Law Commons^™

Setting The Standard For “Neutral” Arbitrators: The Risk Of Evident Partiality And The Impact Of Monster Energy V. City Beverages, Schmelter, William

Santa Clara Law Review

The use of Alternative Dispute Resolution (ADR), and particularly arbitration, has grown in tandem with the delays and costs of litigating in overburdened state and federal court systems, but that rise in popularity has not come without a cost. Although arbitration may often be a preferable alternative to a full-blown court trial, the inconsistency and insufficiency of existing disclosure requirements for arbitrators in many states limits the ability of parties to make an informed evaluation as to the risk or existence of potential bias. The recent Monster Energy case out of the United States Court of Appeals for the Ninth …

Separating Preemption From The Subject Matter Analysis Of 35 U.S.C. § 101, Swartz, Rodney

Santa Clara Law Review

With what seems to be a fluke of history, the Supreme Court has developed a subject matter analysis framework embodied in 35 U.S.C. § 101 that relies on the preemption doctrine to justify invalidation. This Article establishes that preemption has a distinct objective that is more closely aligned with the written description framework of § 112 than with the subject matter eligibility framework of § 101. As a result of relying on preemption, the Court has created an arbitrary and difficult to apply test, resulting in a chasm between the United States Patent and Trademark Office (USPTO) and courts that …

Texas, Abortion, And State Action, Alexander J. Lindvall

SMU Law Review Forum

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday …

Full Circle: From Disabled Law Student To Law Professor, Katherine Pérez

Journal of Legal Education

No abstract provided.

Book Review Of Law In The Time Of Covid-19, Jessie Wallace Burchfield

Journal of Legal Education

No abstract provided.

Book Review Of Mutual Aid: Building Solidarity During This Crisis (And The Next), Scott L. Cummings

Journal of Legal Education

No abstract provided.

Towards Cnl-Based Verbalization Of Computational Contracts, Inari Listenmaa, Maryam Hanafiah, Regina Cheong, Andreas Kallberg

Centre for Computational Law (2022-2025)

We present a CNL, which is a component of L4, a domain-specific programming language for drafting laws and contracts. Along with formal verification, L4’s core functionalities include natural language generation. We present the NLG pipeline and an interactive process for ambiguity resolution.

Denial Of Jury Trials For Employees With Disabilities: The High Bar Of Proving Discrimination Intent, Stacy Hickox, Maya Stevelinck

Hofstra Labor & Employment Law Journal

Employees with disabilities face stigma and stereotypes associated with their impairment. Revelation of a disability to obtain an accommodation can lead to negative consequences including harassment, retaliation, or even discharge, as documented by a survey of employees who requested accommodations at a university. This paper explores how difficult it is for employees facing such negative consequences to prove discriminatory intent under the Americans with Disabilities Act (hereinafter "ADA"). An extensive review of court decisions reveals that the ADA's protection against discrimination rarely provides relief to employees who suffer those negative consequences because the courts defer to employers' reasons for adverse …

Points About Cedar Point: What Labor Access Survives, And What Should Survive (Or Be Restored), Michael J. Hayes

Hofstra Labor & Employment Law Journal

No abstract provided.

Utilizing Telehealth To Practice Medicine Across State Lines: The Enforceability Of Physician Non-Compete Agreements And Non-Solicitation Clauses, Alexia Willis

Hofstra Labor & Employment Law Journal

No abstract provided.

Why Disability Studies In Criminal Law And Procedure?, Jamelia N. Morgan

Journal of Legal Education

No abstract provided.

Book Review Of Integrating Doctrine And Diversity: Inclusion And Equity In The Law School Classroom, Stevie Leahy

Journal of Legal Education

No abstract provided.

End Matter

Hofstra Law Review

No abstract provided.

Black Lawyers Matter: Enduring Racism In American Law Firms, Vitor M. Dias

University of Michigan Journal of Law Reform

Scholars and practitioners have extensively examined patterns of racial inequality in U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers, and family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict, also precipitate work transitions. Beyond corporate firms, however, an urgent question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession?

In this Article, I address this question drawing upon data from the first nationally representative, longitudinal …

Federal-State Partnership: How The Federal Government Should Better Support Its State Unemployment Insurance Offices In Times Of Crisis, Maddie Mcfee

University of Michigan Journal of Law Reform

In March 2020, the COVID-19 pandemic caused millions of people to lose their jobs and become dependent on unemployment benefits. State unemployment offices were not prepared for this sudden onslaught of claims. Offices could not increase staffing levels because they were not given money by the federal government to do so. As offices were overwhelmed, a scammer group named Scattered Canary took this opportunity to fraudulently claim millions of dollars from several states. Because the federal government supplies administrative funds to states based on average previous need, the system is not designed to support states’ increased needs during sudden economic …

“That Name Is Dead To Me”: Reforming Name Change Laws To Protect Transgender And Nonbinary Youth, Sarah Steadman

University of Michigan Journal of Law Reform

Content warning: this Article discusses suicidality.

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name—one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen …

Emergency Money: Lessons From The Paycheck Protection Program, Susan C. Morse

University of Michigan Journal of Law Reform

The Paycheck Protection Program, or PPP, was huge. Between April 2020 and May 2021, it provided almost $800 billion to more than 11 million businesses—about a third of all U.S. businesses with 500 employees or fewer. The PPP was also flawed. Treasury and the Small Business Administration faced incomplete statutory instructions and a challenging tradeoff between speed and accuracy in distributing PPP funds.

These flaws make the PPP a realistic and valuable case study; the PPP reveals tools that can be applied to similar distributions of emergency funds. One tool is back-end adjustments, meaning that funds are first distributed and …

A Body’S Work: On Self And Peer Education As A Black Disabled Lawyer, Britney Wilson

Journal of Legal Education

No abstract provided.

Front Matter

Hofstra Law Review

No abstract provided.

Don't Always Believe What You See: Shallowfake And Deepfake Media Has Altered The Perception Of Reality, Samuel D. Hodge Jr.

Hofstra Law Review

No abstract provided.

The Politics Of Bar Admission: Lessons From The Pandemic, Leslie C. Levin

Hofstra Law Review

The controversy over how and whether to administer the July 2020 bar examination during the COVID-19 pandemic upended the usual process of lawyer regulation. New actors—including bar applicants—very publicly challenged regulators’ decisions and questioned the safety and fairness of plans for the bar exam. Some advocated for emergency admission without the need to satisfy the bar examination requirement. Joined by law school deans and faculty, the advocacy occurred against the backdrop of the politicization of COVID-19, street protests over police misconduct and racial inequality, and long-standing skepticism about the value and fairness of the bar exam. Regulators throughout the United …

Don't Hate The Player, Hate The Game: Video Game Loot Boxes, Gambling, And A Call For Administrative Regulation, Jason Egielski

Hofstra Law Review

No abstract provided.

The World Of Private Terrorism Litigation, Maryam Jamshidi

Michigan Journal of Race and Law

Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism-related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while reinforcing …

Material Support Prosecutions And Their Inherent Selectivity, Wadie E. Said

Michigan Journal of Race and Law

The government’s maintenance of a list of designated foreign terrorist groups and criminalization of any meaningful interaction or transactions – whether peaceful or violent - with such groups are no longer novel concepts. Inherent in both listing these groups and prosecuting individuals for assisting them, even in trivial ways, is the government’s essentially unreviewable discretion to classify groups and proceed with any subsequent prosecutions. A summary review of the past quarter-century reveals the government’s predilection for pushing the boundaries of what it deems “material support” to terrorist groups, all the while making greater and greater use of a criminal statutory …

State Sponsored Radicalization, Sahar F. Aziz

Michigan Journal of Race and Law

Where was the FBI in the months leading up to the violent siege on the U.S. Capitol in 2021? Among the many questions surrounding that historic day, this one reveals the extent to which double standards in law enforcement threaten our nation’s security. For weeks, Donald Trump’s far right-wing supporters had been publicly calling for and planning a protest in Washington, D.C. on January 6, the day Congress was to certify the 2021 presidential election results. Had they been following credible threats to domestic security, officials would have attempted to stop the Proud Boys and QAnon from breaching the Capitol …

9/11 Impacts On Muslims In Prison, Spearit

Michigan Journal of Race and Law

It is no understatement to say that September 11, 2001, is the most important date in the history of American Islam. From this day forth, Muslims would become a target for social wrath and become vilified like at no other time in American history. In one fell swoop, Muslims became the most feared and hated religious group in the country. While analysis of the impacts on Muslims tends to focus on Muslims outside of prison, it is critical to recognize that Muslims in prison were no exception to the post- 9/11 hostilities directed at Muslims. They experienced similarly heightened levels …

A Religious Double Standard: Post-9/11 Challenges To Muslims’ Religious Land Usage, Asma T. Uddin

Michigan Journal of Race and Law

Muslims in the United States face real limits on their religious freedom. Numerous influential individuals and organizations even posit that Islam is not a religion and that, therefore, Muslims do not have rights to religious freedom. The claim is that Islam is a political ideology that is intent on taking over the country and subverting Americans’ constitutional rights. This narrative has gained momentum since the attacks of September 11, 2001 and continues to be amplified and disseminated by a well-funded cadre of anti-Muslim agitators. One area where its effects can be seen clearly is in religious land use, where a …

Sexual Assault Enablers, Institutional Complicity, And The Crime Of Omission, Amos N. Guiora

Utah Law Faculty Scholarship

Sex abuse, particularly of children, is a crime which any rational person would wish to prevent. However, when an individual’s loyalties and responsibilities to an institution put them at odds with preventing sex abuse, it is far too often the institution which takes precedence. This is the grim phenomenon of institutional complicity. It is a plague which, sadly, permeates institutions of all types, be it a school, hospital, sports team, church, military, or government agency. It also permeates countries as a global issue.

I have interviewed dozens of survivors who suffered under an abuser who was protected by an institution. …

The Aftermath Of Carpenter: An Empirical Study Of Fourth Amendment Law, 2018-2021, Matthew Tokson

Utah Law Faculty Scholarship

Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.

This Article reports the results of a large-scale empirical study of the impact of …

Universal Access To Clean Water For Tribes In The Colorado River Basin, Heather Tanana, Jaime Garcia, Ana Olaya, Chelsea Colwyn, Hanna Larsen, Ryan Williams, Jonathan King

Utah Law Faculty Scholarship

The coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence.

This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack piped water …