Law Commons^™

Surveying The Safety Culture Of Academic Laboratories, Emily Faulconer, Zachary Dixon, John C. Griffith, Hayden Frank

Publications

The university traditionally has been the foundation for young adults’ professional development, yet the proclivity toward safety culture has garnered less focus in higher education than in the workforce. A survey of faculty at a medium-sized, research-active, private institution revealed specific areas of policy noncompliance as well as specific safety attitudes that can be targeted for interventions. Albeit a snapshot view, the survey implies that safety needs better representation in the classroom, teaching laboratories, and research facilities at universities. Safety is not abandoned by any means, and there is a strong presence of safety-oriented individuals, but the data show barriers …

I Call Rigamarole (Or Taradiddle) On 'Originalist' Justices, Rachel A. Van Cleave

Publications

Last week, while Supreme Court nominee Amy Coney Barrett was holding forth about how she applies originalism, invoking her mentor and former boss Justice Antonin Scalia, current Supreme Court justices were undermining an originalist opinion authored by Scalia. Nominee Barrett explained originalism: “I understand [the Constitution] to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”

Oral arguments in Torres v. Madrid make clear that, for some justices, originalism is appropriate, except when …

The 2020 Supreme Court Term In The Shadow Of Blm, Metoo, And The Notorious Rbg, Rachel A. Van Cleave

Publications

The upcoming Supreme Court term comes in the context of widespread protests about police violence, the criminal (in)justice system, continuing fallout from the #MeToo movement, and the death of iconic Supreme Court Justice Ruth Bader Ginsburg. The court has agreed to hear cases that involve the enduring white supremist legacy of a Louisiana law that allowed for non-unanimous jury criminal convictions, standards for evaluating excessive use of force by police, what is required to sentence a juvenile to life without parole, and military sexual violence.

It is imperative that the Court acknowledge the difficult truths that Black Lives Matter protesters, …

The Pharmaceutical Industry’S Corrupt Price Discrimination System: A Single Solution?, Samuel F. Ernst

Publications

The patent exhaustion doctrine generally provides that when a patent holder sells or authorizes the sale of a patented product, the patent rights in that item are exhausted. The patent holder cannot chase the item down the stream of commerce to impose restrictions on its use or resale. One issue that arises is whether a domestic sale is required to trigger patent exhaustion, or if sales overseas can also trigger patent exhaustion. The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) is agnostic on this question, providing that “nothing in this Agreement shall be used to address the issue …

The Bar Exam Taught Me Something! Or How Bar Prep Advice Helps Me Manage Life In Lockdown, Heather Varanini

Publications

There’s a refrain from most law school graduates: law school taught me nothing about the practice of law and the bar exam didn’t test any of the skills that will make me a good lawyer. But what about the other things you learned in the process?

California Should Lead The Nation In Controlling Agricultural Pollution, Helen H. Kang, Deborah Sivas

Publications

Agricultural runoff is one of the largest sources of pollution in the nation’s waterways. In recent years, scientific journals and the media have been filled with reports of toxic algae blooms and dead zones near and far: The Everglades, Great Lakes, Gulf of Mexico, Chesapeake Bay, and San Francisco Bay-Delta. Agricultural pollution also threatens public health in communities that rely on tainted groundwater. In California alone, more than a quarter million residents in largely agricultural areas are served by water systems with degraded groundwater quality.

#Metoo And The Pursuit Of Women's International Human Rights, Benedetta Faedi Duramy

Publications

IN THE PAST YEAR, high profile cases and the ensuing #MeToo movement have raised much attention on issues surrounding gender discrimination, violence against women, and sexual harassment in the workplace. In the United States, allegations of sexual assault and harassment spawned the deposition or resignation of prominent figures in the entertainment, media, dining, and business industries following the onset of the #MeToo social media movement.' In the rest of the world, many people also embraced the online crusade by sharing the hashtag millions of times or creating their own versions of it. Feminists and scholars have since attempted to keep …

Ethical Considerations Of Blockchain: Do We Need A Blockchain Code Of Conduct?, Michele Benedetto Neitz

Publications

As states begin to adopt regulations governing cryptocurrencies and other uses of blockchain technology, it is becoming clear that the libertarian ideal of blockchain was just that – an ideal. There are already examples in which human decision-making has counteracted the immutability of some blockchains. In short, there appears to be a movement toward centralization within this decentralized technology.

Blockchains And The Ethical Considerations Of Centralization, Michele Benedetto Neitz

Publications

Blockchain technology’s promise is extraordinary—a truly decentralized and immutable ledger that could impact everything from cryptocurrencies and health care to supply chain management and civic voting. But a close examination of both permissioned and permissionless blockchains reveals that blockchain technology is actually moving in the direction of centralization, with small groups of people influencing decisions that affect entire blockchains. This emerging reality has profound ethical ramifications for the governance of blockchains.

Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth

Publications

No abstract provided.

The Troubling Alliance Between Feminism And Policing, Aya Gruber

Publications

No abstract provided.

Medical Civil Rights As A Site Of Activism: A Reply To Critics, Craig Konnoth

Publications

See Craig Konnoth, Medicalization and the New Civil Rights, 72 Stan. L. Rev. 1165 (2020).

See also Rabia Belt & Doron Dorfman, Response, Reweighing Medical Civil Rights, 72 Stan. L. Rev. Online 176 (2020), https://www.stanfordlawreview.org/online/reweighing-medical-civil-rights/; Allison K. Hoffman, Response, How Medicalization of Civil Rights Could Disappoint, 72 Stan. L. Rev. Online 165 (2020), https://www.stanfordlawreview.org/online/how-medicalization-of-civil-rights-could-disappoint/.

Salmon Lessons For The Delta Smelt: Unjustified Reliance On Hatcheries In The Usfws October 2019 Biological Opinion, Paul Stanton Kibel

Publications

Pursuant to the Endangered Species Act, in October 2019 the United States Fish and Wildlife Service (USFWS) of the Trump Administration issued a new Biological Opinion (BiOp) for coordinated operations of the Central Valley Project and the State Water Project (2019 USFWS BiOp).

The Central Valley Project is operated by the United States Bureau of Reclamation (Reclamation), and the State Water Project is operated by the California Department of Water Resources. The Central Valley Project and the State Water Project both divert freshwater from the Sacramento River and San Joaquin River watersheds, and the reduced freshwater flow resulting from these …

Of Hatcheries And Habitat: Old And New Conservation Assumptions In The Pacific Salmon Treaty, Paul Stanton Kibel

Publications

The 1985 Pacific Salmon Treaty between Canada and the United States was negotiated to deal with evidence that Pacific salmon stocks originating in Canada and the United States were in decline. The Pacific Salmon Treaty sought to establish total annual fishing limits for Canada and the United States that were consistent with the sustainable conservation of Pacific salmon stocks, and to base the total allowable catch for Canadian fishermen on forecasts of the total abundance of salmon. As the Pacific Salmon Treaty has been implemented, however, there has been a re-occuring pattern of annual abundance forecasts overestimating the actual abundance …

Fisheries Reliant On Aquifers: When Groundwater Extraction Depletes Surface Water Flows, Paul Stanton Kibel, Julie Gantenbein

Publications

IN CALIFORNIA, surface waters have historically been regulated as if they were unconnected to groundwater. Yet in reality, surface waters and groundwater are often hydrologically connected. Many of the rivers that support fisheries such as salmon and trout are hydrologically dependent on tributary groundwater to maintain instream flow. This means that when there is intensive pumping of tributary groundwater, the result can be reductions in instream flow and damage to fisheries. For this reason, stakeholders concerned with adequate instream flows for fisheries in California's rivers, streams, and creeks need to be effectively engaged in the implementation of California's Sustainable Groundwater …

It's Been A Long Time Coming: A Short Manifesto For Urgently Needed Change In Land Use Law & Regulation, Colin Crawford

Publications

Pandemic illnesses from Ebola and HIV to COVID-19, the hastening consequences for land and the environment of climate change, and global protests over racial and social inequity in the wake of brutal police killings in the United States, all demand that we re-examine and rethink some land use basics. Therefore, in what follows, I will briefly highlight five areas of land use orthodoxy that I suggest the current historical moment demands we revisit. I will, furthermore, try to do so in the spirit of Julian Juergensmeyer and his work, pushing and questioning, seeking for new alternatives.

My five-part list for …

Access To Justice For Collective And Diffuse Rights: Theoretical Challenges And Opportunities For Social Contract Theory, Colin Crawford

Publications

This analysis consists of three principal parts. First, it briefly reviews the classical contract account that explains how and why individuals enter civil society, found in the writings of both Hobbes and Locke. The analysis then examines the limited extent to which classical contract theory treats questions of rights vindication or, in more modern terms, with questions of access to justice. Second, the analysis examines the nature of collective and diffuse rights claims and will make a case for their importance in the modern world. Third, the analysis seeks to identify arguments from the classical account that might be useful …

Access To Justice: Theory And Practice From A Comparative Perspective, Colin Crawford, Daniel Bonilla Maldonado

Publications

The papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend …

The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson

Publications

Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two …

While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss

Publications

This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in …

Iran, Diane M. Zorri

Publications

Internet access in Iran is characterized by strong censorship, limited access, surveillance, and widespread state-sanctioned propaganda. The regime in Tehran views internet freedom as a critical threat to its national security (Henry, Pettyjohn, and York 2014). Using an index of variables such as obstacles to access, limits on content, and violations of user rights, the nongovernmental organization Freedom House rates Iran’s internet access as “not free” (Freedom House 2018). On a scale of zero to one hundred, where zero is “free” and one hundred is “not free,” Freedom House scores Iran at an eighty-five, making it the least free nation …

Race, Space, And Surveillance: A Response To #Livingwhileblack: Blackness As Nuisance, Lolita Buckner Inniss

Publications

This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Monetizing Infringement, Kristelia García

Publications

The deterrence of copyright infringement and the evils of piracy have long been an axiomatic focus of both legislators and scholars. The conventional view is that infringement must be curbed and/or punished in order for copyright to fulfill its purported goals of incentivizing creation and ensuring access to works. This Essay proves this view false by demonstrating that some rightsholders don’t merely tolerate, but actually encourage infringement, both explicitly and implicitly, in a variety of different situations and for one common reason: they benefit from it. Rightsholders’ ability to monetize infringement destabilizes long-held but problematic assumptions about both rightsholder preferences, …

Taming America's Sugar Rush: A Traffic-Light Label Approach, Alexia Brunet Marks

Publications

Excess added sugar negatively impacts health and can lead to a litany of problems, such as diet-related chronic diseases, e.g., diabetes, cancer, heart disease, and obesity, costing Americans millions in rising medical bills each year. Even more, new studies reveal that individuals with these underlying chronic diseases are at a higher risk of complications from COVID-19 and other viruses compared to those who are deemed healthy. And yet added sugars are difficult to avoid because unlike naturally occurring sugars found in fruits, vegetables, and milk, these sweeteners are added during food processing and preparation.

The problem is that while consumers …

Unsafe At Any Campus: Don't Let Colleges Become The Next Cruise Ships, Nursing Homes, And Food Processing Plants, Peter H. Huang, Debra S. Austin

Publications

The decision to educate our students via in-person or online learning environments while COVID-19 is unrestrained is a false choice, when the clear path to achieve our chief objective safely, the education of our students, can be done online. Our decision-making should be guided by the overriding principle that people matter more than money. We recognize that lost tuition revenue if students delay or defer education is an institutional concern, but we posit that many students and parents would prefer a safer online alternative to riskier in-person options, especially as we get closer to fall, and American death tolls rise. …

Super-Statutory Contracting, Kristelia García

Publications

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes

Publications

This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

De-Democratizing Criminal Law, Benjamin Levin

Publications

No abstract provided.

Administrative Law's Extraordinary Cases, Jonathan Skinner-Thompson

Publications

The Supreme Court's major questions doctrine is grounded in the Chevron framework. Reconstituting it as a "major rules" exception to Chevron or as a non-delegation principle are misguided and create greater uncertainty.