Law Commons^™

The Federal Response To Covid-19: Lessons From The Pandemic, Nancy J. Knauer

UC Law Journal

When the first suspected human-to-human transmission of the novel coronavirus was reported in January 2020, the United States had in place an elaborate set of pandemic disaster and response plans that spanned hundreds of pages. The George W. Bush administration spearheaded national pandemic planning in 2005 as part of the post-September 11 efforts to modernize the country’s disaster response capabilities. Subsequent administrations revisited and revised the various pandemic plans, including the Trump administration as recently as 2017 and 2018.

Despite these detailed plans, the Trump administration was slow to respond to the emerging public health crisis or implement any of …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson

Journal of Dispute Resolution

“This is a[n] issue we didn’t have when we had live court.” It was a chilling day for prosecutor Deborah Davis when she discovered a victim of domestic violence was in the same apartment as her abuser during a session of Zoom court. In this case, the survivor had done the hardest part; she had made the decision to prosecute her abuser. As court began, Davis saw that her client had a similar virtual background to the alleged abuser and noticed that her client was looking away from the camera while answering questions. This prompted Davis to request that police …

Charting A Middle Course For Court-Connected Mediation, John Lande

Journal of Dispute Resolution

Court-connected mediation programs have produced important benefits for parties, practitioners, courts, and society generally. These programs have helped lawyers settle tough cases and generally manage their workload while their clients retain the power to litigate if they cannot reach an acceptable agreement. Courts have created and enforced rules to protect the integrity of process so that parties’ time and money in mediation are well spent.

Questions Of Arbitrability In The World: Comparing The Jurisprudence Of The United States And India, Henry Sivils

Journal of Dispute Resolution

If a matter is not arbitrable, then it may not be arbitrated.2 Arbitrability, generally, refers to the authority that an arbitrator possesses to decide a matter.3 A challenge to that authority is considered a “question of arbitrability.”4 There are three types of questions of arbitrability: (1) substantive challenges that a dispute is not arbitrable under the terms of an arbitration clause; (2) the contention that, despite substantive arbitrability, procedural circumstances exist that prevent arbitration; and (3) “post-award attacks on an arbitrator’s decision.”5 Of those three, “whether a matter is arbitrable under a given arbitration clause” has had recent developments in …

Preserving The Relationship: Addressing The Covid Eviction Crisis Through Equitable Mediation, Cade Jones

Journal of Dispute Resolution

Not only has the coronavirus pandemic (“COVID-19”) has taken many lives, another substantial side effect are that many Americans are at risk of eviction because of the current COVID-19 pandemic. Since the pandemic began, more than 20 million renters have suffered job loss because of COVID-19. One particular aspect of daily life the pandemic has impacted is landlord-tenant relationships because tenants cannot make rent payments to the landlord which then leads to a landlord filing for bankruptcy. With tenants not making rent payments due to job loss, it has produced a detriment with landlord-tenant relationships that could produce a ripple …

Restorative Justice: An Alternative Dispute Resolution Approach To Criminal Behavior, Kayla Welch

Journal of Dispute Resolution

Beginning with the end of the Mass Prison Era in the late 1800s, Americans have looked for a better way to respond to crime and those who commit it. Since the Reformatory Era, the United States has swayed between punitive models based on either the Reformatory or Retributive theories. Despite the changes we have made, our criminal justice system suffers from long waiting periods for a trial, overburdened public defenders, overcrowded jails and prisons that often lead to unsafe conditions for the inmates and corrections officers, and many other problems.

Controlling Fairness In Standard Form Contracts: What Can Courts Do, And What Should They Do?, Marcus Moore

All Faculty Publications

Unfair terms in standard form contracts are one of Contract Law's most notorious and enduring problems. The vast transnational literature on this, now a century old, has long worked out its contours, even as it still searches for more effective solutions. The central problem can be simply stated: A form drafter's ability to dictate terms-characteristically unknown and unbargained by the parties who are form recipients-allows, in the absence of any other legal control, for the incorporation of one-sided terms favouring the drafting party. The implications are significant: The exhaustive list of terms typical of such contracts, combined with the pervasiveness …

Submission The Ministry Of Justice On Human Rights Act Reform Consultation — Q16: Should The Proposal For Prospective Quashing Orders Be Extended To Proceedings Under The Proposed Bill Of Rights?, Samuel Beswick

All Faculty Publications

I oppose the proposal in Question 16 of the Human Rights Act Reform Consultation to extend prospective quashing orders to proceedings under human rights law. I express no view here on suspended quashing orders, although I would urge the Government to consider experiences and critiques of this doctrine in comparable common law jurisdictions such as Canada before enacting this novel reform.

I have previously expressed opposition to prospective quashing orders in my submissions to the Judicial Review Reform Consultation and the House of Commons General Committee on the Judicial Review and Courts Bill 152, as well as in a contribution …

Climate Change, West Virginia V. Epa, And The Sec's Distinctive Statutory Mandate., Cynthia A. Williams, Donna M. Nagy, Jill E. Fisch, George S. Georgiev

Articles by Maurer Faculty

In March 2022, the Securities and Exchange Commission (SEC) proposed a rule that would require publicly traded companies to provide investors with various climate-related disclosures. See The Enhancement and Standardization of Climate-Related Disclosures for Investors, 87 Fed. Reg. 21344 (Apr. 11, 2022) (the Proposal). The rule has generated extensive debate; to date, the SEC has received more than 4,000 substantive comment letters and more than 10,000 form letters. Commenters have raised a variety of concerns about the Proposal, including questioning the extent to which the SEC has the authority to mandate climate-related disclosure. Since the Supreme Court’s June 2022 ruling …

Unauthorized And Unwise: The Lawful Use Requirement In Trademark Law, Robert A. Mikos

Vanderbilt Law Review

For decades, the United States Patent and Trademark Office (“PTO”) has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this “lawful use requirement,” the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule I controlled substances to mislabeled soap. This Article subjects the Agency’s lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Girls, Assaulted, India Thusi

Articles by Maurer Faculty

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Scholarly Articles

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Is Partisan Gerrymandering Unconstitutional? Rethinking Rucho V. Common Cause, Barnett J. Harris

University of San Francisco Law Review

No abstract provided.

What Should Ethical And Strategic Employers Do About Covid-19 Vaccines?, Dale B. Thompson, Susan A. Suspina, Katherina G. Pattit, Dawn R. Swink

University of San Francisco Law Review

No abstract provided.

The Limitations And Alternatives To Expanding The Equal Pay Act Under Bostock V. Clayton County, Ga., Valentina Wilson

University of San Francisco Law Review

No abstract provided.

Water In The Time Of Covid: Water Insecurity, Privatization, And Establishment Of The Human Right To Water, Liza Sternik

University of San Francisco Law Review

No abstract provided.

No Good Deed Goes Unpunished: Practical Solutions For Police Executives To Reduce The Likelihood Of Disciplinary Action Being Overturned Through Arbitration, Spring Sendele

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

A Timeshare By Any Other Name: Fractional Homeownership And The Challenges And Effects Of Commodified Single-Family Homes, Christopher Markuson

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

American Motherhood - A Taking, Nicole Knight

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Slavery And The History Of Congress’S Enumerated Powers, Jeffrey Schmitt

School of Law Faculty Publications

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Property Prohibitions: Why Criminalizing Prostitution Violates Constitutional Guarantees, James J. Bernstein

University of San Francisco Law Review

No abstract provided.

The Case For Pattern-Or-Practice Investigations Against District Attorney's Office, Rory Fleming

University of San Francisco Law Review

No abstract provided.

Firpta Repeal: The United States’ Post-Pandemic Economic Solution To Infrastructure Reform, Adam Mazin

University of San Francisco Law Review

No abstract provided.

The Common Law And The Self-Driving Car, Mbilike M. Mwafulirwa

University of San Francisco Law Review

No abstract provided.

The Future Of Criminal Culpability: Posttraumatic Stress Disorder's ("Ptsd") Effect On A Defendant's Actions And State Of Mind, Amin R. Yacoub, Becky Briggs

University of San Francisco Law Review

No abstract provided.

Out Of The Street And Into The State’S Arms: An Answer For The Drug Crisis?, Robert Corcoran

Student Works

No abstract provided.