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Full-Text Articles in Law

Disabled But Unqualified: The Essential Functions Requirement As A Proxy For The Ideal Worker Norm, Michael Edward Olsen Jr. Jun 2015

Disabled But Unqualified: The Essential Functions Requirement As A Proxy For The Ideal Worker Norm, Michael Edward Olsen Jr.

UC Law Journal

Over the course of nearly two decades, courts have narrowed the employment protections of the Americans with Disabilities Act of 1990 by interpreting the term “disabled” so narrowly that virtually no person qualified for the Act’s protections. Moreover, if a person was sufficiently “disabled,” they were often so severely disabled that they could not work at all; thus, they were not “qualified individuals” who could perform the essential functions of the job. In response, Congress passed the Americans with Disabilities Act Amendments Act of 2008 to give broad coverage to persons with disabilities. Courts have followed this mandate by interpreting …

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Curing The Infirmities Of The Unconscionability Doctrine, Hazel Glenn Beh May 2015

Curing The Infirmities Of The Unconscionability Doctrine, Hazel Glenn Beh

UC Law Journal

This Article considers the unconscionability doctrine and confronts criticisms that the doctrine is fatally flawed as too vague, flexible, and ill-defined. It argues that unconscionability is a vital contract doctrine that entrusts common law judges with the latitude and discretion to safeguard essential contracting fairness and justice. Unconscionability serves as the line of demarcation between hard bargains and unfair bargains. This Article explores proposals to fortify and invigorate the unconscionabilitydoctrine in order to promote contracting fairness in an era where one sided, adhesionary contracts abound.

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Casebooks And The Future Of Contracts Pedagogy, Carol L. Chomsky May 2015

Casebooks And The Future Of Contracts Pedagogy, Carol L. Chomsky

UC Law Journal

Contracts teachers have long relied on the casebooks they adopt to help them build and shape both the content and the pedagogy of their contracts classes. The Knapp, Crystal, & Prince casebook has been particularly noteworthy in this regard, helping generations of new and experienced law teachers learn and explore contracts doctrine under the guidance of Chuck Knapp and his co-authors. As casebook authors take seriously the forces and trends in academic publishing, the casebooks are bound to change in significant ways, leading to innovation and even transformation of the course itself. Driving the change are at least six developments …

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Under The Sun: Casebooks And The Future Of Contracts Teaching, Thomas W. Joo May 2015

Under The Sun: Casebooks And The Future Of Contracts Teaching, Thomas W. Joo

UC Law Journal

What is the future of the casebook in legal education? It is tempting and fashionable to blame the current woes of law schools on their supposedly “outdated” educational practices, such as casebooks. As this Article shows, however, most of the current criticisms of casebooks and the case method are perennial ones. This does not render the critiques invalid, but it does undermine the notion that they reveal a contemporary crisis in legal education. Indeed, they are not even specific to legal education. Rather, they reflect fundamental tensions in the learning of any field: theory versus practice, general understanding versus specific …

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Contract Law Present And Future: A Symposium To Honor Professor Charles L. Knapp On Fifty Years Of Teaching Law, Harry G. Prince May 2015

Contract Law Present And Future: A Symposium To Honor Professor Charles L. Knapp On Fifty Years Of Teaching Law, Harry G. Prince

UC Law Journal

The American Association of Law Schools (“AALS”) Contracts Section listserv recently carried an online conversation that began with the question of whether anyone knew a case in which the court refused to enforce a contract because of its racial content. A lively and informative discussion ensued. One of the responses cited a case in which the court held that the refusal to contract based on race was wrongful, but the author went on to suggest she believed she had seen a case in an older edition of the Knapp casebook that held that an offer could be restricted on the …

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“Contraps”, William J. Woodward Jr. May 2015

“Contraps”, William J. Woodward Jr.

UC Law Journal

Forms that purport to govern consumer transactions are a central component of our modern consumer economy. They are routinely enforced because consumers are said to “manifest assent” to them, despite the fact that they are not read and not intended to be read. Recent empirical work shows that virtually no one reads or understands consumer forms. This has cast into substantial doubt the conventional explanation for enforcement—that enough people are reading the forms to cause vendors to worry about lost sales resulting from nasty terms, that “market discipline” will thus limit vendor excess. Given the empirical findings, “assent” (in any …

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The Duty Of Good Faith: A Perspective On Contemporary Contract Law, Jay M. Feinman May 2015

The Duty Of Good Faith: A Perspective On Contemporary Contract Law, Jay M. Feinman

UC Law Journal

A duty of good faith performance inheres in every contract. Many courts get the contours and application of the duty of good faith wrong. These courts’ restrictive approach ties the good faith duty too closely to the express terms of the contract, requires subjective bad faith to violate the duty, and narrowly defines the standards of conduct that good faith requires. This Article, presented at a symposium in honor of Charles Knapp, describes the senses in which the courts get good faith wrong: doctrinal, historical, structural, and political/ideological. In doing so, it applies the critical legal studies approach to the …

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Sketches Of A Redemptive Theory Of Contract Law, Emily M.S. Houh May 2015

Sketches Of A Redemptive Theory Of Contract Law, Emily M.S. Houh

UC Law Journal

This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have “outsider” players—such as racial minorities, women, and sexual minorities—entered the game and, subsequently, how have its governing rules—that is, contract doctrines—applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, this Article …

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Contract As Evil, Peter Linzer May 2015

Contract As Evil, Peter Linzer

UC Law Journal

Contract is, of course, often good. It permits parties to negotiate terms that are specific to their needs, something statutes can’t do. But contract is often evil and used for evil ends, particularly because much of contract theory and doctrine is unconcerned with the distribution of power; information and shrewdness between the parties and is based, in part, on a romantic view of contract, emphasizing its basis in free will and liberty. This almost deification of Contract blinds those who follow it to the very absence of free will and liberty when the ability to deal in contract is unbalanced. …

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Contractual Indescendibility, David Horton May 2015

Contractual Indescendibility, David Horton

UC Law Journal

Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to e-mail and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge noninheritability provisions face three obstacles. First, they have to prove an ownership interest in the …

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Is There A “Duty To Read”?, Charles L. Knapp May 2015

Is There A “Duty To Read”?, Charles L. Knapp

UC Law Journal

The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This Article explores the general question of what it may mean to say that there is a “duty to read,” and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract. The Article begins by examining various ways in which the “duty to read” is commonly articulated, and compares it to other contract law concepts: the “duty to bargain in good faith” and the “duty to mitigate damages.” The Article next considers a …

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The Revisability Principle, Andrew Tutt May 2015

The Revisability Principle, Andrew Tutt

UC Law Journal

This Article has two purposes. The first is to explain the principle rooted in American law and culture that most strongly supports an American right to be forgotten—a deep constitutional commitment to what this Article calls the “revisability principle.” It is the principle that an individual’s identity should always remain, to some significant extent, revisable; that no person should be tied forever to her identity at a particular moment in the distant past, and that to the extent individuals must forever account for who they were long ago, their individual freedom to act and speak as they wish—both in the …

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Governing Law On Forum-Selection Agreements, Kevin M. Clermont Apr 2015

Governing Law On Forum-Selection Agreements, Kevin M. Clermont

UC Law Journal

The task of determining which law governs a contractual choice-of-forum clause is an enigma to courts. The key to its solution lies at the very heart of the subject, where one encounters its most celebrated riddle: Which law governs when the parties have also agreed to a choice-of-law clause—that is, does a court first test the forum-selection clause under the law of the seised forum, or does one first look at the parties’ choice of law to apply the chosen law to the forum-selection clause? This chicken-or-egg mystery throws courts into contortions. Prior commentators have opted for the chosen law. …

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Gaming The System: Protecting Consumers From Unconscionable Contractual Forum-Selection And Arbitration Clauses, Linda S. Mullenix Apr 2015

Gaming The System: Protecting Consumers From Unconscionable Contractual Forum-Selection And Arbitration Clauses, Linda S. Mullenix

UC Law Journal

The Supreme Court’s 2013 decision in Atlantic Marine v. U.S. District Court perhaps usefully resolved the issue of the appropriate procedural means for ascertaining the proper court where the parties’ agreement includes a forum-selection clause. However, the Court’s decision was predicated on the presupposition that the forum-selection clause was valid—a presupposition that begged that threshold question. Thus, the Court’s presupposition threw a significant set of antecedent questions into legal limbo, namely: (1) what body of law applies to evaluate the validity and enforceability of a forum-selection clause, (2) what court should make that determination, and (3) when should that determination …

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Atlantic Marine And Choice-Of-Law Federalism, Andrew D. Bradt Apr 2015

Atlantic Marine And Choice-Of-Law Federalism, Andrew D. Bradt

UC Law Journal

The headline holding of the Supreme Court’s opinion in Atlantic Marine is its conclusion that a forum-selection clause is usually enforceable under the federal transfer statute, 28 U.S.C. § 1404(a). Also lurking within the opinion, however, is a significant shift in the Court’s approach to choice of law in federal courts. In Atlantic Marine, the Court held that after a transfer to enforce a forum-selection clause, the transferee district court must apply the choice-of-law rules of the state in which it sits. The Court’s rationale is straightforward—the plaintiff should not be allowed to flout the forum-selection clause and obtain the …

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Atlantic Marine And The Future Of Party Preference, Scott Dodson Apr 2015

Atlantic Marine And The Future Of Party Preference, Scott Dodson

UC Law Journal

In Atlantic Marine, the Supreme Court held that a prelitigation forum-selection agreement does not make an otherwise proper venue improper. Prominent civil procedure scholars have questioned the wisdom and accuracy of this holding. In this paper, I defend Atlantic Marine as essentially correct based on what I have elsewhere called the principle of party subordinance. I go further, however, to argue that the principle underlying Atlantic Marine could affect the widespread private market for prelitigation agreements, with significant commercial and doctrinal repercussions.

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Atlantic Marine And The Future Of Forum Non Conveniens, Robin Effron Apr 2015

Atlantic Marine And The Future Of Forum Non Conveniens, Robin Effron

UC Law Journal

This Article explores the impact of the Supreme Court’s unanimous opinion in Atlantic Marine Construction Co. v. U.S. District Court on forum non conveniens doctrine. Although Atlantic Marine concerned a § 1404(a) transfer within the federal system, and therefore does not directly address forum-selection clauses pointing to foreign forums, the case will undoubtedly have an impact on how courts treat forum-selection clauses that point to a foreign forum. In this Article, I argue that the Atlantic Marine opinion relies on a strict coupling of § 1404(a) and forum non conveniens for its holding. As a result, lower courts will be …

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Enforcing Forum-Selection Clauses, Bradley Scott Shannon Apr 2015

Enforcing Forum-Selection Clauses, Bradley Scott Shannon

UC Law Journal

In Atlantic Marine Construction Co. v. U.S. District Court, the Supreme Court created a scheme for the enforcement of contractual forum-selection clauses in federal courts. But the Court’s scheme, which relies heavily on the use of federal venue transfer statutes and the doctrine of forum non conveniens, is highly problematic. The relevance of federal venue statutes for this purpose seems questionable, and the use of such statutes results in an unduly complicated analysis that fails to capture all relevant considerations in this context. The Court’s reliance on federal venue statutes also prevents state courts faced with similar issues from utilizing …

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Atlantic Marine Through The Lens Of Erie, Adam N. Steinman Apr 2015

Atlantic Marine Through The Lens Of Erie, Adam N. Steinman

UC Law Journal

The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion—the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago. This article examines the Atlantic Marine decision through the lens of …

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Judicial Review Of The Equal Employment Opportunity Commission’S Conciliation Efforts, Nicole E. Teixeira Apr 2015

Judicial Review Of The Equal Employment Opportunity Commission’S Conciliation Efforts, Nicole E. Teixeira

UC Law Journal

On June 30, 2014, the Supreme Court granted certiorari in Mach Mining, LLC v. Equal Employment Opportunity Commission (“EEOC”). The issue before the Court is “[w]hether and to what extent [a court may] enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit.” The Court’s decision will likely resolve a three-way circuit split on how the EEOC’s conciliation efforts may be reviewed: currently, the Second, Fifth, and Eleventh Circuits require the EEOC to meet a searching three-step test, while the Fourth, Sixth, and Tenth Circuits apply a more deferential “good faith” standard. The Seventh Circuit created the third …

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Righting The Wrong Of Publicity: A Novel Proposal For A Uniform Federal Right Of Publicity Statute, Alex J. Berger Apr 2015

Righting The Wrong Of Publicity: A Novel Proposal For A Uniform Federal Right Of Publicity Statute, Alex J. Berger

UC Law Journal

The Ninth Circuit’s decision in In re NCAA Student-Athlete Name & Licensing Litigation highlights the enlargement of protection of celebrities’ “identities” under California’s right of publicity scheme. A comparison of California’s and New York’s right of publicity laws exposes the wider issues that cause confusion and uncertainty regarding right of publicity throughout the country. Such issues include ambiguous definitions of “identity,” conflicts with federal copyright law, jurisdictional problems, and First Amendment free speech issues. This Note explores the roots of right of publicity law and how its current forms foment disarray across the nation. Paying particularly close attention to California …

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Five Questions After Atlantic Marine, Stephen E. Sachs Apr 2015

Five Questions After Atlantic Marine, Stephen E. Sachs

UC Law Journal

The Supreme Court’s ruling in Atlantic Marine did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This Article briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum-selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What happens if there are multiple parties or claims, …

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Instrumental Music And The First Amendment, Alan K. Chen Feb 2015

Instrumental Music And The First Amendment, Alan K. Chen

UC Law Journal

This Article critically examines what would seem to be, but is not, an easy free speech question: whether instrumental music falls within the scope of the First Amendment. The Supreme Court has long recognized that musical expression is “speech,” but has never analyzed why this is the case. Similarly, scholarly literature is surprisingly bereft of any comprehensive examination of whether there are sound theoretical or doctrinal foundations for treating purely instrumental music as a form of constitutionally protected expression. This Article engages this question comprehensively, and argues that there are two strong claims for the coverage of instrumental music under …

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The Morality Of Law Practice, Geoffrey C. Hazard Jr. Feb 2015

The Morality Of Law Practice, Geoffrey C. Hazard Jr.

UC Law Journal

This is an inquiry about the morality of lawyers and law practice. Some modern academic critiques hold law practice to be immoral or unjust as compared to the standard of “common morality” or of the sense of “justice” shared in the community. This Essay advances a different standard of reference, one that takes into account the pervasive conflicts within society and the limitations on the government’s ability to get at the truth. These limitations generate a role for lawyers as empowered figures who employ government authority as partisans and confidantes for their clients. That role is comparable to other roles …

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The Evidence Of Things Not Seen: Divining Balancing Factors From Kiobel’S “Touch And Concern” Test, Ursula Tracy Doyle Feb 2015

The Evidence Of Things Not Seen: Divining Balancing Factors From Kiobel’S “Touch And Concern” Test, Ursula Tracy Doyle

UC Law Journal

The long awaited Supreme Court decision in Kiobel v. Royal Dutch Petroleum raised the bar for human rights plaintiffs seeking redress under the Alien Tort Statute (“ATS”), a statute which provides jurisdiction in U.S. district courts for foreign nationals alleging a tort in violation of customary international law. Prior to Kiobel, the typical ATS case alleged atrocities against corporate actors based upon events that occurred largely, if not entirely, outside of the United States. In Kiobel, however, the Supreme Court held that the presumption against extraterritoriality applied to the ATS and that this presumption precludes claims brought pursuant to the …

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Notes Introduction: Changing Law For A Changing Climate, David Takacs Feb 2015

Notes Introduction: Changing Law For A Changing Climate, David Takacs

UC Law Journal

The Intergovernmental Panel on Climate Change’s 2014 definitive statement portends numerous, widespread, severe (and possibly catastrophic) risks climate change poses to human and nonhuman communities. Temperatures will rise, storms will intensify, droughts will persist, pests will spread, pollinators will go extinct or lose synchronicity with the crops and wild plants they pollinate, and sea levels will rise. Meanwhile, human populations expand and move, exploiting more of the ecosystems upon which all human life depends. Climate change has already disrupted Earth’s functioning ecosystems and the human communities that depend on those ecosystems (that is, all of us), with further growth in …

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How Buildings Will Save The World: Using Building Energy Regulation And Energy Use Disclosure Requirements To Target Greenhouse Gas Emissions, Rob Taboada Feb 2015

How Buildings Will Save The World: Using Building Energy Regulation And Energy Use Disclosure Requirements To Target Greenhouse Gas Emissions, Rob Taboada

UC Law Journal

There is a legal, ethical, and pragmatic case for regulation aimed at reducing greenhouse gas emissions in the United States. An essential part of that scheme is the regulation of energy use in the building sector, which accounts for a third of American green house gas emissions. Some regulation in this area is already in place. But largely local efforts have resulted in inconsistent rules that vary in effectiveness and compromise not only the staggering potential for emission reduction, but also the commercial opportunity and prospective consumer cost savings available. This Note examines the current strategy of state building energy …

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What Happens When Species Move But Reserves Do Not? Creating Climate Adaptive Solutions To Climate Change, Nicholas Whipps Feb 2015

What Happens When Species Move But Reserves Do Not? Creating Climate Adaptive Solutions To Climate Change, Nicholas Whipps

UC Law Journal

Most U.S. laws and regulations are not well-suited to respond to the effects of climate change, and the Endangered Species Act—the central federal law meant to protect threatened and endangered species at all costs—is no different. Conservation banking, an Endangered Species Act policy, is a market-based conservation strategy that incentivizes landowners to conserve species on their land. However, fee simple conservation strategies are ill-suited to protecting species on the move due to climate change. This Note first highlights the inadequacies of the current conservation banking system, then suggests how policy makers can transfer the market-based credit system used in conservation …

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Revisiting Divestment, Nancy Schneider Feb 2015

Revisiting Divestment, Nancy Schneider

UC Law Journal

This Note explores whether state and local legislation passed during the anti-apartheid divestment campaign can serve as a model for trustees of public pension funds to divest their holdings in fossil fuels consistent with their fiduciary duties of loyalty and prudence. The primary case to emerge from the anti-apartheid divestment campaign, Board of Trustees of the Employees Retirement System of the City of Baltimore v. Mayor and City Council of Baltimore City gives some (albeit insufficient) guidance as to whether divestment by trustees of public pension plans of investments in fossil fuels would be a breach of their fiduciary duties. …

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Constitutional Limits On Evidentiary Forfeiture By Wrongdoing Among Conspirators, Christopher Petroni Feb 2015

Constitutional Limits On Evidentiary Forfeiture By Wrongdoing Among Conspirators, Christopher Petroni

UC Law Journal

Four recent decisions in the federal courts of appeals have combined the evidentiary doctrine of forfeiture by wrongdoing with imputed substantive criminal liability among conspirators under Pinkerton v. United States. According to this augmented rule—called the “Cherry rule” after the Tenth Circuit opinion that first enunciated it—a witness’s out-of-court statement is admissible against a defendant if a co-conspirator wrongfully silenced the witness in a manner that was within the scope and in furtherance of the conspiracy, and was reasonably foreseeable. This expansion of the forfeiture by wrongdoing doctrine is inconsistent with the Sixth Amendment’s Confrontation Clause for two reasons: it …

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