Law Commons^™

Victim Impact Statements At Canadian Corporate Sentencing, Erin L. Sheley

Faculty Scholarship

The recent SNC-Lavalin scandal and its political fallout have drawn
public attention to an existing culture of impunity enjoyed by corporate
criminal wrongdoers, despite the 2004 changes to the Criminal Code of
Canada that intended to make corporate prosecutions easier. In this article,
I argue that the conceptual problems with corporate criminal liability may
lie in the criminal justice system’s general misapprehension of the nature of
corporate crime; especially of the distinct nature of the harm experienced
by white collar victims. I further argue that, therefore, part of the solution
to under-enforcement may be evidentiary: the Crown and courts should, …

Disgorging Harvey Weinstein's Salary, Jessica K. Fink

Faculty Scholarship

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing.

This intensified spotlight on sexual harassment has exposed …

Blue Lives & The Permanence Of Racism, I. India Thusi

Faculty Scholarship

In true dystopian form, the killing of unarmed Black people by the police has sparked a national narrative about the suffering of police officers. “Blue Lives Matter” has become the rallying call for those offended by the suggestion that we should hold police officers accountable for killing unarmed Black people. According to a December 2016 poll, 61% of Americans believed that there was a “war on police,” and 68% of Whites had a favorable view of the police as compared to 40% of Blacks. Lawmakers around the country have been proposing Blue Lives Matter laws that make it a hate …

On Beauty And Policing, I. India Thusi

Faculty Scholarship

ABSTRACT-"To protect and serve" is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers' perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and …

Hernandez, Bivens, And The Supreme Court's Expanding Theory Of Judicial Abdication, William J. Aceves

Faculty Scholarship

Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican child, was playing with his friends in Mexico when he was shot in the face by a U.S. Border Patrol Agent standing in the United States. Sergio died on the concrete ground where he fell.

In Hernandez v. Mesa, Sergio’s family brought a federal lawsuit seeking to hold Agent Jesus Mesa, Jr. responsible for the death of their son. They alleged Agent Mesa had violated Sergio’s constitutional rights and based their claim on the Bivens doctrine. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court established a …

Patents, Information, And Innovation, Brenda M. Simon

Faculty Scholarship

Inventors and commercialization partners often rely on patents to facilitate the exchange of sensitive information. Most scholarship in this area has focused on the areas of software and biotechnology. To provide a richer description of the role of patents in the innovative process, this project evaluates the existing literature and sets forth examples drawn from a series of interviews with professionals from the largely-overlooked medical device industry. The limited analysis of the medical device industry has focused on the largest few dozen firms—as publicly-traded entities, a great deal of data about them is readily available. Small medical device companies are …

The Problems With Decision-Making, Joanna K. Sax

Faculty Scholarship

Our society faces major challenges in numerous areas, including climate change and healthcare. Addressing these problems with technological advances are of great importance. Increasingly, however, consumers are resisting or rejecting such technological interventions based on inappropriate assignment of risk. In other words, the consumer assessment of risk is not in line with evidence-based assessment of risk. This article focuses on two controversial areas, vaccines and genetically engineered food, as examples in which consumers assign a high risk despite an evidence-based assessment of low risk. This article describes how empirically tested decision-making theories explain why consumers inappropriately assign risk. While these …

Language Access And Due Process In Asylum Interviews, Pooja R. Dadhania

Faculty Scholarship

The Department of Homeland Security does not provide interpreters to asylum applicants during their asylum interviews, instead requiring them to supply their own. This Article challenges this deprivation of language access as a procedural due process violation because it denies limited English proficient asylum seekers meaningful access to the statutorily created affirmative asylum process. The Department of Homeland Security's failure to provide interpreters can silence limited English proficient asylum seekers by depriving them of the opportunity to meaningfully present their claims. Asylum seekers, especially those who are low income or speak rare languages, face significant challenges in finding suitable interpreters. …

Schrodinger's Corporation: The Paradox Of Religious Sincerity In Heterogeneous Corporations, Catherine A. Hardee

Faculty Scholarship

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and to declare the corporation, as a whole, either sincere or insincere in its beliefs. Although the Supreme Court and scholars …

Yearning To Breathe Free: Migration Related Confinement In America, Danielle C. Jefferis

Faculty Scholarship

No abstract provided.

"Spain For The Spaniards": An Examination Of The Plunder & Polemic Restitution Of The Salamanca Papers, Emily T. Behzadi

Faculty Scholarship

Throughout the Spanish Civil War, General Francisco Franco assembled numerous task forces to seize thousands of documents, photographs, prints, and artworks from private citizens and institutions that were politically adverse to his totalitarian regime. The majority of these so-called “Salamanca Papers” were taken from Catalonia, an autonomous community with a particularly contentious history with the Spanish government. Under existing principles of Spanish and international law, it is difficult to determine whether the Spanish State or Catalonia are the bona fide owners of this historical archive. The case over the ownership of the Salamanca Papers is one rarely discussed outside of …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Faculty Scholarship

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement ("DRM"), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Paper Terrorists: Independence Movements And The Terrorism Bar, Pooja R. Dadhania

Faculty Scholarship

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the Immigration and Nationality Act is broad — it can bar most forms of immigration relief, including asylum, and reaches far beyond ordinary definitions of terrorism. For example, the terrorism bar can block immigration relief for noncitizens who nonviolently supported a militia fighting for independence against …

Traditional Knowledge In Taiwan: A Call For Greater Participation Of Indigenous Peoples In The Global Intellectual Property Marketplace, James M. Cooper

Faculty Scholarship

This Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island's government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the …

Artificial Intelligence Inventions & Patent Disclosure, Tabrez Y. Ebrahim

Faculty Scholarship

Artificial intelligence (“AI”) has attracted significant attention and has imposed challenges for society. Yet surprisingly, scholars have paid little attention to the impediments AI imposes on patent law’s disclosure function from the lenses of theory and policy. Patents are conditioned on inventors describing their inventions, but the inner workings and the use of AI in the inventive process are not properly understood or are largely unknown. The lack of transparency of the parameters of the AI inventive process or the use of AI makes it difficult to enable a future use of AI to achieve the same end state. While …

National Cybersecurity Innovation, Tabrez Y. Ebrahim

Faculty Scholarship

National cybersecurity plays a crucial role in protecting our critical infrastructure, such as telecommunication networks, the electricity grid, and even financial transactions. Most discussions about promoting national cybersecurity focus on governance structures, international relations, and political science. In contrast, this Article proposes a different agenda and one that promotes the use of innovation mechanisms for technological advancement. By promoting inducements for technological developments, such innovation mechanisms encourage the advancement of national cybersecurity solutions. In exploring possible solutions, this Article asks whether the government or markets can provide national cybersecurity innovation. This inquiry is a fragment of a much larger literature …

Victim Impact Statements And Corporate Sex Crimes, Erin L. Sheley

Faculty Scholarship

This Article argues that more frequently including victim impact statements during the sentencing phase of corporate criminal trials would help lay foundation for legislative reforms geared towards punishing corporations on the occasions where genuinely corporate misconduct, such as that of USAG and the Weinstein Company, can be said to have caused sexual offenses. The Article proceeds in three Parts. First, I argue that criminal enforcement against corporations is generally untethered from harm to victims, and that this thwarts one of the most coherent justifications for the existence of corporate criminal liability. Next, I argue that a focus on victim narratives …

Criminalizing Coercive Control Within The Limits Of Due Process, Erin L. Sheley

Faculty Scholarship

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” …

Women Law Deans, Gender Sidelining, And Presumptions Of Incompetence, Laura M. Padilla

Faculty Scholarship

Discussions of presumptions of incompetence and gender sidelining all address challenges that women, especially women of color, face in leadership roles. This Article explores these topics in the context of law deans.

This Article starts with updated data on the number of women law deans, including women of color, and demonstrates increased numbers of both women and women of color in deanships. It then shifts to plausible explanations for this growth: some optimistic and some more skeptical. It may be no coincidence that as the job became less desirable, women were appointed in greater numbers.

Next, this Article provides narrative …

Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson

Faculty Scholarship

Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by …