Law Commons^™

Selective Ban Of Street Signs Metro Lights, Llc V City Of Los Angeles (9th Cir 2009), Roger Bernhardt

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This article discusses a Ninth Circuit case involving commercial speech and asks whether selective protection can be challenged under the Fifth Amendment.

The Last Bar Examination (2009), Roger Bernhardt

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This article criticizes the 2009 California Bar Exam Property question for its irrelevance to modern practice.

Title Insurance And Fraudulent Loans: First Am. Title Ins. Co. V Xwarehouse Lending, 2009, Roger Bernhardt

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Victim of fraudulently made loans not protected by title insurance issued to purported originating lender.

Unavoidable Difficulties In Drafting Easements, Roger Bernhardt

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This article discusses the use of the words “exclusive” in easements through, with advice to transactionalists as to prudent drafting and to litigators as to arguments to make for dominant and servient estate holders.

What Have Women Got To Do With Peace?: A Gender Analysis Of The Laws Of War And Peacemaking, Benedetta Faedi Duramy

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This article proposes an engaged analysis of the impact that armed conflicts have on women and the diverse roles that women might conceivably play in peacemaking. Recalling the original theories of international law, the article recounts how historical chronicles and modern Western authors have depicted women in wartime. Primarily portrayed as victims of brutalization and sexual violence, women have been confined to the private realm and, thus, excluded from the decision-making processes of war and peace. This research argues that the same exclusion has been reflected in the international law instruments that have reinforced the paradigm of women as mainstays …

Learning From Bogota: An Introduction To The Study Space Articles, Colin Crawford

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STUDY SPACE SYMPOSIUM ARTICLES: Learning from Bogota: An Introduction to the Study Space Articles.

The Study Space project of which this volume is the second iteration strives to create a forum to focus on the positive and negative effects of human activity as it changes physical and built environments-in the broadest sense of the term "environment," or what the Study. Space subtitle characterizes as the "human habits and habitats in, the 21st century." This volume endeavors to provide some such explorations and reflections for Bogota.

Our Bandit Future - Cities, Shantytowns, And Climate Change Governance, Colin Crawford

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This Article seeks, to begin to define a role for cities and their inhabitants in climate change governance. Part I argues that if we fail to take into account global urbanization and its defining characteristics, namely extreme squalor and associated social ills, as a central feature of climate change policy, we face, as a Rio de Janeiro taxi driver said to me during the hot, dry, violent winter of 2006 in that city, 13 "urn futuro bandido," literally "a bandit future." That is, we face a future where cities, the places where most of the world's population lives, will experience …

Response To Professor Mcallister's Reply To My Review Of Making Law Matter, Colin Crawford

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No abstract provided.

Defending Public Prosecutors And Defining Brazil's Environmental Public Interest: A Review Of Lesley Mcallister's Making Law Matter: Environmental Protection And Legal Institutions In Brazil, Colin Crawford

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No abstract provided.

Ritual, Emotion, And Political Belief: The Search For The Constitutional Limit To Patriotic Education In Public Schools, Brent T. White

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No abstract provided.

The Road To Reason: Arizona V. Gant And The Search Incident To Arrest Doctrine, Myron Moskovitz

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No abstract provided.

What Is A "Law And Society" Approach To Intellectual Property?, William T. Gallagher

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No abstract provided.

The New Race: Speeding Up Climate Change Innovation, Deborah N. Behles

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This article will initially summarize the current climate change regulatory environment and the need for innovation. It will then discuss why current intellectual property policies fail to encourage innovation to the extent needed. Finally, this article will examine various proposals for improving our intellectual property system in the area of climate change and recommend initial steps the U.S. could take to encourage the development and disclosure of climate change innovations by balancing economic incentives for innovation with the need to quickly reduce greenhouse gas emissions.

Rape, Blue Jeans, And Judicial Developments In Italy, Benedetta Faedi Duramy

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On June 10, 2008, the Supreme Court of Italy (Corte di Cassazione) affirmed a decision made by the Court of Appeal of Venezia condemning a defendant to one year of imprisonment for having repeatedly sexually assaulted a sixteen-year-old girl. The appellant, who was in a relationship with the mother of the victim and cohabited with them at the time of the aggression, argued that the girl had slanderously misrepresented the facts. Particularly, the defendant claimed that since the plaintiff was wearing a pair of tight blue jeans at the time of the alleged episode of sexual violence, it is not …

Karen Lee Hawkins: Untaxed Creativity, Rachel A. Van Cleave

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No abstract provided.

Joan Blades: Fortune Cookie, Alan Ramo

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No abstract provided.

"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks

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This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

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This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

A 'Ho New World: Raced And Gendered Insult As Ersatz Carnival And The Corruption Of Freedom Of Expression Norms, Lolita Buckner Inniss

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Carnivalization, a concept developed by literary theorist Mikhail Bakhtin and later employed in broad social and cultural contexts, is the tearing down of social norms, the elimination of boundaries, and the inversion of established hierarchies. It is the world turned upside down. Ersatz carnival is a pernicious, inverted form of carnival, one wherein counter-discourses propounded by outsiders are appropriated by elites and frequently redeployed to silence and exclude those same outsiders. The use of the slur "'ho" by gangsta' rappers in the performance of songs that articulate a vision of urban culture is an example of carnivalization. Thus, when words …

House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson

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In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …

In Defense Of Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

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This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly …

The Courts Under President Obama, Scott A. Moss

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No abstract provided.

If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss

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No abstract provided.

The Subprime Crisis And The Link Between Consumer Financial Protection And Systemic Risk, Erik F. Gerding

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This Article will appear in a May 2009 symposium issue of the Florida International University Law Review on the global financial crisis. This Article argues that the current global financial crisis, which was first called the “subprime crisis,” demonstrates the need to revisit the division between financial regulations designed to protect consumers from excessively risky loans and safety-and-soundness regulations intended to protect financial markets from the collapse of financial institutions. Consumer financial protection can, and must, serve a role not only in protecting individuals from excessive risk, but also in protecting markets from systemic risk. Economic studies indicate it is …

Jurisdiction's Noble Lie, Frederic M. Bloom

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This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood--and then explains why it would.

To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction's foundations--its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid …

Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag

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In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every …

Regulating Interoperability: Lessons From At&T, Microsoft, And Beyond, Philip J. Weiser

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Antitrust law confronted the challenges of regulating interoperability between platforms and applications in both the AT&T and Microsoft cases, but it has yet to mine the series of lessons that can inform how to address this challenge going forward. With the Microsoft consent decree still in place, it may too soon to render a final judgment on the remedy adopted in that case as well as to evaluate more generally whether antitrust law is up to the task of developing the institutional strategies - be it the use of technical committees or reliance on standard setting bodies - for addressing …

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

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Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss

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No abstract provided.

Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss

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Cases are won and lost in discovery, yet discovery draws little academic attention. Most scholarship focuses on how much discovery to allow, not on how courts decide discovery disputes--which, unlike trials, occur in most cases. The growth of computer data--e-mails, lingering deleted files, and so forth--increased discovery cost, but the new e-discovery rules just reiterate existing cost-benefit proportionality limits that draw broad consensus among litigation scholars and economists. But proportionality rules are impossible to apply effectively; they fail to curb discovery excess yet disallow discovery that meritorious cases need. This Article notes proportionality's flaws but rejects the consensus blaming bad …