Law Commons^™

Pass The Salt: Problem-Resolution Lawyering Across The Twenty-First Century Law Curriculum, Kris Franklin, F. Peter Phillips

Pepperdine Dispute Resolution Law Journal

Attorneys work with clients to resolve problems. Legal education can help prepare law graduates to do that work. As an added bonus, doing so would in turn help law students understand and retain the subjects they study. Law professors who teach alternative dispute resolution, lawyering skills, clinics, and sometimes traditional doctrinal courses, have all called for greater inclusion of dispute resolution in the law school curriculum. Some have urged the introduction of specific courses to prepare contemporary law students to work as problem resolvers. This Article builds on these and other calls for reform, but urges a genuine reconceptualization of …

Cardozo Law News Brief: April 5, 2023, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2023

Featured Faculty:

• Jessica Roth
• Young Ran (Christine) Kim
• Barbara Kolsun
• Anthony Sebok

Events:

• The 2023 Cardozo-Columbia Colloquium on Sovereignty, the Rule of Law and Fundamental Rights in an Era of National and International Turmoil
• Catalyzing Change: Ongwen, Sexual and Gender-Based Crimes, and Intersection
• Class of 2023 Commencement

What The Heller Is Going On With The Second Amendment: Are Licensing Requirements Living Up To The Heller Standard?, Josue Barron

Texas A&M Journal of Property Law

The full extent and guarantees of the Second Amendment have yet to be understood in light of modern advances in weaponry. Further, there is little Supreme Court precedent to aid in defining the scope of the Second Amendment. With challenges to restrictions on concealed carrying of firearms in public, the Second Amendment requires much clarification. Federal circuit courts are divided on how to apply the Second Amendment to firearm licensing schemes and differ on the interpretation of the Heller decision. This Note provides guidance on understanding the core protection of the Second Amendment and the presumptions left by the Supreme …

The Marathon Continues: Texas Nil Has Room To Grow, Johnathon Blaine

Texas A&M Journal of Property Law

College athletes are now permitted to profit off their name, image, and likeness. However, while a hodgepodge of different regulations exists state-by-state and Congress continues to drag its feet to pass a federal framework, Texas restricts college athletes from maximizing their name, image, and likeness earning potential. This Comment proposes improvements to Senate Bill 1385 that would allow college athletes in Texas to partner with the same categories of “taboo” products as their respective university and to endorse products from competing brands, provided such endorsement is outside of a university-sponsored event, with an exception allowing unrestricted endorsement of footwear. This …

Pdf Killed The Copier Star: Modernizing The Access To Sources Of Proof Factor In A 28 U.S.C. § 1404(A) Transfer Analysis, Kyle L. Dockendorf

Texas A&M Journal of Property Law

With digital solutions to document storage, non-physical sources of evidence will become increasingly relevant for different types of legal actions. For patent proceedings, where evidence is often electronic, the need for a clearly defined approach to analyzing physical and electronic evidence has appeared within the first private factor of a 28 U.S.C. § 1404(a) transfer analysis. The evidentiary factor evaluating non-witness evidence—the access to sources of proof factor or first private factor—was interpreted by the Fifth Circuit when faced with weighing electronic evidence in favor, or against, potential transfer venues. Fifth Circuit precedent—relied upon in other circuit court opinions and …

Clerical-Collar Crime: How Church Members Deal When Church Leaders Steal Church Property, Preslie B. Grumbles

Texas A&M Journal of Property Law

Christian churches will lose an estimated $59 billion worldwide to embezzlement in 2022. Embezzlement and other white-collar crimes are property theft crimes characterized by the violation of another’s trust. This Comment names white-collar crimes committed exclusively by church leaders or officials “clerical-collar crimes.” Distinguishing clerical-collar crime from white-collar crime gives weight to and promotes future consideration of the unique problems that arise when church leaders and officials commit clerical-collar crime.
Although clerical-collar crime is subject to civil and criminal liability, this Comment focuses solely on victims’ experiences in bringing civil claims against perpetrators of clerical-collar crime in Texas and leaves …

Species Survival Or The “3s Method”? How The Endangered Species Act Disincentivizes Landowner Cooperation And Threatens The Species It Supposedly Saves, William Edward Mahaffy

Texas A&M Journal of Property Law

The Endangered Species Act (ESA) places restrictions on landowners when their property harbors endangered species. Though well-intentioned as a method of promoting species recovery, these restrictions actually have the reverse effect. Instead of accepting ESA regulations, landowners secretly eliminate endangered species from their property in what is colloquially known as “shoot, shovel, and shut up.” Collaboration between landowners and agencies is essential for species preservation. This Article illustrates the collaboration options, some within the limits of the ESA and others requiring its reform. The four options analyzed are (1) landowner peer review of species listing procedures, (2) congressional clarification of …

Expect More From The Everything Store, Ashlyn Mccall

Texas A&M Journal of Property Law

For years, Amazon, a widely known and popular e-commerce enterprise and online marketplace, has provided consumers with a stress-free, simple approach to online shopping. The company offers customers the option to order products online or on an app and have them delivered directly to their door in no time at all. For years, Amazon has allowed third-party vendors access to its site for marketing and selling products to consumers.
In recent years, instances have arisen where defective products sold on Amazon by third-party vendors have led to the injury of consumers. Often, the third-party vendors are suspicious entities who are …

Keep Austin…White? How Equitable Development Can Save Austin, Texas From Its Racist Past And Homogenized Future, Kaylie Hidalgo

Texas A&M Journal of Property Law

More than a century of racist federal, state, and local government policies created inequitable and racially segregated neighborhoods through a practice known as redlining. I-35 in Austin, Texas, represents one of the most iconic and stark segregationist splits in the country, with the Eastside being impoverished and mostly Black while the Westside’s mostly White population thrives. As a result, Austin is the only fastest-growing city in the nation losing people of color. While there have been some private and local efforts in Austin and across the country to increase investment in marginalized and divested communities, most of these approaches are …

Hacking Or Hatching The Skinny Label: How The Federal Circuit’S Decision In Gsk V. Teva Threatens Generics And Induced Infringement, Kayla Mccallum

Texas A&M Journal of Property Law

This Note focuses on the recent precedential decision handed down by the Federal Circuit in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., which impacts “one of the greatest public health inventions of the 21st century”: generic drugs. An invention that rose to prominence when former President Ronald Reagan signed into law the Hatch-Waxman Act (“the Act”), formally known as the Drug Price Competition and Patent Term Restoration Act of 1984. The Act aimed to increase competition between brand-name and generic manufacturers while balancing two seemingly opposing interests: (1) encourage and reward innovation by pioneer drug companies and (2) increase access …

A Rising Tide: An Argument For Requiring Municipal Liability Insurance For Public Utility Services In Arkansas, Christopher Brown

Arkansas Law Notes

Municipalities can contribute to sanitary sewer overflows through negligent maintenance, poor design, intrusion on sewer lines, and failure to replace aging sewer systems. Throughout the United States, an aging wastewater system is currently failing and is expected to degrade further, which contributes to sewage backups into residences. Arkansas is one of two states in the United States that prevents a resident from recovering damages from an overflow due to the negligent design or maintenance of sewage utilities by a municipality via statute. This Comment argues for a “middle ground” solution, whereby Arkansas municipalities should be required to obtain liability insurance …

Aid And Assistance As A “Use Of Force” Under The Jus Ad Bellum, Michael N. Schmitt, W. Casey Biggerstaff

International Law Studies

Although the prohibition of the use of force is a cornerstone of international law, our understanding of what constitutes a “use of force” under Article 2(4) of the UN Charter nonetheless continues to evolve. While the term was traditionally understood to mean armed force, emerging interpretations are expanding our understanding of the prohibition’s breadth. The Charter’s text, travaux préparatoires, and subsequent interpretations and practice by States, reinforced by the persuasive reasoning of the International Court of Justice, all confirm that the notion of force extends to indirect force, which includes military support provided to parties to a conflict. Yet, to …

What Trump's Business Fraud Charges Mean -- A Former Prosecutor Explains The 34 Felony Counts And Obstacles Ahead For Manhattan's Da, Jeffrey Bellin

Popular Media

No abstract provided.

Ballsa Honors Juan Otero ‘94, Raises $50,000 For Martinidez Scholarship, Benjamin N. Cardozo School Of Law

Cardozo News 2023

The Black, Asian & Latino Law Students Association Alumni Group (BALLSA) held their 13th Annual Alumni Dinner on March 30, marking the first time since 2019 that they’ve held the event in person.

Masthead & Table Of Contents, Patrick Babajanian

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Pipeline Coordination: The Importance Of Properly Defining An Arbitral Tribunal’S Authority In Gas Price Review Arbitration, Aikaterini (Katerina) Karamousalidou

Pepperdine Dispute Resolution Law Journal

Unprecedented events in international gas commerce have significantly increased gas pricing disputes. International arbitration, as a neutral and binding process, offers a plethora of advantages to international players of the energy industry who are interested in resolving their disputes in an efficient way. However, gas price review is extremely complex. In particular, a gas price review clause is what delineates an arbitrator’s mandate and hence, arbitrators must be prudent to pay careful attention to act within the boundaries of their authority. Failure to do so may result in the award being set aside. This paper addresses: (1) the determination of …

Shifting Into “Neutral”: Evaluating Mediation As A Peaceful Alternative To The Forceful Resolution Of The 2022 Canada–Freedom Convoy Dispute, Teresa (Tessa) Griego

Pepperdine Dispute Resolution Law Journal

In early 2022, the Canadian government found itself confronted by a group of truck drivers—in what came to be known as the “Freedom Convoy”—protesting government-imposed restrictions related to the COVID-19 pandemic. This article evaluates how mediation could—and should—have been used as an effective means for the government and protestors to resolve their dispute. It begins by defining the government health and safety measures that prompted the protests and describing the ensuing protest movement by the Freedom Convoy. The article then discusses the protest’s implications on commerce and on the communities where it was located. Next, the article describes the unilateral …

The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Calming The Caucasus: Neutralizing Azerbaijan’S Military “Batna” To Restart The Peace Process In Nagorno-Karabakh (Artsakh), Patrick Babajanian

Pepperdine Dispute Resolution Law Journal

The article begins by surveying the historical background of the Artsakh conflict, from its ancient roots to the immediate aftermath of the 2020 war. It then introduces the key issue I identify as obstructing the peace process from resuming, namely Azerbaijan’s calculation that its military BATNA outweighs any value of continued negotiation. Next, the article evaluates two legal tactics the United States could implement in its national capacity to correct this situation, focusing on actions intended to limit Azerbaijan’s military strength by withholding foreign aid and enacting targeted sanctions, with the goal of achieving greater parity between Armenia and Azerbaijan …

Property Says No: Relational (In)Equality, Encampments, And Property Rights, Sarah E. Hamill

Journal of Law and Social Policy

For around two decades, if not longer, Canada has seen a number of cases dealing with tent encampments, typically, but not always, located in public parks. Often these decisions arise out of municipalities seeking interlocutory or interim injunctions against the tent encampments. Property and property rights have a significant role to play in these decisions as the alleged harm to property and property rights tends to be determinative of the matter. In this article I seek to explore why it is that these decisions are showing property rights more respect than the rights of those within tent encampments. I argue, …

Homeless Encampments: A Philosophical Justification, Terry Skolnik

Journal of Law and Social Policy

Homeless encampments have become increasingly common in US and Canadian cities. Their prevalence raises a fundamental question: are encampments justifiable when individuals lack access to housing? This article argues that encampments are only partially justifiable as a response to homelessness. A complete justification implies that individuals can lawfully establish permanent encampments when they lack access to housing. A partial justification, on the other hand, forbids the establishment of permanent encampments, but permits individuals to establish temporary ones in certain circumstances. Encampments are partially justified for four principal reasons. First, they are a response to public and private law’s failure to …

When Should Publicly Owned Land Be Considered Private In Homeless Encampment Cases? A Critique Of Recent Developments In Bc, Stepan Wood

Journal of Law and Social Policy

Two recent decisions of the Chief Justice of the BC Supreme Court, Evans (2016) and Brett (2020), introduced a dangerous new idea into homeless encampment jurisprudence: that the purportedly “private” character of encampment sites determines that defendants’ Charter rights are not engaged, and that government landowners are entitled to interlocutory injunctions evicting homeless encampments from publicly owned land. These decisions distort the established test for engaging section 2(b) of the Charter, collapsing a nuanced spectrum of government-owned property into a formalistic dichotomy in which any state-owned property that is not formally open to the public as of right is “private …

Intersections Between Precarious Housing And Residential Tenancy Law: A Review Of A Complex Exile And Recent Legal Scholarship On Residential Tenancies, Anna Lund

Journal of Law and Social Policy

This review essay challenges siloed thinking about housing precarity by bringing a sociological account of emergency shelters in Ottawa, Canada–Erin Dej’s book A Complex Exile–into conversation with recent scholarship from Canadian academics on residential tenancy law.3 One intuition underlying this essay is that we need to think about these disparate legal regimes as comprising a bigger system of housing law. Bringing these areas of law into conversation with one another allows us to identify common themes and these may inform statutory reform initiatives, changes to practice, and advocacy on related social issues. Promising innovations in one area of housing law …

The Colonialism Of Eviction, Sarah Buhler, Patricia Barkaskas

Journal of Law and Social Policy

Very little scholarship has specifically considered the phenomenon of eviction as a colonial process, or examined the role of the eviction legal system in reproducing colonial structures and relations. Our aim in this article is to address this gap and thereby extend to the eviction legal system context the work of scholars who have theorized the colonialism of the criminal justice, child welfare, and carceral systems. This article begins with an overview of current issues relating to urban Indigenous housing in Canada. The next section introduces Indigenous concepts of home and homelessness, which are distinct from dominant understandings. We then …

‘Somebody’S Street’: Eviction Of Homeless Encampments As A Reflection Of Interlocking Colonial And Class Relations, Jessica Braimoh, Erin Dej, Carrie Sanders

Journal of Law and Social Policy

Homelessness, as a construct, is premised on settler colonial technologies of land ownership and private property. Encampments, as one of the most visible forms of homelessness, compel us to confront how our socio-legal processes undermine human rights and perpetuate inequity and oppression. How municipalities engage in the legal governance of encampments, often through eviction, exclusion, and criminalization, is a result of interlocking colonial and classist political economies. Borrowing from Collins’ “matrix of domination” and Smith’s “ruling relations”, this article examines the management and ultimate eviction of No Place Like Home, a tent encampment in a mid-size city in Western Canada. …

Introduction To The Special Issue On Housing Precarity And Human Rights, Alexandra Flynn, Estair Van Wagner

Journal of Law and Social Policy

This special issue brings together a collection of papers examining the legal dimensions of housing precarity. While we originally imagined a special issue focused on homelessness and human rights, we agree with our contributors that housing precarity sits along a disparate spectrum, with homelessness at one end. People weave in and out of living situations, whether in shelters, apartments, rooming houses, and encampments. Human rights, and their violation, are engaged at all stages of this spectrum. Yet this relationship has been underexamined in Canadian legal scholarship. The pieces in this issue contribute to an important conversation about the intersection of …

Getting Away With Murder: Why U.S. Courts Should Incorporate The Vclt In The Interpretation Of International Tax Treaties, Schroeder, Helen

Santa Clara Journal of International Law

There is a growing trend in the United States for the adoption of the VCLT in analyzing international tax treaties.1 This trend is positive and should be continued. By looking at how the VCLT could have been applied to the tax treaty interpretation in dispute in Xerox Corp. v. U.S., I assert both that it should be seen as a legitimate source of international tax law and that it should continue to be used moving into the future.

Cardozo Aelj Author Interview Series: Cecily D’Amore, Cardozo Law Class Of 2022, Cecily D’Amore

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Cecily D’Amore discusses her Note, #FreeBritney: The Importance of Public Access to the Guardianship System, which was published in Volume 40, Issue 1.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 04, 2023. The original post can be accessed via the Archived Link button above.

Congressional Oversight Of U.S. Government Programs, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed overview of how the U.S. Congress conducts oversight of federal agency programs. Contents include a letter from a member of Congress to an agency head concerning an environmental development in Indiana, information on the foundations of congressional oversight, details on how Congress may require agency reports on various subjects in public laws, an example of a congressionally mandated report by the Department of Defense, documentation of congressional funding of individual federal agencies, examples of congressional committee hearings, congressional committee issuance of oversight and investigative reports which may include dissenting opinions, Congressional Budget Office cost estimates on congressional committee …

Teacher Shortages And The Fundamental Right To Education In California, Chris Yarrell

Pepperdine Law Review

That a qualified teacher workforce functions as the most important factor affecting student learning and achievement is beyond dispute. Yet, the right to education—which is a state obligation codified within all fifty 50 state constitutions—has been vindicated largely within the province of school finance litigation. Indeed, for nearly five decades, education litigants have brought school finance disputes in virtually every state, succeeding in more than half of them. Despite the hard-won victories notched by education litigants over this time, however, courts adjudicating school finance disputes have largely failed to move beyond declaring simple proscriptions on facially unequal school funding regimes. …