Law Commons^™

Exempting High-Level Employees And Small Employers From Legislation Invalidating Predispute Employment Arbitration Agreements, E. Gary Spitko

Faculty Publications

On February 12, 2009, lawmakers in the U.S.House of Representatives introduced the "Arbitration Fairness Act of 2009. " This bill, if enacted, will invalidate any predispute arbitration agreement between an employer and its employee. Last year, the 110th Congress considered the narrower "Preservation of Civil Rights Protections Act of 2008, " which would have invalidated such predispute arbitration agreements if they required "arbitration of a dispute arising under" federal civil rights laws. This Article explores how best to structure any such invalidation of predispute employment arbitration agreements, both in light of the rationales for and against regulation of the employment …

Leadership Skills Development Is Lawyer Skills Development, Sandee Magliozzi, Michele L. Bendekovic

Faculty Publications

No abstract provided.

Consumer Interest In Corporate Law, David Yosifon

Faculty Publications

This Article provides a comprehensive assessment of the consumer interest in dominant theories of the corporation and in the fundamental doctrines of corporate law. In so doing, the Article fills a void in contemporary corporate law scholarship, which has failed to give sustained attention to consumers in favor of exploring the interests of other corporate stakeholders, especially shareholders, creditors, and workers. Utilizing insights derived from the law and behavioralism movement, this Article examines, in particular, the limitations of the shareholder primacy norm at the heart of prevailing "nexus of contracts" and "team production" theories of the firm. The Article concludes …

Teaching Torture, Beth Van Schaack, Ron Slye

Faculty Publications

This chapter, to appear in the 2nd edition of Beth Van Schaack & Ron Slye's International Criminal Law & Its Enforcement (Foundation Press 2010), covers the crime of torture under international criminal law. It begins with a doctrinal discussion of the elements of torture as elucidated in the international criminal law jurisprudence with a focus on cases concerning gender-based violence and sex crimes. It then enables a comparison of this established doctrine with the "torture memos" produced during the administration of President Bush. Using a rich set of Notes, Questions and Problems, the chapter offers a compelling tool for teaching …

Eva And Her Baby (A Story Of Adolescent Sex, Pregnancy, Longing, Love, Loneliness, And Death), Michelle Oberman

Faculty Publications

I want to tell you the story of how I've come to see a woman I call Eva. It's more than just Eva's story, which is interesting in itself; it's also my story, puny like a pinky.

The story starts on a frigid February morning in 1992, when my friend Jack, a criminal defense lawyer with a solo-practice in downtown Chicago, called to talk with me about his sixteen-year-old client, Eva, who had hidden her pregnancy from her family and then given birth in a toilet. Her case was going to trial. He had never heard a story like hers. …

The Constitutional Right To A Treaty Preemption Defense, David Sloss

Faculty Publications

The Constitution includes several provisions specifically designed to protect criminal defendants. For example, the Fourth Amendment prohibits "unreasonable searches and seizures," the Sixth Amendment guarantees that criminal defendants have a right to legal representation, and the Eighth Amendment prohibits cruel and unusual punishments. The Constitution' s Founders recognized that state power is at its apex when the state threatens individuals with criminal sanctions. Accordingly, they adopted special constitutional rules to protect "the individual defendant from the awesome power of the State."

The Due Process Clause provides critical protection for criminal defendants; it stipulates that no State shall "deprive any person …

Heinous, Atrocious, And Cruel: Apprendi, Indeterminate Sentencing, And The Meaning Of Punishment, W. David Ball

Faculty Publications

Under Apprendi v. New Jersey, any fact that increases an offender's maximum punishment must be found by a jury beyond a reasonable doubt. The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences-that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.

In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In …

How Will You Thrive In An Uncertain Economy?, Sandee Magliozzi, Susan P. Beneville

Faculty Publications

No abstract provided.

Unmarried Couples And The Mortgage Interest Deduction, Patricia A. Cain

Faculty Publications

On March 13, 2009, the Internal Revenue Service released Chief Counsel Advisory 200911007, concluding that unmarried co-owners of a residence were limited to mortgage interest deductions on $1 million of acquisition indebtedness. CCA 200911007 reasons that the $1 million limit should be applied per residence rather than per taxpayer. This article criticizes the IRS position.

Using Salience And Influence To Narrow The Tax Gap, Susan Morse

Faculty Publications

This Article contains five parts. Part I describes the details and limitations of several existing tax-gap-closing approaches relevant to self-employed and small business taxpayers: third-party reporting, audit, whistleblower rewards, and gatekeeper strategies. Part II outlines the concepts of salience and influence and places them in the context of proposals to address or close the tax gap. Part III considers how salience and the influence principle of social proof could improve government messages to taxpayers about taxpaying obligations and audit risks, and to tax preparers about diligence requirements. Part IV outlines strategies based on the influence principles of reciprocity and commitment …

Atrocity Crimes Litigation: 2008 Year-In-Review, Beth Van Schaack

Faculty Publications

This survey of 2008's top developments in these international fora will focus on the law governing international crimes and applicable forms of responsibility. Several trends in the law are immediately apparent. The tribunals continue to delineate and clarify the interfaces between the various international crimes, particularly war crimes and crimes against humanity, which may be committed simultaneously or in parallel with each other. Several important cases went to judgment in 2008 that address war crimes drawn from the Hague tradition of international humanitarian law, and the international courts are demonstrating a greater facility for adjudicating highly technical aspects of this …

Use Coaching To Develop Your Lawyers’ Skills And Expand Your Firm’S Potential, Sandee Magliozzi, Susan P. Beneville

Faculty Publications

No abstract provided.

Of Trolls, Davids, Goliaths, And Kings: Narratives And Evidence In The Litigation Of High-Tech Patents, Colleen V. Chien

Faculty Publications

While each patent dispute is unique, most fit the profile of one of a limited number of patent litigation stories. A dispute between an independent inventor and a large company, for instance, is often cast in "David v. Goliath" terms. When two large companies fight over patents, in contrast, they are said to be playing the "sport of kings." Some corporations engage in "defensive patenting" in order to deter others from suing them. Patent licensing and enforcement entities who sue have been labeled "trolls." Finally, observers of the patent system call the use of patent litigation to impose or exploit …

Brand Spillovers, Eric Goldman

Faculty Publications

This Article considers the spillover effects of trademarks - in particular, brand spillovers, which occur when consumer interest in a trademark increases the profits of third parties who do not own the trademark. Using techniques such as loss leaders and shelf space adjacency, retailers routinely create brand spillovers for their profit, and trademark law generally has not restricted these activities. Online intermediaries, such as search engines, also create and profit from brand spillovers by selling manufacturers' trademarks for advertising purposes (keyword triggering). However, in contrast to retailer practices, keyword triggering has sparked a heated and irresolute battle over its legitimacy …

Contextualizing Varnum V. Brien: A "Moment" In History, Patricia A. Cain

Faculty Publications

Varnum v. Brien is the last case in a line of state constitutional law challenges in what has been a a fifteen-year campaign by LGBT public interest lawyers seeking legal recognition for same-sex couples. While the litigation may be over for now, the larger battle is just beginning. The Iowa Supreme Court’s ruling in Varnum will play a central role in this future battle. It stands as part of a major “moment” in the modern history of recognizing equal marriage rights for same-sex couples. This article describes the historical context in which Varnum was litigated and identifies three important “moments” …

The Misuse Of Reasonable Royalty Damages As A Patent Infringement Deterrent, Brian J. Love

Faculty Publications

This Article studies the Federal Circuit's use of excessive reasonable royalty awards as a patent infringement deterrent. I argue against this practice, explaining that, properly viewed in context of the patent system as a whole, distorting the reasonable royalty measure of damages is an unnecessary and ineffective means of ensuring an optimal level of reward for inventors and deterrence for infringers. First, I introduce cases in which the Federal Circuit and other courts following its lead have awarded punitive reasonable royalty awards and explain the Federal Circuit's professed rationale for doing so. Next, I demonstrate that this practice makes little …

Disclosure, Deception, And Deep-Packet Inspection: The Role Of The Federal Trade Commission Act's Deceptive Conduct Prohibitions In The Net Neutrality Debate, Catherine J. K. Sandoval

Faculty Publications

No abstract provided.

The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival

Faculty Publications

No abstract provided.

Doma And The Internal Revenue Code, Patricia A. Cain

Faculty Publications

The purpose of this article is to make the argument that I think needs to be made: DOMA, as applied to the Internal Revenue Code as a whole, is unconstitutional because it lacks a rational basis.

Let me explain, up front, that my constitutional argument about § 3 has nothing to do with whether Congress has the power to enact such legislation. Congress, after all, does have the power to levy taxes and control our borders. Thus, Congress should have the power to determine which married couples can file a joint return and which non-citizen spouses can be given preferential …

Pregnancy Discrimination And Social Change: Evolving Consciousness About A Worker's Right To Job-Protected, Paid Leave, Patricia Shiu, Stephanie Wildman

Faculty Publications

This Article examines the change over the past few decades in U.S. law and societal attitudes concerning a worker's right to job-protected, paid leave. Though common around the world, job-protected, paid leave eludes the U.S. workforce. The authors begin by considering the concept of work, its relation to identity, and the construction of safety nets for workers when they need income replacement. The Article considers the movement to establish job-protected, paid leave that encompasses and values a worker's work, family, and personal life.

The modern movement originated with pregnant workers' need for time away from work during pregnancy. Women who …

Business, The Roberts Court, And The Solicitor General: Why The Supreme Court's Recent Business Decisions May Not Reveal Very Much, Sri Srinivasan, Bradley W. Joondeph

Faculty Publications

This essay presents an empirical examination of the full universe of the Roberts Court’s decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. Moreover, when those two positions diverged-most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs-the Roberts Court overwhelmingly sided with the government.

While these findings are interesting, our …

Copyright Law: The Last Five Years Of Journal Coverage, Tyler T. Ochoa

Faculty Publications

Five years ago, I was asked to write an essay to celebrate the 20th anniversary of the Santa Clara Computer and High Technology Law Journal. In that essay, I surveyed the major developments in copyright law during the previous twenty years and documented how those developments had been chronicled (or foreshadowed) in the Journal. Today, as the Journal publishes the first issue of its 25th volume, I take this opportunity to look back at the Journal's coverage of copyright law during the past five years.

Sanctuary Policies & Immigration Federalism: A Dialectic Analysis, Pratheepan Gulasekaram, Rose Villazor

Faculty Publications

This Article explores the doctrinal and theoretical challenges confronting San Francisco's non-cooperation ordinance, and similar subfederal actions. It does so using a non-conventional but useful method of engaging in a dialectic exchange. In using the dialectic structure, we take our cue from Professor Stephen Legomsky's elegant use of the device in his recent article on the meaning of undocumented status. As he noted, the format has been "under-utilized" in legal scholarly literature. More scholars should use this method, he contended, because it helps to reveal the diametrically opposed positions of various groups concerning aparticular issue. Importantly, a dialectic conversation facilitates …

Cash Businesses And Tax Evasion, Susan Morse, Stewart Karlinsky, Joseph Bankman

Faculty Publications

This Article attempts to provide a qualitative picture of tax evasion in the small business sector. It provides details from almost 275 field study interviews with cash business owners and with tax preparers and bankers who serve cash business clients. Our research suggests answers to the questions of who evades taxes, what taxes they evade, and why and how they evade taxes. This Article proceeds in three additional parts. Part II summarizes the main threads of relevant social science research on small business tax compliance. Part III describes the methodology and results of this interview study. Part IV concludes.

Obstacles On The Road To Gender Justice: The International Criminal Tribunal For Rwanda As Object Lesson, Beth Van Schaack

Faculty Publications

Although the substantive law concerned with gender violence is now well established, and the principle of legality can no longer serve as a barrier to prosecutions for gender violence, significant obstacles remain to ensuring a robust system of gender justice in international criminal law in the face of continued violations. These obstacles are less visible than defects in positive law because they emerge in the practice of international criminal law at crucial yet shrouded stages of the penal process: investigation, charging, pre-trial plea negotiations, trial preparation, theprovision of protective measures, and appeals. Most importantly, strong positive law is irrelevant where …

Death Penalty Appeals And Habeas Proceedings: The California Experience, Gerald F. Uelmen

Faculty Publications

Despite spending more than any other state on its implementation and administration, California today is saddled with a death penalty law that can be described only as completely dysfunctional. We have the longest death row in America, with approximately 670 inmates awaiting execution. Typically, the lapse of time between sentence and execution is twenty-five years, twice the national average, and is growing wider each year. One hundred nineteen inmates have spent more than twenty years on California's death row. Most of them will certainly die before they are ever executed. Since restoration of the death penalty in 1978, the leading …

The Poetry Of Persuasion: Early Literary Theory And Its Advice To Legal Writers, Stephen Smith

Faculty Publications

No abstract provided.