Law Commons^™

Three Theories Of Substantive Due Process, Daniel O. Conkle

Articles by Maurer Faculty

Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving …

Minority Admissions To Law School: More Trouble Ahead, And Two Solutions, Jeffrey E. Stake

Articles by Maurer Faculty

U.S. News and World Report (USNAWR) rankings have created incentives that have changed law school admissions. The rankings pressure schools to admit applicants with high numbers rather than those who would do the most to improve the admitting law school or the bar to which it sends its graduates. Much attention has already been paid to decreased minority admissions stemming from increased weight on the LSAT. The shoe that has not dropped, but will soon fall, is the undergraduate grade point average (UGPA). When law schools give this the attention that USNAWR mandates, the diversity of law school classes will …

A Brief Comment On Trust Protectors, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Book Review. The Supreme Court And Religion In American Life, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira

Articles by Maurer Faculty

This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a …

Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira

Articles by Maurer Faculty

Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors' emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the …

Towards A Cosmopolitan Vision Of International Law: Identifying And Defining Cil Post Sosa V. Alvarez-Machain, Christiana Ochoa

Articles by Maurer Faculty

In the wake of the Supreme Court's decision in Sosa v. Alvarez-Machain, future Alien Tort Claims Act (ATCA) litigants seemingly will be asked to demonstrate that the norms giving rise to their actions are violations of clearly established Customary International Law (CIL). Given the mutable character of CIL, especially in the area of human rights, this will surely fuel the already voluminous literature on the content of the CIL of human rights.

While debate will certainly arise over the norms that have been become CIL, significant attention must be also be devoted to the problems inherent in the CIL of …

Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira

Articles by Maurer Faculty

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise …

The Justice Of Recovery: How The State Can Heal The Violence Of Crime, Linda G. Mills

UC Law Journal

A longstanding assumption of the criminal justice system is that victims benefit in some way from the prosecution and punishment of the person who caused them harm. This Article, however, argues that victim healing involves more than punishing the offender, and that by rethinking the roles victims perform in the criminal justice system, we may provide them with a more comprehensive menu of options to facilitate their recovery from crime. The societal goals of punishment and accountability and the individual desire for healing are not mutually exclusive. Incorporating recovery approaches from both the science of victimology and theories of restoration …

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

UC Law Journal

The last decade has seen remarkable progress in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, which have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be reexamined. Although studies in this area are preliminary, they have not yet satisfied the foundational requirements …

Lawyering For A Cause And Experiences From Abroad, Jayanth K. Krishnan

Articles by Maurer Faculty

For more than a decade, there has been a steady growth in what is now commonly referred to as the 'cause lawyering' literature. Partly as a response to those who were critical of the legal profession during the 1970s and 1980s, cause lawyering scholars have sought to rebut these critics' charges, as well as more comprehensively illustrate what, why, and how cause lawyers do what they do. While the critics of cause lawyers on the one hand, and cause lawyering scholars on the other, have made enormous contributions to the debate, only recently has the discourse shifted to examining an …

Why Kelo Is Not Good News For Local Planners And Developers, Daniel H. Cole

Articles by Maurer Faculty

When the Supreme Court announced its 2005 decision in Kelo v. City of New London, few legal scholars were surprised at the outcome, which was premised on precedents extending back to the middle of the 19th century. Legal scholars were surprised, however, by the intense political reaction to Kelo (fueled substantially by Justice O'Connor's hyperbolic dissent), as property-rights advocates, legislators (at all levels of government), and media pundits assailed the ruling as a death knell for private property rights in America.

Kelo's combination of relative legal insignificance and high political salience makes it an interesting case study in cross-institutional dynamics, …

Regulating The Mutual Fund Industry, Donna M. Nagy

Articles by Maurer Faculty

With virtually every other household in the United States invested in mutual funds, effective and efficient regulation of the mutual fund industry must be a top national priority. But the creation of a new private regulator - whether along the lines of SROs such as the NASD and NYSE or the recently created PCAOB - would be a step in the wrong direction. Instead, much more can be gained from strengthening the SEC's longstanding role as the principal overseer of mutual funds and improving other aspects of the existing regulatory regime.

Law, Markets And Democracy: A Role For Law In The Neo-Liberal State, Alfred C. Aman

Articles by Maurer Faculty

Especially after 1980, our belief in and our use of law to solve societal problems seemed to decline precipitously, well beyond the ebb and flow of political trends and tastes. Beginning in earnest in the 1980s, political discourse increasingly treated law and markets primarily in binary terms. You could have one or the other, but not both. More law meant less markets and vice versa. When it came to choosing between law or markets, the tide clearly had shifted. If injustices in the 1970s were greeted with the slogan "there ought to be a law", that approach to solving problems …

Indiana Law In Evolution, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

The Perils Of Defensive Conservation, Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.

Reconstructing Family Privacy, Suzanne A. Kim

UC Law Journal

Feminist legal theorists have long debated the proper role of privacy in women's lives. They have generally discredited the formalist division of society into "public" and "private" spheres to the extent that this model has historically permitted male abuse of women under the mantle of "domestic privacy." Indeed, the critique of the public-private dichotomy has been a central concern of feminist legal theory and the domestic violence movement. The critique has given rise to disputes among feminist legal scholars, however, about the utility and desirability of asserting women's rights claims on privacy grounds. While radical feminists reject privacy-based claims because …

Rescuing Dole: Limiting The Intrusion Of The Federal Common Law Of Foreign Relations Into The Foreign Sovereign Immunities Act, Thomas Albright

UC Law Journal

In Dole v. Patrickson, the U.S. Supreme Court determined when a corporation owned by a foreign sovereign is entitled to invoke federal question jurisdiction under the Foreign Sovereign Immunities Act. Following Dole, a foreign government must directly own a majority of the shares of a corporation for that corporation to qualify as an instrumentality of the foreign government and thus be entitled to access the federal courts. However, the federal common law of foreign relations, earlier recognized by the Supreme Court in Banco Nacionale v. Sabbatino but never defined, undermines Dole's holding. As interpreted by the circuit courts, the federal …

Mitigation And The Capital Defendant Who Wants To Die: A Study In The Rhetoric Of Autonomy And The Hidden Discourse Of Collective Responsibility, Daniel R. Williams

UC Law Journal

Two powerful adjudicatory ideals-preserving individual autonomy and promoting systemic reliability-collide most dramatically in cases where capital defendants join the prosecution in seeking a death verdict. Capital defendants do this by "waiving" the presentation of all mitigation evidence and affirmatively urging the jury to sentence them to death. This supposed expression of autonomy (presumably not unlike other constitutional waivers) impedes the sovereign's constitutional mandate to pursue reliable capital sentencing. Does autonomy trump reliability? This Article examines the mitigation-waiver conundrum in a way never done before, and by doing so, aspires to illuminate how the rhetoric of autonomy suppresses destabilizing notions such …

The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The Supreme Court, Richard J. Lazarus

UC Law Journal

The ability of a Supreme Court Justice to craft a majority opinion is the most important and least understood of the skills that distinguish between ordinary and truly extraordinary jurists. The Justice who is able to do so is the one most likely to produce Court opinions that, because of their persuasive force, promote the kind of public respect ultimately necessary for the Court's authority. The publication of the papers of Justice Harry Blackmun (The Blackmun Papers) in 2004 allows an assessment of Justice Antonin Scalia's effectiveness in crafting Supreme Court precedent in the protection of property rights. The Papers …

California's Punitive Damages Law: Continuing To Punish And Deter Despite State Farm V. Campbell, Kathleen S. Kizer

UC Law Journal

In State Farm v. Campbell, the U.S. Supreme Court held that the punitive damages awarded in a particular case must be proportional to the amount of compensatory damages awarded in that case. Although the Court refrained from setting a "bright-line ratio," many courts reviewing awards after State Farm have time and again reduced punitive damages awards, using factors between four and nine in reliance on proclamations made by the Court in State Farm. In addition, State Farm casts doubt on whether a defendant's financial condition is relevant to the issue of punitive damages. Both of these assertions-that punitive damages must …

Beyond Moody: A Re-Examination Of Unreasonably Small Capital, Lee B. Shepard

UC Law Journal

Fraudulent conveyance laws may end up back in the spotlight as the economy slows following a period of sharply increased leveraged buyout activity and aggressive lending tactics. Since participants in leveraged transactions are more sophisticated than in the past, plaintiffs may focus on unreasonably small capital, rather than insolvency, to show that a debtor engaged in a constructively fraudulent conveyance or transfer. Unfortunately, unreasonably small capital is an underdeveloped legal concept, particularly with regard to standards by which courts can determine whether a transaction left a debtor with unreasonably small capital.

The leading case on the subject, Moody v. Security …

The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe

UC Law Journal

The experimental use exception has recently come under attack by many who consider it too narrow. Much of this discontent with the doctrine has been spurred by a relatively recent Federal Circuit opinion, Madey v. Duke University, which makes clear that a research university does not receive immunity under the experimental use exception when its researchers engage in research or conduct experiments using patented inventions. To determine whether such a narrowing is proper, one must consider the overarching theoretical question about the tradeoff between protecting patentees' rights and maintaining incentives to innovate. In the context of the experimental use exception, …

Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Mark R. Fondacaro, Christopher Slobogin, Tricia Cross

UC Law Journal

This Article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. The Court's reliance on due process means that the central goal in juvenile justice is fundamental fairness, which does not have …

Hale's Legacy: Why Private Property Is Not A Synonym For Liberty, Ilana Waxman

UC Law Journal

For anyone interested in critiquing the laissez-faire view of regulation as an illegitimate intrusion on the rights of property owners, it is particularly important to understand the historical fate of progressive critiques during the Lochner era. One such critique came from Robert Hale, a progressive law professor and economist of the 1920s-1940s who has proved to be one of the most enduring of the Lochner-era critics. Although Hale's critique of private property and the free market fell into obscurity after his retirement in 1949, it was revived in the 1970s, and has been the subject of considerable scholarly interest for …

Delinquent Or Disabled? Harmonizing The Idea Definition Of "Emotional Disturbance" With The Educational Needs Of Incarcerated Youth, Moira O'Neill

UC Law Journal

Congress enacted the Individuals with Disabilities Education Act (IDEA) to meet the special education needs of disabled youth. Yet the Department of Education regulations defining "emotional disturbance," one of the qualifying disabilities under the IDEA, have consistently defined the term to exclude youth diagnosed as "socially maladjusted." Special education scholars and professionals have long criticized this definition of emotional disturbance as imprecise and inconsistent with mental health constructs of emotional and behavioral disorders. Incarcerated youth are particularly affected by this definition of "emotional disturbance," as they demonstrate a higher prevalence of special educational needs than does the public school population. …

Hetch Hetchy: To Drain Or Not To Drain, Hastings Law Journal

UC Law Journal

Can California afford to lose a major reservoir, even if it restores a jewel of Yosemite Valley? The California Department of Water Resources is scheduled to release a report (requested by Governor Schwarzenegger) on the feasibility of draining the Hetch Hetchy Reservoir and restoring the valley that John Muir referred to as "one of natures rarest and most precious mountain temples." Proponents and opponents disagree over the cost of dam removal and valley restoration. This Panel of experts discussed and debated the numerous issues related to this matter.

Keynote Address, Roderick E. Walston

UC Law Journal

No abstract provided.

Environmental Justice: Access To Clean Drinking Water, Hastings Law Journal

UC Law Journal

Many low-income communities and communities of color are unable to advocate for clean drinking water or oppose rate hikes for drinkable water. Failing infrastructure, industrial pollution, and increasing water scarcity in California disproportionately affect vulnerable, marginalized communities. This Panel focused on community organization and novel legal approaches (such as Title VI Civil Rights complaints) that could be used to advocate for clean drinking water.

Welfare To What?, Noah Zatz

UC Law Journal

Ten years ago, President Clinton fulfilled his campaign pledge to end "welfare as we know it" by signing sweeping federal welfare reform legislation. The replacement of Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF) marked an important transformation in the character of the American welfare state. Work provided the core of the much-touted public policy consensus underlying this transformation, one that simultaneously restricted and expanded the availability of government transfers to low-income Americans. While tough new TANF work requirements cut back on welfare for those who did not work, those who did work but …