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UC Law Science and Technology Journal

No abstract provided.

How Attorneys Can Be Quasi-Mediators, John Lande

Faculty Publications

This distills insights from a forthcoming article, How Can You Turn Adversarial Attorneys into Quasi-Mediators? The article is a Theory Meets Practice column in CPR’s Alternatives magazine that summarizes a discussion with members of the Association of Attorney-Mediators.

Attorneys acting as quasi-mediators prefer to be cooperative and use mediation techniques but they aren’t neutral. They tailor their actions based on their clients’ preferences and the other side’s approach. Another term for quasi-mediators is “good lawyers.”

Based on the forthcoming article and the Real Practice Systems Project Menu of Mediation Checklists, this two-page article lists things that mediators can do to …

Truth In Advertising For Environmental Sustainability, Robin M. Rotman, Aidan David-Pennington

Faculty Publications

“Sustainability” is in—but what does that term mean, when applied to products, services or brands? This article explores existing Federal Trade Commission (“FTC”) oversight of “sustainable” claims in marketing, centering on the FTC’s Guidelines for the Use of Environmental Marketing Claims (often referred to as the “Green Guides”). It analyzes thousands of public comments filed in a recent FTC quasi-rulemaking docket to inform proposed revisions to the Green Guides. The article suggests that the FTC include guidance on “sustainable” claims in its next revision to the Green Guides, and further recommends that the FTC formally extend the Green Guides to …

Limitation For Liberty: A Commentary On Federalism And The Tenth Amendment, Riley Banker

Senior Honors Theses

The concept of Federalism is essential to the very survival of the United States. However, recent decisions by the Supreme Court have illustrated attempts by the federal government to expand its authority and undermine the balance of power created by Federalism. This thesis will explore the concept of Federalism to demonstrate how it can best be protected. First, this thesis will address the origins of Federalism. Second, it will show how the principles of Federalism are manifested within the founding documents of the United States. Finally, this thesis will analyze current events including Supreme Court cases to demonstrate a concerning …

Parole Under Ina 212(D)(5)(A): Balancing Humanitarian Needs And Legal Boundaries, Jorge Miguel Magdaniel Manzur

Immigration Law Blog

This article examines how various uses and interpretations of parole under INA § 212(d)(5) have shaped immigrants' access to benefits, highlighting the balance between executive discretion and statutory limits within recent political and humanitarian contexts.

Metagenomic Sequencing For Early Detection Of Future Engineered Pandemics: Foreshadowing The Privacy Challenge, Nir Eyal, Bridget Williams, Kevin M. Esvelt, Jane R. Bambauer

UF Law Faculty Publications

In this commentary, we imagine how a global system of metagenomic sequencing could be governed in order to reap the benefits and manage the risks. Global institutional engineers and their academic partners would need to develop a new governance model to ensure that all partners involved in a global metagenomic surveillance system cooperate as needed.

How Detrimental Is Transunion V. Ramirez, Really? Understanding The Impact On Environmental Law, Lauren Young

Washington Law Review

In 2021, the United States Supreme Court issued a controversial opinion with the potential to constrict the standing doctrine. TransUnion v. Ramirez appeared to alter standing’s “concrete harm” requirement, which would significantly restrict plaintiffs’ ability to invoke the jurisdiction of federal district courts. Building off its 2016 case, Spokeo v. Robins, the Court declared that intangible harms are only concrete when “plaintiffs have identified a close historical or common-law analog[] for their asserted injury.” The “common-law analog[]” required a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” The Court mandated this requirement …

Note From The Editor-In-Chief, Kara L. Anderson

University of the Pacific Law Review

No abstract provided.

Note From Chief Comment Editor, Sunny Gorba

University of the Pacific Law Review

No abstract provided.

Mcmarriage Equality, William N. Eskridge Jr.

University of the Pacific Law Review

No abstract provided.

Navigating Neither, Susan S. Kuo

University of the Pacific Law Review

No abstract provided.

Osha Overreach: The Nondelegation Doctrine And The Strain On Small Businesses, Zachary Byrne

University of the Pacific Law Review

No abstract provided.

Algorithms, Images, And Authorship: Creating Copyright Criteria In The Age Of Ai-Assisted Imagery, Whitney Ellis

University of the Pacific Law Review

No abstract provided.

A Medicare Mess: How The Sad (List) Policy Injects Beneficiaries With Financial And Health Hardship, Kelly Ross

University of the Pacific Law Review

No abstract provided.

Strengthening America’S Social Fabric Through Service: Incentivizing National Civilian Service, Griff Ryan-Roberts

University of the Pacific Law Review

No abstract provided.

Daca's Major Questions Exception, Matthew Calabrese

Hofstra Law Review

The Supreme Court has extracted a new role as the gatekeeper of administrative action under the major questions doctrine. Underlying the doctrine is an understanding that agencies cannot act to address policy issues implicating questions of great political and economic significance unless specifically authorized by Congress. However, DACA presents a different question that should be exempted from the major questions doctrine. This is because DACA relies on two levels of executive authority: statutory—under the Immigration and Nationality Act and the Homeland Security Act—and constitutional—under the Take Care Clause. Because, as this Article explains, the two authorities cannot be disentangled, courts …

Controlling Buyer And Seller Power: Reviving Enforcement Of The Robinson-Patman Act, Daniel A. Hanley

Hofstra Law Review

The Robinson-Patman Act (“RPA”) is a federal law enacted in 1936. Congress’s goal in drafting this historic legislation was to protect and promote democracy and individual liberty in the United States by supporting the creation and vitality of small and independent businesses, thereby distributing power and opportunity within the U.S. political economy.This Article provides a robust defense of Congress’s goals and intentions in enacting the RPA as well as a detailed history of how the Act benefited American society when it was vigorously enforced. It concludes with thoughts on how the RPA can be used to revitalize today’s economy, thus …

Does The Federal Budget Trump Constitutional Rights, Laura Snyder

Hofstra Law Review

Even though most Americans living outside the United States do not owe U.S. federal income tax, the U.S. nationality-based income tax system nevertheless places considerable burdens on them. In doing so, the system violates Fourteenth Amendment equal protection as well as other constitutional and human rights. The purpose of the system is not to raise revenue. Instead, its purpose is to punish and scapegoat American nationals living outside the United States, for no reason other than the fact that they live outside the United States. This is evidenced by the statements and actions of policymakers as well as by Internal …

Taking Back The Bar: The Need For State Legislation Directed At Addressing The Disparate Impact Of The Bar Exam And Holding The Ncbe Accountable, Alexa Cibellis

Hofstra Law Review

No abstract provided.

All Bark, No Bite: How The Lone Star "Junk-Science Writ" Could Reinvigorate Federal Habeas Review, Robert Harry Saylor Iii

Hofstra Law Review

No abstract provided.

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

In The Name Of Tradition: A Comparative Study On Nonestablishment, Sungmin Cho

Washington Law Review

The Establishment Clause of the First Amendment to the United States Constitution prohibits the government from establishing a state religion. The U.S. Supreme Court has developed different tests to determine whether a government action complies with this principle. Over the past few decades, the Court gradually turned to whether the challenged practice is consistent with the history and tradition of the nation.

Meanwhile, the separation of church and state is not a notion unique to the United States. After centuries of Confucian monarchy, Korea drafted a modern constitution with a similar provision. Nevertheless, the Constitutional Court of Korea has upheld …

Abdication Of Power: Arizona V. Navajo Nation And Judicial Refusal To Enforce The Federal Trust Relationship, Jessica Yin

Washington Law Review

Over 150 years ago, the federal government signed a treaty promising the Navajo people a permanent home within the bounds of their ancestral homeland. To this day, that promise remains unfulfilled because the Navajo people face a severe water access crisis. When the Navajo Nation brought the United States to the Supreme Court to enforce its promise, the Court declined to hold the federal government accountable.

This Comment analyzes the Supreme Court’s decision in Arizona v. Navajo Nation through the lens of the judiciary’s historical approach to the federal trust relationship. The Court has traditionally defined the federal trust relationship …

Using 'Enacted Purposes' To Interpret A Regulatory Statute, Bernard S. Sharfman

SMU Law Review Forum

How does a regulatory agency or a reviewing court deal with the multiple “enacted purposes” that may exist in a regulatory statute? In this Article it is argued that the problem of multiple purposes can be optimally dealt with by looking at these purposes as forming an optimization problem—minimization or maximization. This novel approach requires identifying, if possible, one purpose as the primary objective and then treating the other clearly stated purposes as constraints. Depending on the issue at hand, not all constraints will be relevant. However, the primary objective will always need to be considered. Once the primary objective …

Dimensions Of Prosecutor Decisions: Revealing Hidden Factors With Correspondence Analysis, Megan S. Wright, Cindy Cain, Shima Baradaran Baughman

Faculty Scholarship

Despite the significant impact of prosecutorial discretion on criminal justice outcomes, there are very few large-scale studies of state and local prosecutor decision-making. Our previous empirical research demonstrated that a defendant’s race and class do not affect prosecutorial charging decisions and revealed a gap in the literature about factors that do influence prosecutorial charging decisions and sentencing recommendations. Accordingly, we designed a study to obtain more information about prosecutor discretion and decision-making. Over 500 prosecutors from across the United States completed our vignette-based experiment and survey, which produced quantitative and qualitative data. We transformed these data to use Correspondence Analysis …

Colonizing By Contract, Emmanuel H. Arnaud

Articles

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

The Federal Rules Of Constitutional Procedure, Ramon Feldbrin

UC Law Journal

Judicial review has distinct purposes, difficulties, and modalities, but there are no guideposts as to how these features ought to be addressed in procedural terms. The reason is a deep-seated, but largely unarticulated, assumption that constitutional litigation is simply governed by the same rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This Article draws new attention to rules and practices that have historically regulated constitutional cases and set them apart from the typical way all other cases make their way through the judicial system. These procedures include, among other things, the requirement to …

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …

The Griffin's Case Phenomenon And The Problem Of Historical Knowledge In Legal Arguments, Rachel A. Shelden

William & Mary Bill of Rights Journal

The sudden relevance of a formerly little-known historic case is surely not new; much of legal history is necessarily about discovery and rediscovery of the past. Still, I think the clarity with which we can outline the development of the Griffin’s Case phenomenon offers an opportunity to think carefully about the role of history in constitutional conversation. What follows, then, is a short exploration of the case’s recent (re)entry into our historical consciousness. Tracing this phenomenon highlights (at least for me) some potential difficulties embedded in the interaction between legal advocacy and what we know about the past.

This abstract …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …