Law Commons^™

Marvin Claims At Death, Patricia A. Cain

Faculty Publications

In 1976, the California Supreme Court handed down its decision in Marvin v. Marvin, recognizing the enforcement of contract and equitable claims that could be asserted when an unmarried partnership was dissolved. Most states have followed the basic holding in Marvin, although important differences in state law have developed over time. Recently, the Uniform Law Commission has approved a uniform act dealing with these issues, the Uniform Cohabitants' Economic Remedies Act (UCERA)

Much has been written about the rights that unmarried partners can assert against each other. Most of the scholarship has focused on the rights that arise …

Does The Community Choice Aggregation Approach Advance Distributed Generation Development? A Case Study Of Municipalities In California, Robin M. Rotman, Jun Deng

Faculty Publications

Globally, decentralized energy systems are gaining popularity due to their potential for energy accessibility, energy resilience, and sustainability benefits. Existing research on an energy system decentralization approach, community choice aggregation (CCA), shows its ability to lower energy costs and increase renewable electricity consumption for U.S. communities. Nevertheless, research on the relationship between CCA and distributed electricity generation development is lacking. This paper fills this gap by investigating if the CCA approach associates with distributed generation capacity interconnection in California municipalities. The finding shows that although the average capacity has increased for all municipalities throughout the study period, contrary to proponents’ …

Putin's Matryoskha: A War Reparations Facility For Rebuilding Ukraine, Lev E. Breydo

Faculty Publications

This Article addresses a critical, trillion-dollar question: How do we hold Russia accountable for the reconstruction of Ukraine? The nation has been devastated by Russia's brutal war of aggression, with tens of thousands killed, millions displaced and its economy in shambles. The enormity of the problem cannot be overstated.

Existing proposals to support Ukraine, including many from prominent scholars, largely focus on seizing Russian assets, particularly central bank reserves "frozen" by sanctions. Such strategies, however, are legally problematic-- likely well beyond the scope of Presidential authority-- and financially insufficient. Moreover, while prospective new legislation could expand presidential powers, it risks …

References To Beatles Songs In Advocacy And Judicial Opinions, Douglas E. Abrams

Faculty Publications

This article surveys the indelible mark that the Beatles (Paul McCartney, John Lennon, George Harrison, and Ringo Starr) continue to leave on courts in the United States more than half a century after the quartet burst onto the American scene with their three television appearances on the Ed Sullivan Show in February of 1964, six years before the band’s breakup.

The Mindful First Amendment, Gary Myers

Faculty Publications

The mindfulness movement has begun to play an expanding role in personal well-being and in society more generally. Although there is an active push for mindfulness in law, its primary focus is on ways in which mindfulness techniques can help lawyers in their personal and professional lives. This article explores the possible contributions of mindfulness to the widely recognized challenges facing freedom of speech and freedom of the press in an era of severe cultural and political polarization.

A Collaborative Model: The Villanova Law Library, Amy A. Emerson

Faculty Publications

No abstract provided.

The New Ali Restatement And The Doctrine Of Non-Self-Executing Treaties, David Sloss

Faculty Publications

No abstract provided.

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Faculty Publications

No abstract provided.

Preventing Vicarious Trauma And Encouraging Self-Care In Clinical Legal Teaching, Deeya Haldar, Sarah Katz

Faculty Publications

Vicarious trauma, sometimes called “compassion fatigue” or “secondary trauma,” is a term for the effect that working with survivors of trauma may have on counselors, therapists, doctors, attorneys, and others who directly help them. Vicarious traumatisation refers to harmful changes that occur in professionals’ views of themselves, others, and the world as a result of exposure to the graphic or traumatic experiences of their clients. While it is unusual for law students to experience vicarious trauma in a clinical legal education setting, there are good reasons to introduce the concept of vicarious trauma and measures to prevent vicarious trauma through …

Attaining Academic Tenure, Amy A. Emerson, Charlotte Schneider

Faculty Publications

No abstract provided.

Did The Washington Supreme Court Rule Correctly On The Capital Gains Tax?, David Gamage, Jared Walczak

Faculty Publications

The following two essays are David Gamage’s and Jared Walczak’s opening statements in their debate over Quinn v. Washington,1 the recent Washington Supreme Court decision upholding a state tax on capital gains as an excise tax. Gamage and Walczak, who differ on the decision’s merits and its implications for future Washington tax jurisprudence, intend to follow these statements with rebuttals and conclusions in a subsequent article.

Conceptualising Rural Access To Justice As Supply Chains Primed For Transformation, Hannah Haksgaard, Amanda Kool

Faculty Publications

This chapter is shared with express permission of Bloomsbury Academic. The full book is available at: https://www.bloomsbury.com/us/access-to-justice-in-rural-communities-9781509951642/ The justice gap persists in many rural parts of the world due to a confluence of economic, cultural, and professional factors at play throughout the justice system and society at large. This justice gap means that people in rural areas experience institutions of justice – including access to lawyers and other legal advice – differently than people in urban areas. Travel, distance, the rural lawyer shortage, and other factors create this difference. No single factor or institution can be blamed for the rural …

Tort Reform & The Takings Clause, Bailey D. Barnes

Faculty Publications

The United States tort reform movement has capped noneconomic damage awards in many jurisdictions, thereby preventing the most injured plaintiffs from being fully compensated for their suffering. While litigants have asserted numerous state constitutional challenges to these tort recovery limits, with varying degrees of success, aggrieved plaintiffs have underutilized the Fifth Amendment's Takings Clause. This Article advocates that judicial reduction of a jury's noneconomic damage calculation after the court has informed the successful plaintiff of the full verdict is a regulatory taking in violation of the federal Takings Clause, as incorporated against the states through the Fourteenth Amendment.

A Takings …

Jurisdictional Conflicts In Adult Guardianship, David M. English

Faculty Publications

The case of Britney Spears has shined a spotlight on guardianship, a subject area in which there has been increasing interest in recent years. The events surrounding Ms. Spears s case all occurred in a single jurisdiction, California. But with Americas increasingly mobile population, an individual for whom a guardianship is sought may have contacts with multiple states and, in some cases, foreign countries. Furthermore, following the appointment of a guardian, the guardian or individual subject to guardianship may move to another jurisdiction; it may become necessary to transfer the guardianship proceeding to another jurisdiction or seek ratification of a …

What Lawyers Can Teach Their Employed Law Students About 'Impactful Legal Writing', Douglas E. Abrams

Faculty Publications

This article concerns the value of teaching employed law students about the potency of “impactful legal writing” – legal writing that can have a substantial impact on someone other than the student writer. Much of the employer’s most instructive teaching about impactful legal writing occurs at the beginning of an assignment, rather than solely during review after the student has completed the assignment. This article identifies four ways an employed law student’s impactful writing when fulfilling assignments differs from the effect of students’ academic writing in law school. Each of the four ways enables the employer to deliver practical lessons …

Religion, Discrimination, And The Future Of Public Education, Derek W. Black

Faculty Publications

The Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools.

While these changes would drain enormous resources from an already underfunded public education system, even more important interests are at stake: antidiscrimination and basic core curriculum. More specifically, …

Myth-Busting Restorative Justice: Uncovering The Past And Finding Lessons In Community, Aparna Polavarapu

Faculty Publications

A common narrative about modern restorative justice is that it is a revival of historic and indigenous justice practices that have been practiced around the world. Critics of this narrative call it a myth, arguing that the claim is overbroad and unsupported by existing evidence. Embedded in this conversation are questions about how to respect the contributions of indigenous traditions and avoid whitewashing. Such an overwhelmingly broad claim tends to lead to romanticization and whitewashing of indigenous traditions, serving the needs of largely white, Western advocates in yet another colonial endeavor. But ignoring the indigenous contribution to restorative justice altogether …

The Racialized Violence Of Police Canine Force, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Governance Seams, Brett Frischmann, Paul Ohm

Faculty Publications

This Essay formalizes the concept of governance seams and develops theories for what they enable; how they arise; why they are some- times dismantled; and how, why, and when regulators might step in to protect endangered governance seams or to create new ones. Governance seams are socially constructed boundaries, borders, and interfaces that harness friction-in-design to enable governance. Governance seams mediate interactions among components of sociotechnical systems and between different parties and contexts. Delineating boundaries, borders, and interfaces as loci of transparency, coordination, and oversight supports mechanisms for deliberation, contestation, and protection, both by those within and those outside the …

Use Of Natural Language Processing (Nlp) In Civil Case Management: A Report On Three Proof Of Concept Projects, Paula Hannaford-Agor, Jannet Okazaki

Faculty Publications

In 2016, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) endorsed recommendations to leverage technology to improve civil case management. In particular, Natural Language Processing (NLP) and related tools could be used to support two areas of civil case processing: sorting cases at filing based on the anticipated level of judicial involvement in case management, and confirming that essential procedural requirements have been satisfied before entering final judgments in cases.

To explore the feasibility of NLP to support court operations in these two areas, the National Center for State Courts (NCSC) designed three distinct …

Adversarial Election Administration, Rebecca Green

Faculty Publications

As Americans, we are conditioned to believe that involving partisans in the administration of elections is inherently problematic. Understandably. The United States is a major outlier; virtually every other developed democracy mandates nonpartisan election administration. Whether on the left or right— especially since the 2020 election—we are barraged with headlines about actual or feared partisanship on the part of those who run our elections. What this narrative misses, however, is a crucial and underrecognized fact: by design, partisans have always played central roles at every level of U.S. election administration. What is more, partisans are baked into the U.S. election …

Criminal Justice Reform And The Centrality Of Intent, Cynthia V. Ward

Faculty Publications

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system. These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice. But less attention has been given to reforming the substantive content of the criminal law—specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in …

Trends In China-Africa Economic Relations And Dispute Settlement, Won Kidane

Faculty Publications

The rapid rise in the last two decades of China-Africa economic interactions in trade, investment, construction projects, and loans require sustained inquiry into the substantive rules of engagement and mechanisms of dispute settlement. Evidently, however, it would quickly emerge that the improvements in supranational legal frameworks have not kept pace with the growing scale and complexity of the economic interactions. While trade relations between China and Africa are theoretically subject to the same multilateral World Trade Organization (WTO) rules, they are in practice mostly based on informal unilateral concessions. Moreover, investment relations are partially governed by fragmented and mostly outdated …

The Critique Is On The Glass: The Extension Of Museum-Presentation Techniques To Substantively Advance Law School Pedagogy, Rachel H. Smith

Faculty Publications

(Excerpt)

In The Writing’s on the Wall: Using Multimedia Presentation Techniques from the Museum World to Improve Law School Pedagogy, Professor Cecilia A. Silver demonstrates how traditional law school teaching would benefit from embracing museum techniques. The Writing’s on the Wall offers museum presentation principles as a corrective to old-fashioned law teaching. And they certainly are. But they can be much more.

The museum techniques that the article describes are a starting point for thinking about museums as a useful analog to law schools, especially in confronting the biases, hierarchies, and injustices of the past and present. The Writing’s …

Does Mitochondrial Replacement Therapy Violate Laws Against Human Cloning?, Kerry L. Macintosh

Faculty Publications

All human beings have mitochondria within their cells that produce energy.1 Most of us inherit healthy mitochondria through the eggs of our mothers,2 but some of us are not so lucky. Mutations in mitochondrial DNA (mtDNA) can cause these tiny organelles to function improperly and disrupt tissues that require a lot of energy, like the brain, kidney, liver, heart, muscle, and central nervous system.3 For example, a specific mtDNA mutation induces Leigh syndrome, a condition in which seizures and respiratory failure lead to decline in mental and motor skills, disabil- ity, and death.4 Mitochondrial replacement therapy (MRT) offers a solution …

The Texas Second Chance Non-Disclosure/Sealing Gap, Colleen Chien

Faculty Publications

Texas Gov. Code Chap. 411 allows individuals whose criminal records meet certain conditions to non-disclose or seal their records. Ascertaining, then applying the law to the criminal profiles of Texans with convictions or deferred adjudications, as reflected in the Texas Computerized Criminal History System database (CCH) obtained from the Texas Department of Public Safety (described in Appendix B), as well as a sample of 2,362 criminal histories, and then 4 extrapolating to the estimated population of 4.8M individuals in the state with conviction records and estimated population of 7M individuals in the state with any record we estimate the share …

The Financial Impact Of Lost Licenses In Texas, Colleen Chien

Faculty Publications

No abstract provided.

Promoting Women's Advancement In The Judiciary In The Midst Of Backlash: A Comparative Analysis Of Representation And Jurisprudence In Key Domestic And International Fora, Shruti Rana

Faculty Publications

Women's advancement in the judiciary of the United States has been slow and uneven, and has long lagged behind other nations. Parity in representation remains distant, and the gains to date vulnerable to changes in administrations and fluctuating levels of state commitment to gender equality, with the recent global backlash to gender equality and international norms and institutions providing a critical example of this fragility. In this light, this Article argues that gender parity in the judiciary should not be viewed as merely a laudable goal. Rather, representation and parity should be viewed as fundamental state legal obligations under international …

Achieving The Achievable: Realistic Labor Law Reform, Rafael Gely

Faculty Publications

A common reprise among labor activists and scholars has been that for the fortunes of labor to change, the law must change. Prompted perhaps by a seeming surge in labor movement activity over the past few years, including headline-grabbing strikes and recent union victories at several U.S. Starbucks locations, various labor law activists and scholars have called to seize the moment and proposed the enactment of comprehensive labor law reform. We argue in this Article that broad-scale labor law reform is unlikely to be enacted by the current U.S. Congress or even have all its provisions pass muster when potentially …

The Clinic As A Site Of Grounded Pedagogy, Madalyn K. Wasilczuk

Faculty Publications

Legal education tends to focus on teaching students federal law from hefty casebooks, inculcating the ability to "think like lawyers." In a sea of Socratic lectures and hypotheticals, students often take refuge in clinics as an island of practical skills-building, client centeredness, and individual fulfillment. Yet even clinics sometimes fail to highlight for students how the place where they practice, with its particular political context and history, shapes their clients' lives and legal problems. This Article describes the law school clinic as a site of grounded pedagogy: a teaching method that centers the con­nection between local history and the present …