern culture becomes increasingly visual, discourse of every kind must follow suit."

Pioneering visualization studies have been groundbreaking and expansive. Murray provides a helpful overview …