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Articles 31 - 60 of 1647
Full-Text Articles in Law
Faux Advocacy In Amicus Practice, James G. Dwyer
Faux Advocacy In Amicus Practice, James G. Dwyer
Pepperdine Law Review
Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …
Lemmon Leads The Way To Algorithm Liability: Navigating The Internet Immunity Labyrinth, Tyler Lisea
Lemmon Leads The Way To Algorithm Liability: Navigating The Internet Immunity Labyrinth, Tyler Lisea
Pepperdine Law Review
Congress passed Section 230 at the dawn of the internet era to protect innovators from traditional publisher tort liability. At the time, the internet consisted primarily of basic message boards and informational pages. Courts have interpreted Section 230 to provide internet platforms with sweeping immunity from liability for third-party content. The statute has aged poorly and is now ill-suited for today’s internet tools. Modern social media platforms are more than message board intermediaries because they actively shape and select the information pushed to users via engineered, engagement-enhancing algorithms. Engagement algorithms are not merely neutral tools; web developers intentionally design them …
Teacher Shortages And The Fundamental Right To Education In California, Chris Yarrell
Teacher Shortages And The Fundamental Right To Education In California, Chris Yarrell
Pepperdine Law Review
That a qualified teacher workforce functions as the most important factor affecting student learning and achievement is beyond dispute. Yet, the right to education—which is a state obligation codified within all fifty 50 state constitutions—has been vindicated largely within the province of school finance litigation. Indeed, for nearly five decades, education litigants have brought school finance disputes in virtually every state, succeeding in more than half of them. Despite the hard-won victories notched by education litigants over this time, however, courts adjudicating school finance disputes have largely failed to move beyond declaring simple proscriptions on facially unequal school funding regimes. …
Table Of Contents And Masthead, Maribeth Beyer
Table Of Contents And Masthead, Maribeth Beyer
Pepperdine Law Review
The 2022 Pepperdine Law Review Symposium entitled, A Faster Way Home – Removing Barriers to Increase America’s Housing Supply, brought together scholars from prestigious universities and law schools, law firms, and on-the-ground community members to evaluate the barriers blocking the way to closing the nation’s housing deficit, including local opposition, cost inhibitions, zoning restrictions, and entitlements. They presented original research and findings about how the housing crisis has reached such heights because of zoning law, restrictive uses, and city board decisions. Presenting through panels and speeches, these scholars provided valuable insight into the housing crisis across the country, but especially …
The Power Of State Legislatures To Invalidate Private Deed Restrictions: Is It An Unconstitutional Taking?, Ken Stahl
Pepperdine Law Review
Over the past several years, state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations (HOAs). In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs, and flags, California has moved much …
Variances: A Canary In The Coal Mine For Zoning Reform?, John J. Infranca, Ronnie M. Farr
Variances: A Canary In The Coal Mine For Zoning Reform?, John J. Infranca, Ronnie M. Farr
Pepperdine Law Review
There is perhaps no area of land use law where practice departs more from legal doctrine than the realm of zoning variances. According to the legal doctrine, variances are to be granted sparingly, providing a “safety valve” that alleviates unique hardships encountered by a property owner. In practice, variances are granted at high rates—often around ninety percent of applications are approved—and, in some jurisdictions, in high volumes. In such cases, variances effectively serve as a rezoning, enabling jurisdictions to permit otherwise prohibited uses and allow growth and development to occur without addressing needed zoning reforms. By allowing neighbors the opportunity …
Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O'Neill, Eric Biber, Nicholas J. Marantz
Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O'Neill, Eric Biber, Nicholas J. Marantz
Pepperdine Law Review
California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …
Growth ≠ Density: Zoning Deregulation And The Enduring Problem Of Sprawl, Christopher Serkin, Kelsea Best
Growth ≠ Density: Zoning Deregulation And The Enduring Problem Of Sprawl, Christopher Serkin, Kelsea Best
Pepperdine Law Review
According to its many critics, zoning bears significant responsibility for the housing crisis in America and for promoting unsustainable development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land-consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to promote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will almost certainly promote growth but may …
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Pepperdine Law Review
While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …
Table Of Contents And Masthead, Maribeth Beyer
Table Of Contents And Masthead, Maribeth Beyer
Pepperdine Law Review
No abstract provided.
Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk
Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk
Pepperdine Law Review
This Comment examines the phenomenon of prison gerrymandering, a practice that involves counting prisoners as residents of the counties where their state correctional facilities are located—rather than in their home communities—for redistricting and representational purposes. This practice of counting inflates the voting power of rural, white districts with large prison complexes and diminishes the voting power of minority communities. Prison gerrymandering has become especially pervasive across southern states while many of the South’s northern counterparts have eradicated this practice through legislative reform. This Comment proposes a solution to stop prison gerrymandering in the South, arguing a strategy to produce a …
Freezing Innovation: How The Platform Competition And Opportunity Act Will Freeze Funds In The Tech Start-Up Market, Brandon Wong
Freezing Innovation: How The Platform Competition And Opportunity Act Will Freeze Funds In The Tech Start-Up Market, Brandon Wong
Pepperdine Law Review
The rise of technological giants like Amazon, Apple, Google, and Facebook motivated the House Judiciary Committee to pass a slew of new antitrust legislation bills to curb these companies’ considerable market power. The Platform Competition and Opportunity Act proposes to significantly cut a dominant online platform’s ability to continue growing by deeming certain acquisitions presumptively unlawful. The Act shifts the burden to the acquiring company to prove the proposed transaction would not be anticompetitive by eliminating a potential competitor. In an effort to protect competition, the Act has good intentions to protect start-up companies that are fearful of being acquired …
Legislating Childhood Independence, David Pimentel
Legislating Childhood Independence, David Pimentel
Pepperdine Law Review
The legal system has been drawn into the ongoing debate about what constitutes responsible parenting in a world increasingly obsessed with child safety. While statistics show that children are dramatically safer today than ever before, media and popular paranoia about child safety are prompting parents to err on the side of overprotection. Vague statutes exacerbate the problem, enabling law enforcement and child protection authorities to condemn parental choices that fail to adhere to the new hyper-protective orthodoxy. Parents and children are both victimized by this trend. The costs and burdens of parenting have skyrocketed, and children are denied the opportunity …
Adoption Ouroboros: Repeating The Cycle Of Adoption As Rescue, Malinda L. Seymore
Adoption Ouroboros: Repeating The Cycle Of Adoption As Rescue, Malinda L. Seymore
Pepperdine Law Review
Ouroboros—the circular symbol of the snake eating its tail; an endless cycle. As the U.S. recently withdrew from Afghanistan in chaos and Russia invaded Ukraine, the attention of Americans turned, as it frequently has in times of international conflict, to the plight of children in need of rescue. For many Americans, rescue is synonymous with adoption. The history of international adoption began with rescues following America’s wars in Europe and Asia and continues today through other violent upheavals. International adoption is an ouroboros, repeating the pattern of adoption as a response to humanitarian crises. But as human and charitable as …
A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis
A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis
Pepperdine Law Review
The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms—no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution. In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …
Liability For Deadly Failure: Rejecting The Push For Prep Act Preemption And Restraining Prep Act Immunity For Senior Living Facilities And Nursing Homes, Mai R. Contino
Pepperdine Law Review
In the wake of COVID-19, there has been a surge of wrongful death cases filed by plaintiff families in state courts. These families allege that their loved one contracted and died from COVID-19 because the nursing home or senior living facility at which their loved one resided failed to take proper COVID-19 prevention measures. In response, defendant facilities have removed these actions to federal court, arguing that the PREP Act preempts plaintiffs’ state law claims and grants facilities immunity from liability for loss related to qualified actions taken during a public health emergency. This Comment rejects facilities’ push for preemption …
Table Of Contents And Masthead, Maribeth Beyer
Table Of Contents And Masthead, Maribeth Beyer
Pepperdine Law Review
No abstract provided.
Typing A Terrorist Attack: Using Tools From The War On Terror To Fight The War On Ransomware, Jake C. Porath
Typing A Terrorist Attack: Using Tools From The War On Terror To Fight The War On Ransomware, Jake C. Porath
Pepperdine Law Review
The United States faces a grave challenge in its fight against cyberattacks from abroad. Chief among the foreign cyber threats comes from a finite number of “ransomware-as-a-service” gangs, which are responsible for extorting billions of dollars from American citizens and companies annually. Prosecuting these cybercriminals has proven exceedingly difficult. Law enforcement often struggles to forensically trace ransomware attacks, which makes identifying and prosecuting the perpetrators challenging. Moreover, even when prosecutors can identify the perpetrators of these attacks, the ransomware gangs are headquartered in foreign adversarial nations that do not extradite criminals to the United States. Finally, ransomware gangs are governed …
Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks
Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks
Pepperdine Law Review
Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world’s largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland’s biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan’s Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Pepperdine Law Review
Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …
The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis
The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis
Pepperdine Law Review
In the post-Roe world, can a state rationally claim that the value of human life justifies the imposition of abortion bans but does not demand that a state protect the vulnerable young who are “born human beings”—commonly called “minors” or “children”—and are entitled to protection under a state’s laws? This essay advances the claim that it cannot. This essay asks that those who say they are “Pro-life” in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and that they do so in the most minimal fashion: through a demonstrated commitment to protecting the basic welfare …
Defining “Different”–How Distinctive Methods Of Textual Interpretation Led To The Abduction Enhancement Circuit Split, Adam Manaa
Pepperdine Law Review
This note examines the federal circuit courts’ differing approaches to interpreting the robbery abduction enhancement in the United States Sentencing Guidelines. Specifically, this note sets forth how the Sixth Circuit’s strict method of textual interpretation in United States v. Hill led to the erroneous holding that the term “different location” refers to “a place different from the store that is being robbed.” This note argues the court should have taken a more holistic interpretative approach, taking the underlying purpose of the Guidelines into account.
Are Cryptopunks Copyrightable?, Brian L. Frye
Are Cryptopunks Copyrightable?, Brian L. Frye
Pepperdine Law Review
Larva Labs’ CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars. The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …
Table Of Contents & Masthead, Anne Mccarthy
Table Of Contents & Masthead, Anne Mccarthy
Pepperdine Law Review
No abstract provided.
Hair On Fire: Why Companies Are Less Likely To Feel The Burn Under The Doj’S Newest Change To Antitrust Enforcement, Caroline M. Whitener
Hair On Fire: Why Companies Are Less Likely To Feel The Burn Under The Doj’S Newest Change To Antitrust Enforcement, Caroline M. Whitener
Pepperdine Law Review
In July 2019, the Department of Justice (DOJ) Antitrust Division announced that in an effort to help companies avoid “‘hair on fire’ experiences,” Division prosecutors are now, despite previous hesitancy, encouraged to offer prosecution alternatives in the form of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to corporate antitrust violators. Alternative prosecution agreements, such as DPAs and NPAs, are contracts between the government and corporate wrongdoers that allow companies to delay or entirely avoid prosecution, provided the company adheres to the contract terms. Additionally, as a part of the policy change, DOJ antitrust prosecutors must evaluate a corporation’s preexisting …
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Pepperdine Law Review
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …
Presumptively Awful: How The Federal Government Is Failing To Protect The Constitutional Rights Of Those Adjudicated As Mentally Ill, As Illustrated By The 18 U.S.C. § 922(G)(4) Circuit Split, Kaitlyn M. Rubcich
Pepperdine Law Review
The Third, Sixth, and Ninth Circuits are split as to whether the 18 U.S.C. § 922(g)(4) federal firearms ban violates the Second Amendment rights of those who were once adjudicated as mentally ill but have since returned to good mental health. In Beers v. Attorney General, the Third Circuit applied its own unique framework and held that § 922(g)(4) is constitutional. Meanwhile, the Sixth Circuit applied intermediate scrutiny in Tyler v. Hillsdale County Sheriff’s Department and deemed the statute unconstitutional, while in Mai v. United States, the Ninth Circuit also applied intermediate scrutiny but held that § 922(g)(4) is constitutional. …
Fighting Words Today, R. George Wright
Fighting Words Today, R. George Wright
Pepperdine Law Review
For some time, the familiar free speech exception known as the “fighting words” doctrine has been subject to severe judicial and scholarly critique. It turns out, though, that the fighting words doctrine, in general, is neither obsolete nor in need of radical limitation. The traditionally neglected “inflict injury” prong of the fighting words doctrine can and should be vitalized, with only a minimal loss, if not an actual net gain, in promoting the basic purposes of freedom of speech in the first place. And the “reactive violence” prong can and should be relieved of its historic biases and dubious assumptions. …
The Paga Saga, Tamar Meshel
The Paga Saga, Tamar Meshel
Pepperdine Law Review
Employees routinely enter into employment contracts that contain arbitration agreements and prohibit them from bringing class and/or representative actions. These employees may therefore only bring claims against their employers, whether contractual or statutory, in arbitration on an individual basis. Such arbitration agreements and the class/representative action waivers that they contain are enforced nationwide pursuant to the Federal Arbitration Act (FAA). In California, however, a judge-made rule (the Iskanian rule) prohibits the enforcement of representative action waivers found in arbitration agreements with respect to employees’ claims of Labor Code violations under California’s Private Attorney General Act (PAGA). A judicial battle is …
Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris
Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris
Pepperdine Law Review
The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets. This Essay examines the surprisingly under-explored relationship between misdemeanor cash bail & pretrial detention and the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment, using the Supreme …