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Articles 1 - 30 of 1647
Full-Text Articles in Law
Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen
Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen
Pepperdine Law Review
Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), …
Table Of Contents & Masthead, Sophie Nelson
Table Of Contents & Masthead, Sophie Nelson
Pepperdine Law Review
No abstract provided.
Quit Using Acquittals: The Unconstitutionality And Immorality Of Acquitted-Conduct Sentencing, Brenna Nouray
Quit Using Acquittals: The Unconstitutionality And Immorality Of Acquitted-Conduct Sentencing, Brenna Nouray
Pepperdine Law Review
This Comment examines the phenomenon of acquitted-conduct sentencing—a practice that allows a sentencing judge to enhance a criminal defendant’s sentence due to conduct for which he has already been acquitted. Seventeen-year-old Dayonta McClinton is one of many criminal defendants who have unjustly suffered at the hands of this practice when he received a thirteen-year enhancement because of conduct for which he already received a verdict of not guilty from a jury. This Comment argues that acquitted-conduct sentencing is unconstitutional, as it violates both the reasonable doubt standard required under the Due Process Clause of the Fifth Amendment and the jury …
The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson
The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson
Pepperdine Law Review
The Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey in June 2022 was met with waves of both support and criticism throughout the United States. Several states immediately implemented or began drafting trigger laws that criminalize seeking and providing an abortion. These laws prompted several period-tracking app companies to encrypt their users’ data to make it more difficult for the government to access period- and pregnancy-related information for criminal investigations. This Comment explores whether the Fourth Amendment and U.S. privacy statutes protect users of period-tracking apps from government surveillance. More specifically, this Comment argues that …
The Nonexistent Speedy Trial Right, Colleen Cullen
The Nonexistent Speedy Trial Right, Colleen Cullen
Pepperdine Law Review
The United States Constitution and all fifty states guarantee a speedy trial right for individuals accused of crimes. The controlling United States Supreme Court case, decided over fifty years ago, described the Sixth Amendment as a fundamental right with Fourteenth Amendment Due Process implications. Although the right to a speedy trial is a universally recognized right, this Article compellingly demonstrates the right is actually nonexistent throughout the United States. The COVID-19 pandemic highlighted and exacerbated this previously unrecognized problem in courthouses across the country, which has led to news outlets finally covering the issue of the nonexistent speedy trial. This …
Machines Like Me: A Proposal On The Admissibility Of Artificially Intelligent Expert Testimony, Andrew W. Jurs, Scott Devito
Machines Like Me: A Proposal On The Admissibility Of Artificially Intelligent Expert Testimony, Andrew W. Jurs, Scott Devito
Pepperdine Law Review
With the rapidly expanding sophistication of artificial intelligence systems, their reliability, and cost-effectiveness for solving problems, the current trend of admitting testimony based on artificially intelligent (AI) systems is only likely to grow. In that context, it is imperative for us to ask what rules of evidence judges today should use relating to such evidence. To answer that question, we provide an in-depth review of expert systems, machine learning systems, and neural networks. Based on that analysis, we contend that evidence from only certain types of AI systems meet the requirements for admissibility, while other systems do not. The break …
Table Of Contents And Masthead, Sophie Nelson
Table Of Contents And Masthead, Sophie Nelson
Pepperdine Law Review
No abstract provided.
The "Inherent Powers" Of Multidistrict Litigation Courts, Lynn A. Baker
The "Inherent Powers" Of Multidistrict Litigation Courts, Lynn A. Baker
Pepperdine Law Review
Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their “inherent powers” as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering …
The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson
The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson
Pepperdine Law Review
The Supreme Court is one of our most precious institutions. However, for the last few years, American confidence in the Court has dropped to a new low. Less than 40% of Americans have confidence in the Court and its decisions. Recent revelations regarding luxury trips, gifts, and exclusive access for certain individuals to the Justices have raised questions about whether the Justices understand their basic ethical duties and can act in a fair and impartial manner. As commentators have noted, the Supreme Court stood as the only court in America that was not governed by an ethical code. The question …
Partisanship "All The Way Down" On The U.S. Supreme Court, Lee Epstein
Partisanship "All The Way Down" On The U.S. Supreme Court, Lee Epstein
Pepperdine Law Review
Just as the American public is politically polarized, so too is the U.S. Supreme Court. More than ever before, a clear alignment exists between the Justices’ partisanship and their ideological leanings (known as “partisan sorting”). Disapproval of opposing-party identifiers also appears to have intensified (“partisan antipathy”). This Article offers evidence of both forms of polarization. It shows that partisan sorting has resulted in wide gaps in voting between Republican and Democratic appointees; and it supplies data on “us-against-them” judging in the form of increasing antipathy toward opposite-partisan presidents. Taken collectively, the data point not to law “all the way down,” …
The Supreme Court, Article Iii, And Jurisdiction Stuffing, James E. Pfander
The Supreme Court, Article Iii, And Jurisdiction Stuffing, James E. Pfander
Pepperdine Law Review
Reflecting on the state of the federal judiciary in the aftermath of the Biden Commission report and subsequent controversies, this Article identifies problems with the current operation of both the Supreme Court and the lower courts that make up the Article III judicial pyramid. Many federal issues have been assigned to non-Article III tribunals, courts poorly structured to offer the independent legal assessment that such Founders as James Wilson prized as they structured the federal judiciary. Meanwhile, the Supreme Court devotes growing attention to a slice of highly salient public law questions, including those presented on the shadow docket, thereby …
The Play’S The Thing: A Response To Judge Benjamin Beaton, Aaron J. Walayat
The Play’S The Thing: A Response To Judge Benjamin Beaton, Aaron J. Walayat
Pepperdine Law Review
In a recent speech, later published as an essay, the Hon. Benjamin Beaton of the United States District Court for the Western District of Kentucky shared his critical suggestions against the use of the honorific “Your Honor,” preferring instead the more neutral title “judge.” Judge Beaton’s reason for this preference stems from a fear that the current practice of judicial titles emphasizes status over function, which may inflate the individual judge’s ego while miscommunicating to the public that judges make, rather than find, law. This position, however, is misguided. Judicial titles emphasize the authority of the law through the authority …
Table Of Contents & Masthead, Sophie Nelson
Table Of Contents & Masthead, Sophie Nelson
Pepperdine Law Review
No abstract provided.
Jarkesy V. Sec: Are Federal Courts Pushing The U.S. Toward The Next Financial Crisis?, Jennifer Hill
Jarkesy V. Sec: Are Federal Courts Pushing The U.S. Toward The Next Financial Crisis?, Jennifer Hill
Pepperdine Law Review
In the wake of both the Great Depression and the Financial Crisis of 2008, Congress established and expanded the powers of the Securities and Exchange Commission (SEC). As part of this expansion, the SEC in-house administrative proceedings, designed to adjudicate SEC violations before the SEC’s administrative law judges (ALJs), were born. These in-house proceedings have faced multiple constitutional attacks in the past decade. In the most recent iteration of such challenges, Jarkesy v. SEC, the Fifth Circuit held that the SEC’s in-house proceedings were unconstitutional on three grounds: (1) the in-house proceedings deprived petitioners of their constitutional right to jury …
Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill
Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill
Pepperdine Law Review
In June of 2022, the Supreme Court decided in Kennedy v. Bremerton School District that an Establishment Clause inquiry “focused on original meaning and history” would replace Lemon’s endorsement test. But after announcing the test, the Court neglected to describe or apply it. This Comment attempts to fill that void. After analyzing the Court’s Establishment Clause jurisprudence, this Comment proposes tenets of the history and tradition test and applies those tenets to Allegheny County v. ACLU, a case decided under Lemon. Finally, this Comment concludes by arguing that the history and tradition inquiry supports pluralism, humility, tolerance, and a healthy …
Online Disinhibited Contracts, Wayne R. Barnes
Online Disinhibited Contracts, Wayne R. Barnes
Pepperdine Law Review
There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …
Interpreting Ethics Rules, Samuel J. Levine
Interpreting Ethics Rules, Samuel J. Levine
Pepperdine Law Review
This Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment. Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a …
Table Of Contents & Masthead, Sophie Nelson
Table Of Contents & Masthead, Sophie Nelson
Pepperdine Law Review
No abstract provided.
The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza
The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza
Pepperdine Law Review
Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …
A Haven For Traffickers: How The United States Provides A Legal Safe Haven For Businesses That Rely On Forced Labor In The International Supply Chain, Ramona Lampley
Pepperdine Law Review
Congress enacted the Trafficking Victims Protection Act (“TVPRA” or “Act”) in 2000, which, through its amendments, gives victims of human trafficking, including forced labor or slave labor, a private right of action against those who knowingly benefit from the abusive labor practices perpetrated on them. Even though slave labor, particularly child labor, is a perceived evil in the foreign supply chains of many domestic companies, courts appear uncomfortable with the some of the civil liability provisions of the TVPRA. This Article examines recent cases brought under the TVPRA, and how, in some cases, courts have eviscerated the private right of …
Give Or Take—Is The Droit De Suite A Taking Without Just Compensation?, Jeremy Cohen
Give Or Take—Is The Droit De Suite A Taking Without Just Compensation?, Jeremy Cohen
Pepperdine Law Review
The Constitution mandates Congress to protect the arts and sciences directly by creating an exclusive right called copyright. However, visual artists such as painters, sculptors, and photographers in the United States still cannot participate in the significant profits from the secondary sales of their copyrighted works at public and private auctions. In over eighty countries worldwide, the droit de suite, also known as the Artist Resale Royalty (ARR), grants visual artists such royalties. Unfortunately, the United States currently lacks such a royalty, despite multiple unsuccessful attempts by Congress to pass federal legislation. Although California enacted its own version of the …
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Pepperdine Law Review
Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …
Does Federal Law Ban Mailing Abortion Drugs? A Textual Analysis Of 18 U.S.C. § 1461, Peter Allevato
Does Federal Law Ban Mailing Abortion Drugs? A Textual Analysis Of 18 U.S.C. § 1461, Peter Allevato
Pepperdine Law Review
As the regulation of abortion availability returned to the States, many have grappled with so-called trigger laws: dormant laws that were set to take effect to restrict or ensure access to abortion should constitutional protection be revoked. While the federal government has no true trigger law, it does have long-unenforced laws prohibiting the mailing of “[e]very article or thing designed, adapted, or intended for producing abortion.” 18 U.S.C. § 1461 is an old law, and it has not been enforced for at least fifty years. But the law’s potential effect on the growing practice of mail-distribution of chemical abortion pills …
Blue State Exodus?, Jon D. Michaels, David L. Noll
Blue State Exodus?, Jon D. Michaels, David L. Noll
Pepperdine Law Review
American businesses and families are leaving Blue states in record numbers for destinations like Texas, Florida, and Georgia. This migration of people, businesses, and tax dollars has prompted claims of a “Blue state exodus” prompted by “leftist politicians imposing leftist ideology.” As expressed by Utah’s Senator Mike Lee, the “exodus” proves that “the Left’s policies don’t work.” But does the movement of taxpayers from Blue to Red states really signal a rejection of progressive policies? This Essay argues that, before accepting that interpretation, we should consider another possibility. Perhaps Blue states aren’t overly progressive, but insufficiently so. Paralyzed by political …
Preliminary-Hearing Waivers And The Contract To Negotiate, Michael D. Cicchini
Preliminary-Hearing Waivers And The Contract To Negotiate, Michael D. Cicchini
Pepperdine Law Review
Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Be-cause of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details. When the prosecutor obtains the defendant’s prelim waiver for the promise of future …
Proceeding Pro Se: Misguided Limitations On The Prison Mailbox Rule In Cretacci V. Call, Eleanor Ritter
Proceeding Pro Se: Misguided Limitations On The Prison Mailbox Rule In Cretacci V. Call, Eleanor Ritter
Pepperdine Law Review
Under the “prison mailbox rule,” an inmate’s notice of appeal in either a criminal or civil case is considered filed at the moment the notice is given to prison authorities to be mailed. But the prison mailbox rule originated as a common law rule––having developed in Fallen v. United States and Houston v. Lack––and was not codified in the Federal Rules of Appellate Procedure until 1993. In light of its complex origins, circuit courts have split over to whom and to which types of filings the rule should apply. More specifically, courts have disagreed over whether the prison mailbox rule …
Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye
Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye
Pepperdine Law Review
Online spaces have undoubtedly played a significant role in facilitating discourse and the exchange of information. With this increased discourse, however, digital platforms have also seen a rise in harmful or problematic content shared online––including health misinformation, hate speech, and child sex abuse material, among others. Many commentators have put the blame for this trend on Section 230, arguing that Section 230 has enabled the spread of harmful content and suggesting that Section 230 ought to be amended or replaced. This Essay, by contrast, argues that the current narrative about Section 230 gets it wrong. In reality, Section 230 has …
Table Of Contents, Masthead, And Dedication, Maribeth Beyer
Table Of Contents, Masthead, And Dedication, Maribeth Beyer
Pepperdine Law Review
No abstract provided.
Know When To Hold Them, When To Fold Them, And When To Walk Away: Tiktoks Are Professional Sports Franchises' Ace In Collective Bargaining Negotiations, Angelica Varona
Know When To Hold Them, When To Fold Them, And When To Walk Away: Tiktoks Are Professional Sports Franchises' Ace In Collective Bargaining Negotiations, Angelica Varona
Pepperdine Law Review
TikTok, the social media app, has become both a central force in entertainment, creating a slew of influencers and young celebrities, as well as an important tool in all things branding and marketing. Athletes have recognized the value of social media and fan engagement and have taken to becoming content-creators on the platform. The growing presence of professional athletes on the app brings up important issues of copyrightability and ownership of the content they are producing. This Comment considers the nature of athlete content-creation on TikTok as well as the employment scheme and contractual responsibilities that form a part of …
Zoning By A Thousand Cuts, Sara C. Bronin
Zoning By A Thousand Cuts, Sara C. Bronin
Pepperdine Law Review
Zoning is increasingly viewed as a constraint on the nation’s housing supply, and as zoning enters its second century, there is a strong drumbeat for reform. Across the country, reformers have targeted the elimination of single-family zoning, pointing to research showing that single-family zoning drives up development costs, degrades the environment, and homogenizes communities. While allowing more multi-family options could help address these issues, reformers should not exclusively focus on the elimination of single-family zoning. Process requirements including mandatory public hearings, and substantive requirements involving lot configuration, building size, and occupancy, among other things, play a significant role in determining …