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Articles 1 - 30 of 32
Full-Text Articles in Law
Domestic Violence Victims A Nuisance To Cities, Filomena Gehart
Domestic Violence Victims A Nuisance To Cities, Filomena Gehart
Pepperdine Law Review
Unless municipal nuisance ordinances change, domestic violence victims can face eviction just for calling the police. Nuisance ordinances generally impose fines on a property owner or landlord when the police are called to respond to incidents of crime a certain number of times at the same residence. Many nuisance ordinances also revoke a landlord’s rental license if a property is deemed a nuisance. However, many of these nuisance ordinances do not have an exception for incidents of domestic violence and, consequently, victims are scared to call 911 or request police assistance. This comment surveys the development of nuisance laws and …
Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier
Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier
Pepperdine Law Review
When bankruptcy courts attempt to define the business trust, the “decisions are sharply, and perhaps hopelessly, divided.” The Bankruptcy Code, which guides the determinations of bankruptcy courts, specifically lists business trusts as eligible for protection. However, the Code does not define what a business trust is and does not list any criteria for determining when a trust is a business trust. The lack of a concrete definition has led many courts to formulate their own definitions of business trusts. While the courts hoped that they would eventually settle on a uniform test to tackle this issue, it has yet to …
Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra
Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra
Pepperdine Law Review
Imagine applying for a job, and as part of your application process, your prospective employer asks for a photograph. You, as an eager candidate, comply with the request and, unbeknownst to you, the employer runs your picture through a software program that scans you for any common genetic diseases and that estimates your longevity. Alas, your face indicates that you may die young. No job for you. Although this sounds like science fiction, we may not be that far off from this scenario. In June 2014, scientists from Oxford reported that they have developed a facial recognition program that uses …
Emulsified Property, Jessica A. Shoemaker
Emulsified Property, Jessica A. Shoemaker
Pepperdine Law Review
The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This Article, however, reveals an even more complicated issue that …
Do Lawyers Matter? The Effect Of Legal Representation In Civil Disputes, Emily S. Taylor Poppe, Jeffrey J. Rachlinski
Do Lawyers Matter? The Effect Of Legal Representation In Civil Disputes, Emily S. Taylor Poppe, Jeffrey J. Rachlinski
Pepperdine Law Review
With declining law school enrollments, rising rates of pro se litigation, increasing competition from international lawyers and other professionals, and disparaging assessments from the Supreme Court, the legal profession is under increasing attack. Recent research suggesting that legal representation does not benefit clients has further fueled an existential anxiety in the profession. Are lawyers needed and do they matter? In this Article, we review the existing empirical research on the effect of legal representation on civil dispute outcomes. Although the pattern of results has complexities, across a wide range of substantive areas of law (housing, governmental benefits, family law, employment …
Children’S Anatomy V. Children’S Autonomy: A Precarious Balancing Act With Preimplantation Genetic Diagnosis And The Creation Of “Savior Siblings”, Marley Mcclean
Pepperdine Law Review
On February 3, 2015, Members of the United Kingdom’s Parliament, in an historical move, voted to approve the creation of human beings from three different parents, i.e., the creation of three-person DNA. In doing so, it became the first country ever to approve laws regulating such a procedure. The procedure uses a customized version of in vitro fertilization (IVF) to mix the DNA of two parents with the healthy mitochondria of a donor woman. While three-person DNA is not yet practiced in the United States, there is a controversial ART procedure practiced and unregulated in the United States that also …
Considering Consequences: Autonomy’S Missing Half, Catherine A. Hardee
Considering Consequences: Autonomy’S Missing Half, Catherine A. Hardee
Pepperdine Law Review
In a subtle but discernible trend, courts, commentators, and policymakers increasingly use autonomy-based justifications to support expanding economic rights. Their use of autonomy, however, is inconsistent with the concept of traditional liberal autonomy that proponents of economic rights embrace. This is because many, if not most, economic choices have some measure of consequences ameliorated by state action. This Article exposes the conceptual incoherence of this approach and argues that these autonomy-based arguments are invalid when they fail to acknowledge the vital role consequences play in constituting liberal autonomy. It also demonstrates that the failure to account for consequences in determining …
Hospital Chargemaster Insanity: Heeling The Healers, George A. Nation Iii
Hospital Chargemaster Insanity: Heeling The Healers, George A. Nation Iii
Pepperdine Law Review
Hospital list prices, contained in something called a chargemaster are insanely high, often running 10 times the amount that hospitals routinely accept as full payment from insurers. Moreover, the relative level of a particular hospital’s chargemaster prices bears no relationship to either the quality of the services the hospital provides or, to the cost of the services provided. The purpose of these fictitious list prices is to serve as a starting point or anchoring point, for negotiations with third-party payers regarding the amount that they will actually pay the hospital for it’s goods and services. Ironically, there is widespread agreement, …
Putting Public Law Into "Private" Sport, Dionne L. Koller
Putting Public Law Into "Private" Sport, Dionne L. Koller
Pepperdine Law Review
Across all levels of sport — professional, Olympic, intercollegiate, interscholastic, and youth recreational — the prevailing view is that the government should not take an active role in regulating athletics. As a result, there are relatively few federal or state statutes directed at regulating sports, and those that are aimed at sports primarily serve to support the professional sports industry. Moreover, courts show great deference to sports leagues and administrators, most often applying law in a way that insulates and empowers them. This creates a climate where leagues and administrators are permitted wide latitude to structure and conduct their respective …
Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt
Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt
Pepperdine Law Review
No abstract provided.
Effects Of International Judgments Relating To Awards, Maxi Scherer
Effects Of International Judgments Relating To Awards, Maxi Scherer
Pepperdine Law Review
This Article looks at those judgments relating to international arbitral awards (award judgments) and, more precisely, at their extraterritorial effects. It analyzes whether an award judgment rendered in one jurisdiction has effects in other jurisdictions. For instance, if the award has been set aside6 in country A, does the set-aside judgment have effects on enforcement proceedings in country B? Similarly, if country C refuses to enforce an award on the basis that the tribunal has no jurisdiction, does this have a preclusive effect on enforcement proceedings pending in country D? These questions have been addressed in a number of recent …
Bg Group And "Conditions" To Arbitral Jurisdiction, Alan Scott Rau, Andrea K. Bjorklund
Bg Group And "Conditions" To Arbitral Jurisdiction, Alan Scott Rau, Andrea K. Bjorklund
Pepperdine Law Review
Although the Supreme Court has over the last decade generated a robust body of arbitration caselaw, its first decision in the area of investment arbitration under a Bilateral Investment Treaty was only handed down in 2014. BG Group v. Argentina was widely anticipated and has attracted much notice, and general approval, on the part of the arbitration community. In this paper we assess the Court’s decision from two different perspectives -- the first attempts to situate it in the discourse of the American law of commercial arbitration; the second considers it in light of the expectations of the international community …
Bg Group V. Republic Of Argentina: A Supreme Misunderstanding Of Investment Treaty Arbitration, Jarrod Wong
Bg Group V. Republic Of Argentina: A Supreme Misunderstanding Of Investment Treaty Arbitration, Jarrod Wong
Pepperdine Law Review
No abstract provided.
Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer
Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer
Pepperdine Law Review
No abstract provided.
Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal
Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal
Pepperdine Law Review
Delaware has become increasingly active in adopting innovative arbitration laws. In 2009, Delaware adopted a confidential system of “arbitration” conducted by sitting Court of Chancery judges, which was subsequently held unconstitutional as violating the First Amendment right of public access to the courts. In 2015, it enacted the Delaware Rapid Arbitration Act (DRAA), creating a system of expedited arbitration in Delaware. Among other things, the DRAA sets mandatory time limits for the completion of arbitration proceedings (with financial penalties for arbitrators who fail to comply), restricts the degree of court involvement in the arbitration process, and provides for expeditious review …
Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau
Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau
Pepperdine Law Review
No abstract provided.
Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo
Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo
Pepperdine Law Review
What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …
Sticks And Stones May Break My Bones, But Words Will Always Hurt Me: Why California Should Expand The Admissibility Of Prior Acts Of Child Abuse, Lindsay Gochnour
Sticks And Stones May Break My Bones, But Words Will Always Hurt Me: Why California Should Expand The Admissibility Of Prior Acts Of Child Abuse, Lindsay Gochnour
Pepperdine Law Review
This Comment seeks to explore the effect that the admissibility of prior bad acts evidence would have on child maltreatment cases and the benefits that would be afforded to child abuse victims if they were provided the same legal protections as victims of other crimes. This Comment argues that expanding the California Evidence Code to allow the admission of prior acts of psychological and emotional child maltreatment would make great progress for the protection of child abuse victims and the prosecution of their (often losing) cases.
Surviving The Borrower: Assumption, Modification, And Access To Mortgage Information After A Death Or Divorce, Sarah Bolling Mancini, Alys Cohen
Surviving The Borrower: Assumption, Modification, And Access To Mortgage Information After A Death Or Divorce, Sarah Bolling Mancini, Alys Cohen
Pepperdine Law Review
The death of a borrower too often brings the surviving spouse or other heirs to the brink of foreclosure. Transfer of the marital home to a non-borrower spouse through divorce may lead to the same problems. Mortgage servicers tell these successor homeowners that because they are not the borrower on the loan, they are not entitled to any information about the mortgage secured by their home and cannot apply for a loan modification, even if they are struggling with the payments. In fact, successors have a right to information, the right to assume liability for the loan, and the right …
Surrogacy As The Sale Of Children: Applying Lessons Learned From Adoption To The Regulation Of The Surrogacy Industry's Global Marketing Of Children, David M. Smolin
Surrogacy As The Sale Of Children: Applying Lessons Learned From Adoption To The Regulation Of The Surrogacy Industry's Global Marketing Of Children, David M. Smolin
Pepperdine Law Review
This Article argues that most surrogacy arrangements, as currently practiced, constitute the “sale of children” under international law and hence should not be legally legitimated. Therefore, maintaining the core legal norm against the sale of children requires rejecting claims that there is a right to procreate through surrogacy. Since a fundamental purpose of law in the modern era of human rights is to protect the inherent dignity of the human person, a claimed legal right that is built upon the sale of human beings must be rejected. This Article refutes common arguments claiming that commercial surrogacy does not constitute the …
Special Treatment Stigma After The Ada Amendments Act, Nicole Buonocore Porter
Special Treatment Stigma After The Ada Amendments Act, Nicole Buonocore Porter
Pepperdine Law Review
This article explores a unique source of stigma suffered by individuals with disabilities in the workplace. Instead of focusing on those with the most stigmatizing disabilities, I focus on those individuals who have disabilities that are not perceived as very severe, yet they still suffer stigma. These individuals are stigmatized because of the special treatment they receive (or are perceived as receiving) through workplace accommodations provided pursuant to the Americans with Disabilities Act (ADA). In prior work, I have called this phenomenon “special treatment stigma,” the harm that arises from receiving special treatment in the workplace, especially when co-workers believe …
Litigating In The 21st Century: Amending Challenges For Cause In Light Of Big Data, Andrew Kasabian
Litigating In The 21st Century: Amending Challenges For Cause In Light Of Big Data, Andrew Kasabian
Pepperdine Law Review
The amount of data generated daily is growing exponentially. The majority of this data is unstructured data. Big Data analytics provides the capability to analyze sets of unrelated data to find hidden and meaningful correlations and predict an individual’s future actions. Therefore, Big Data can alter trial preparation by opening up new sets of information for lawyers to analyze in the jury selection process. Privacy concerns may follow Big Data’s incorporation because Big Data aggregates an individual’s information and predicts future actions. This Comment details how Big Data will provide a net benefit to trial preparation. In order to protect …
Redefining “Peril”—Abating The Interest On A Tax Deficiency For Good Faith Reliance On Irs Publications, Brady Cox
Pepperdine Law Review
Many taxpayers rely on guidance materials the IRS provides in order to comprehend the United States Tax Code and pay an accurate tax. However, many, if not all, of these taxpayers would likely be startled to learn that their reliance on these IRS guidance materials is perilous. That is, that reliance upon these guidance materials will not support a taxpayer’s tax treatment decisions if the IRS decides that the decisions were incorrect under substantive law. However, because the courts have not decisively concluded which financial consequences a taxpayer faces or escapes by relying on informal IRS guidance, “peril” remains undefined. …
Consumption Property In The Sharing Economy, Shelly Kreiczer-Levy
Consumption Property In The Sharing Economy, Shelly Kreiczer-Levy
Pepperdine Law Review
Various doctrines from different areas of the law provide special legal protection for property that is produced and used for personal use, creating the legal category of "consumption property." Zoning, criminal procedure, discrimination, foreclosure and bankruptcy, taxes and eminent domain all treat property for consumption differently than commercial property. Recently, a new social phenomenon known as the sharing economy allows owners to rent out personal assets such as a room in their home, their private car, a bicycle, and even pets. The sharing economy challenges the foundational distinction between privately used property and commercial property and leads to fragmentation of …
The Indefinite Deflection Of Congressional Standing, Nat Stern
The Indefinite Deflection Of Congressional Standing, Nat Stern
Pepperdine Law Review
Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court …
King V. Burwell: What Does It Portend For Chevron’S Domain?, Leandra Lederman, Joseph C. Dugan
King V. Burwell: What Does It Portend For Chevron’S Domain?, Leandra Lederman, Joseph C. Dugan
Pepperdine Law Review
This short Essay considers what the U.S. Supreme Court’s decision in King v. Burwell, 135 S. Ct. 2480 (2015), suggests about the future of Chevron deference. It first compares the Court’s approach in King with its approach in two other “extraordinary” nondeference cases, FDA v. Brown & Williamson Tobacco Corp. and Gonzales v. Oregon. It next situates King in a broader context of developments in the Court’s Chevron jurisprudence. The Essay concludes that, while King may simply be a sui generis case involving an important social program, it may also signal a fading appetite for deference among the Justices. - …
The (Perhaps) Unintended Consequences Of King V. Burwell, Kristin E. Hickman
The (Perhaps) Unintended Consequences Of King V. Burwell, Kristin E. Hickman
Pepperdine Law Review
The Supreme Court’s decision in King v. Burwell surprised many people, not because of its outcome but because, even as the Court ultimately agreed with the IRS’s interpretation of the statute, the Court expressly denied the IRS Chevron deference. As regards that result, this Essay makes three points. First, the Chevron discussion in King was not incidental, but the IRS and taxes were not foremost on the Court’s mind. Rather, King reflects a careful effort by Chief Justice Roberts to accomplish, through alternative framing, a broader curtailment of Chevron’s scope that he advocated unsuccessfully two terms earlier in City of …
King V. Burwell: Where Were The Tax Professors?, Andy S. Grewal
King V. Burwell: Where Were The Tax Professors?, Andy S. Grewal
Pepperdine Law Review
King v. Burwell drew unusually wide attention for a tax case. Members of the public, the mainstream media, health care professionals, Washington think tanks, and constitutional, administrative, and health law professors, to name a few groups, all debated the merits of the challengers’ arguments. Everyone, it seems, had something to say about the case — except tax professors. This contribution to Pepperdine Law Review’s Tax Law Symposium explores three potential reasons for the tax professoriate’s reticence. It concludes that none of those reasons withstand scrutiny, and going forward, tax professors should play a more active role in cases like this.
Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker
Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker
Pepperdine Law Review
In our contribution to this symposium on King v. Burwell, we explore two aspects of the Chief Justice’s opinion where it is hard to ignore the fingerprints of a tax lawyer. First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as interpreter with an approach that tracks tax law’s substance-over-form doctrine. Second, as to King’s sweeping administrative law holding, the Chief crafts a new major questions doctrine that could significantly cut back on federal agency lawmaking authority. Yet he seems to develop this doctrine against the backdrop of tax exceptionalism, and thus this development may have …
The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson
The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson
Pepperdine Law Review
Chevron is receding in tax, not because of any resurgence of tax exceptionalism but because it is receding everywhere. The case will continue to be cited by courts and masticated by commentators, but the unresolved – indeed worsening — conceptual, definitional, and practical incongruities of its doctrine rob it of operational force. King, which the Supreme Court conspicuously chose to resolve without “help” from Chevron, is another mile-marker on Chevron’s downward road. This article maps that road.