Law Commons^™

Greensboro And Beyond: Remediating The Structural Sexism In Truth And Reconciliation Processes And Determining The Potential Impact And Benefits Of Truth Processes In The United States, Peggy Maisel

Faculty Scholarship

Over the last 35 years approximately forty truth commissions have investigated human rights violations and abuses in a wide range of countries and communities. Each of these forty commissions provides different lessons on how investigating and testifying about past abuse can lead to healing and change. I have participated in two of the more remarkable Truth and Reconciliation processes, the first as an observer, the other as an advisor. The former is perhaps the most widely known and discussed TRC process, the one which took place in South Africa from 1996 to 1998 that examined the entire apartheid era in …

Correspondents' Reports United States Of America, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how in 2013 the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in military courts-martial and captured enemy belligerents in military commissions and by US federal courts hearing detainee habeas challenges.

A Match Made On Earth: Getting Real About Science And The Law, Susan Haack

Articles

Modern legal systems increasingly depend on scientific testimony; but they also need somehow to ensure, so far as possible, that fact-finders aren't misled by highly speculative, poorly-conducted, or dishonestly-presented science. The Critical Common-sensist understanding of science that the author has developed in Defending Science and elsewhere sheds some light on why these interactions between law and science have proven so problematic. But Ms. Acharya's approach to these difficult issues rests on a flawed conception of the supposed "scientific method, " and an idea of legal "legitimacy" too weak to bear the weight she places on it; and her claim that …

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

The Indian States Of America: Parallel Universes & Overlapping Sovereignty, Joseph William Singer

American Indian Law Review

No abstract provided.

Improving (Software) Patent Quality Through The Administrative Process, Arti K. Rai

Faculty Scholarship

The available evidence indicates that patent quality, particularly in the area of software, needs improvement. This Article argues that even an agency as institutionally constrained as the U.S. Patent and Trademark Office (“PTO”) could implement a portfolio of pragmatic, cost-effective quality improvement strategies. The argument in favor of these strategies draws upon not only legal theory and doctrine but also new data from a PTO software examination unit with relatively strict practices. Strategies that resolve around Section 112 of the patent statute could usefully be deployed at the initial examination stage. Other strategies could be deployed within the new post-issuance …

The Crucial But (Potentially) Precarious Position Of The Chief Compliance Officer, Deborah A. Demott

Faculty Scholarship

This Article, written for a symposium on compliance issues in financial-services firms, focuses on the role of the chief compliance officer (“CCO”). Contrasting the position with that held by a firm’s general counsel or Chief Legal Officer (CLO), the article argues that a CCO’s position holds distinct challenges. Additionally, although internal compliance systems and personnel may be characterized as functional substitutes for external regulation, assessing the strengths and weaknesses of internal compliance requires a willingness to look deep within firms. The article argues that the law and regulation may enhance firms’ incentives to invest in effective internal compliance but may …

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Firearm Localism, Joseph Blocher

Faculty Scholarship

Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to …

Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.

United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young

Faculty Scholarship

The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of …

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Faculty Scholarship

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Regulating Shadows: Financial Regulation And Responsibility Failure, Steven L. Schwarcz

Faculty Scholarship

In the modern financial architecture, financial services and products increasingly are provided outside of the traditional banking system—and thus without the need for bank intermediation between capital markets and the users of funds. Most corporate financing, for example, no longer is dependent on bank loans but raised through special-purpose entities, money-market mutual funds, securities lenders, hedge funds, and investment banks. This shift, referred to as “disintermediation” and described as creating a “shadow banking” system, is so radically transforming finance that regulatory scholars need to rethink their assumptions. Two of the fundamental market failures underlying shadow banking—information failure and agency failure—were …

Reverse-Commandeering, Margaret Hu

Faculty Scholarship

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

Founding Legal Education In America, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Deference Or Abdication: A Comparison Of The Supreme Courts Of Israel And The United States In Cases Involving Real Or Perceived Threats To National Security, Eileen Kaufman

Scholarly Works

The Supreme Courts of Israel and the United States treat cases involving national security radically differently, or so it appears on the surface. The fact that the two courts make very different use of justiciability doctrines dramatically affects their willingness to decide “war on terrorism” cases that challenge aspects of national security programs as violative of individual rights. On the surface, the approaches of the two courts thus appear to be radically different, and indeed they are, at least with respect to their willingness to hear and decide cases in “real time” and in terms of their willingness to embrace …

Performance Gaps Between U.S. And European Casinos: A Comparative Study, Zheng Gu

UNLV Gaming Research & Review Journal

Recent years have seen the fast spread of legalized gaming throughout the world. Amid the frenzied gaming boom, new casinos have mushroomed on every continent. Casinos in different continents operate in different legal and market environments and may have performed quite differently. This study examines the performance results of U. S. casinos, those in Nevada and on the Las Vegas Strip in particular, in comparison with Dutch and French casinos in 1998. It was found that Dutch and French casinos outperformed U. S. casinos in both revenue efficiency and profitability. Noncompetitive European gaming markets most likely have helped European casinos …

When "Reasonableness" Is Not So Reasonable: The Need To Restore Clarity To The Appellate Review Of Federal Sentencing Decisions After Rita, Gall, And Kimbrough, Craig D. Rust

Touro Law Review

No abstract provided.

Limitations On Government: A Comparative Constitutional Analysis Of American And Iraqi Efforts To Preserve Liberty And To Protect Against Arbitrariness, Hemin Ibrahim Qadir

Law Student Scholarship

This dissertation is a comparative study in constitutionalism, the historical process of limiting government powers to enable the people to be well served and protected in important aspects of their human dignity. The two constitutional systems explored here are those of the United States and Iraq.

People have to be guaranteed protection and the Constitution must restrict the government from being too powerful to enact whatever laws or acts they want. The United States of America passed through many stages from the colonial period until present day to limit government powers, to protect human rights, fundamental rights, natural rights, and …

American Parent Bank Liability For Foreign Branch Deposits: Which Party Bears Sovereign Risk?, Adam Telanoff

Pepperdine Law Review

No abstract provided.

The United States-Canada Free Trade Agreement: Exporting Art By The Numbers, James A.R. Nafziger, Mary P. Rooklidge

Pepperdine Law Review

No abstract provided.

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

The Line-Item Veto: The Best Response When Congress Passes One Spending “Bill” A Year, L. Gordon Crovitz

Pepperdine Law Review

No abstract provided.

Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman

Pepperdine Law Review

No abstract provided.

Regulatory Conflicts: International Tender And Exchange Offers In The 1990s, John C. Maguire

Pepperdine Law Review

No abstract provided.

Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk

Pepperdine Law Review

No abstract provided.

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.

California's Constitutional Right To Privacy, J. Clark Kelso

Pepperdine Law Review

No abstract provided.

Corporations As Ships: An Inquiry Into Personal Accountability And Institutional Legitimacy , Art Wolfe

Pepperdine Law Review

No abstract provided.