Law Commons^™

Pacing Beside The Pool: Coaching Champion Writers To A Strong Finish In Clinic (Without Jumping In And Finishing For Them), Hillary A. Wandler

Faculty Law Review Articles

No abstract provided.

Aba Standard 303(C) And Divisive Concepts Statutes And Regulations: Challenges And Opportunities, Andrew King-Ries, Karen Tokarz, Becky L. Jacobs, Sherley Cruz, Kendall Kerew, Carwina Weng

Faculty Law Review Articles

This article by six clinicians discusses the challenges and opportunities of new ABA Standard 303(c), including the implications of and interactions between Standard 303(c) and divisive concepts laws and other threats to representation, academic freedom, and free speech in legal education. The article also highlights the intersection of  Standard  303(c) and Standard 303(b)(3), which addresses professional identity formation; discusses opportunities to adapt current curriculum and teaching and create new curricular responses to meet the new accreditation standards and interpretations; and explores ways to resist increasing limitations and find a supportive academic community to sustain hope and resilience.

Is Now A(Nother) Teachable Moment Honoring The Memory Of Dr. William S. Spriggs, Francine J. Lipman

Scholarly Works

No abstract provided.

Religious Accommodations In The Dobbs Era, Ann C. Mcginley

Scholarly Works

Given the deep political divide in the U.S. and the emotional response to the abortion issue, workplaces may become hostile environments that harm workers based on their pro- or anti-abortion views or their out-of-work activism. Besides hostile environments, some workers may suffer workplace discipline based on their speech at work or refusals to engage in certain job requirements. Disciplining employees for engaging in workplace speech or refusal to perform parts of their jobs may violate workers’ rights under Title VII of the Civil Rights Act of 1964, which requires that employers grant religious accommodations in the workplace if doing so …

Taxing Undocumented Immigrants Redux, Francine J. Lipman

Scholarly Works

No abstract provided.

Nextgen Licensure & Accreditation, Nachman Gutowski

Scholarly Works

No abstract provided.

From Briefs To Bytes: How Generative Ai Is Transforming Legal Writing And Practice, Joseph Regalia

Scholarly Works

ChatGPT is having a moment in the legal field. And for good reason: Generative artificial intelligence (“AI”) was already disrupting the practice of law before OpenAI’s new chatbot came on the scene. But ChatGPT marks a new era. The brain behind OpenAI’s latest AI contains up to a trillion artificial neurons and was trained on hundreds of billions of pieces of text gathered on the web. All that data makes for the smartest AI ever.

But what’s more important is that all that computational muscle is aimed at things lawyers do every day: (1) Understanding complex concepts, (2) analyzing convoluted …

Style, Substance, And Process: An Elegant Trio, Justin Iverson

Scholarly Works

No abstract provided.

Dicta Mines, Pretext, And Excessive Force: Toward Criminal Procedure Futurism, Frank Rudy Cooper

Scholarly Works

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and Brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion.

This Essay’s new insight is that Robinson contains what it calls a “dicta mine.” A dicta mine is (1) an unnecessary statement that (2) a Court silently recharacterizes as having already resolved an issue, (3) exploding it into a significant doctrine. The Robinson dicta mine …

Fighting Institutional Betrayal: Gender Pay Equity Litigation Against University Employers, Nantiya Ruan

Scholarly Works

Universities are workplaces replete with observed gender pay gaps despite the legal protections in place to mitigate against such a reality. This Article analyzes recent university gender pay equity lawsuits to examine their efficacy in four types of litigation: (1) Class and Collection Action; (2) Government Action; (3) Union Action; and (4) Individual Action. From these case studies of different types of litigation, we learn several important lessons about prosecuting equal pay laws and how to best protect against unequal pay.

First, the Article sets forth the gender pay equity landscape, including the national pay gap picture, the legal framework …

Training Law Students To Model Civility When Social Media Makes Civility Harder To Maintain, Nancy B. Rapoport

Scholarly Works

No abstract provided.

Am I My Colleague's Keeper When It Comes To Disclosing Connections?, Nancy B. Rapoport

Scholarly Works

No abstract provided.

Catholic Sexual Abuse In Louisiana, Leslie C. Griffin

Scholarly Works

No abstract provided.

Failing To See What's In Front Of Our Eyes: The Effect Of Cognitive Errors On Corporate Scandals, Nancy B. Rapoport

Scholarly Works

Why do we believe flim-flam artists so readily, especially in the business and commercial realm? This Article explores four reallife versions of “The Emperor’s New Clothes” fable—FTX, WeWork, Theranos, and a former bankruptcy judge’s hidden romance— and asks why people bought into the hype. Where were the warning signs, and how might we better spot those signs in the future?

Introduction (To Symposium On The Role Of Bankruptcy In The U.S. Legal System), Nancy B. Rapoport

Scholarly Works

No abstract provided.

A Life In Service: Interview With The Hon. Christopher M. Klein, Nancy B. Rapoport

Scholarly Works

Over the course of a few days, Judge Christopher M. Klein agreed to sit down, figuratively speaking, with Professor Nancy Rapoport and answer a few questions about how he approaches his job as a bankruptcy judge.

By way of background, Judge Klein was appointed to the bench in 1998 as a United States Bankruptcy Judge for the Eastern District of California. He was a member of the Bankruptcy Appellate Panel of the Ninth Circuit from 1998 through August 2008, serving as Chief Judge from 2007 to 2008. Prior to 1988, after service in the Marine Corps as an artillery officer …

Who Bears The Burden When Prison Guards Rape?, Meredith B. Esser

Scholarly Works

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons ("BOP"). Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution ("FCI") Dublin, also known as the "rape club," resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years. In response to these patterns of misconduct, the Federal Sentencing Commission's new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early …

Extraordinary Punishment: Conditions Of Confinement And Compassionate Release, Meredith B. Esser

Scholarly Works

People experience severe forms of harm while incarcerated, including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment the most common vehicle through which people seek to redress these harms presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment's "deliberate indifference" standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately …

A Rpl In Time: A Brown Buffalo's Observations On The Ongoing Struggle Of Civic And Racial Nationalism In Higher Education - Circa 2023, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Technology Competence As A Compass For Helping To Close The Justice Gap, Drew Simshaw

Scholarly Works

No abstract provided.

Capital Gains Realizations, Daniel Schaffa

Law Faculty Publications

If there are important nondeductible costs to long-term investing, then higher capital gains tax rates may encourage or discourage investors from realizing accumulated gains. This ambiguity suggests that the sizeable observed effects of capital gains taxes on realizations may partly reflect factors other than the time value of money, such as investor anticipations of future tax rate changes.

Whiteness As Contract In The Racial Superstate, Marissa Jackson Sow

Law Faculty Publications

Despite the United Nations’ (UN) ongoing commemoration of the International Decade for People of African Descent and direct calls from UN member states for the body to confront systemic racism in the United States, the United States has with the support of its allies—successfully blocked measures beyond those which gently encourage mere aspiration to racial equity. Moreover, notwithstanding formal guarantees of equal access to justice and accountability for human rights violations, people of African descent and majority Black member states are systematically constructed out of international policymaking authority and legal protections at the UN—leaving them vulnerable to aggression, exploitation, and …

The Meaning And Ambiguity Of Section Three Of The Fourteenth Amendment, Kurt T. Lash

Law Faculty Publications

The Fourteenth Amendment established the constitutional conditions for the readmission of those states which had attempted to secede from the Union during the American Civil War. Section Three of that amendment, when enforced under the powers granted by Section Five, prevented the leaders of the recent rebellion from returning to Congress, holding any state level office, or receiving any appointment by Democrat President Andrew Johnson, absent congressional permission. Its focus, in other words, was on rebellious disruption of state level decisionmaking and the potentially disruptive appointments by President Johnson. Whether Section Three accomplishes anything more remains unclear as a matter …

Nationality, Chiara Giorgetti

Law Faculty Publications

Nationality provides the foundation for the protection of a person, be it natural or corporate, under international law. As such, it is an essential and also a complex concept. It is essential because it provides the crucial link between the State and physical or juridical persons that ties the substantive principles of international investment law (IIL) to those individuals who can benefit from them, and thus also grants them access to their rights and remedies. It is also a complex concept because it is both a domestic and an international concept and not neatly regulated. International law recognizes the right …

Progress And The Taking Of Indigenous Land, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The taking of Indigenous land in furtherance of other societal goals is so ubiquitous and so fundamental to the American project that sometimes acts of dispossession are not even recognized as such. This Article argues that the generally accepted understanding of Hawaii Housing Authority v. Midkiff, a key case of the American takings law canon, is wrong because it overlooks Native Hawaiian claims to the land taken. Hawai‘i’s Land Reform Act allowed tenants a right to purchase land over the objections of the owner of the underlying property and in Midkiff the U.S. Supreme Court said that states had the …

Digital Bank Holidays, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be responsive to. We may be expecting too much of deposit insurance, and so it is worth considering other tools that might be useful in responding to future bank runs and broader banking panics. One such tool is the “bank holiday,” last deployed in the United …

Content Moderation On End-To-End Encrypted Systems: A Legal Analysis, Charles Duan, James Grimmelmann

Scholarly Articles in Law Reviews & Journals

Online messaging platforms like Signal and Google’s Messages increasingly use end-to-end encryption (E2EE), in which messages are encrypted on the sender’s device and decrypted on the recipient’s, so that no one else—not even the platform itself—can read them. Although E2EE protects privacy and advances human rights, the law enforcement community and others have criticized its growing use. In their view, E2EE prevents platforms and government authorities from responding to abuses and criminal activity, including child exploitation, malware, scams, and disinformation. At times, they have argued that E2EE is inherently incompatible with effective content moderation.

Computer science researchers have responded to …

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

In Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith (“Warhol”), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright. This Essay argues that these arguments were instead grounded in a form of ““prospect theory” of copyright scope that would give …

Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.

To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …

Developments At The United Nations International Law Commission On Sea-Level Rise, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

Sea-level rise is a pressing global challenge that could generate catastrophic consequences for humankind. The implications for States and people all over the world are grave, making rising sea-levels a matter of utmost urgency. This paper will examine some of the challenges presented by the phenomenon of sea-level rise in relation to international law with a focus on the analysis undertaken by the Study Group on Sea-Level Rise (“Study Group”) of the United Nations International Law Commission (“ILC”).