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LAW (819 journals)                  1 2 3 4 5 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 25)
Acta Juridica     Full-text available via subscription   (Followers: 7)
Acta Politica     Hybrid Journal   (Followers: 15)
Acta Universitatis Danubius. Juridica     Open Access   (Followers: 1)
Actualidad Jurídica Ambiental     Open Access   (Followers: 2)
Adam Mickiewicz University Law Review     Open Access  
Adelaide Law Review     Full-text available via subscription   (Followers: 23)
Administrative Law Review     Open Access   (Followers: 44)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 6)
African Journal of Legal Studies     Hybrid Journal   (Followers: 9)
African Journal on Conflict Resolution     Open Access   (Followers: 20)
Afrilex     Open Access   (Followers: 5)
Ahkam : Jurnal Hukum Islam     Open Access  
Ahkam : Jurnal Ilmu Syariah     Open Access  
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Al 'Adalah : Jurnal Hukum Islam     Open Access  
Al-Ahkam     Open Access   (Followers: 1)
Alaska Law Review     Open Access   (Followers: 8)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 14)
Alternative Law Journal     Hybrid Journal   (Followers: 8)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 5)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 57)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 19)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 11)
American Journal of Legal History     Full-text available via subscription   (Followers: 8)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 11)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 6)
Amsterdam Law Forum     Open Access   (Followers: 8)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access   (Followers: 1)
Annales de droit     Open Access  
Annales de la Faculté de Droit d’Istanbul     Open Access  
Annals of the Faculty of Law in Belgrade - Belgrade Law Review     Open Access  
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 3)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 14)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 5)
Arizona State Law Journal     Free   (Followers: 3)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 3)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 11)
ASAS : Jurnal Hukum dan Ekonomi Islam     Open Access   (Followers: 1)
Asia-Pacific Journal of Ocean Law and Policy     Hybrid Journal  
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Law and Society     Hybrid Journal   (Followers: 7)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 4)
Asian Pacific American Law Journal     Open Access   (Followers: 3)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 7)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 9)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 12)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 22)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 15)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access   (Followers: 2)
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 6)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 6)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 28)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 13)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Boletín de la Asociación Internacional de Derecho Cooperativo     Open Access  
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 7)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 11)
Boston College Law Review     Open Access   (Followers: 16)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access   (Followers: 1)
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 7)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 4)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
Business and Human Rights Journal     Full-text available via subscription   (Followers: 3)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos de Informação Jurídica     Open Access  
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cadernos Ibero-Americanos de Direito Sanitário     Open Access  
Cahiers Droit, Sciences & Technologies     Open Access  
California Law Review     Open Access   (Followers: 20)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 179)
Campbell Law Review     Open Access   (Followers: 4)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Canadian Journal of Law & Jurisprudence     Full-text available via subscription   (Followers: 11)
Canadian Journal of Law and Society     Hybrid Journal   (Followers: 20)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 9)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 18)
China-EU Law Journal     Hybrid Journal   (Followers: 6)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 4)
Chinese Law & Government     Full-text available via subscription   (Followers: 9)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 11)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 16)
Columbia Law Review (Sidebar)     Open Access   (Followers: 20)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 39)
Comparative Legal History     Full-text available via subscription   (Followers: 7)
Comparative Legilinguistics     Open Access  
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 42)
Conflict Trends     Full-text available via subscription   (Followers: 13)
Cornell Law Review     Open Access   (Followers: 12)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 6)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 29)
Danube     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 15)
Debater a Europa     Open Access  
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 6)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 3)
DePaul Law Review     Open Access   (Followers: 3)
Der Staat     Full-text available via subscription   (Followers: 14)
Derecho Animal. Forum of Animal Law Studies     Open Access   (Followers: 1)
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     Open Access  
Deusto Journal of Human Rights     Open Access  
Dicle Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Die Verwaltung     Full-text available via subscription   (Followers: 10)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Diké : Revista Jurídica     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Direito e Liberdade     Open Access  
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Doxa : Cuadernos de Filosofía del Derecho     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 5)
Duke Forum for Law & Social Change     Open Access   (Followers: 5)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 16)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 2)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Economics and Law     Open Access   (Followers: 1)
Edinburgh Law Review     Hybrid Journal   (Followers: 19)
Education and the Law     Hybrid Journal   (Followers: 13)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 25)
Energy Law Journal     Full-text available via subscription   (Followers: 5)
Environmental Justice     Hybrid Journal   (Followers: 9)
Environmental Law Review     Full-text available via subscription   (Followers: 23)
Environmental Policy and Law     Hybrid Journal   (Followers: 13)
ERA-Forum     Hybrid Journal   (Followers: 5)
Erasmus Law Review     Open Access  
Erciyes Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 3)
Ethnopolitics     Hybrid Journal   (Followers: 3)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
EU Agrarian Law     Open Access   (Followers: 4)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 13)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 9)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 9)
European Journal of Law and Technology     Open Access   (Followers: 18)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 6)
European Law Journal     Hybrid Journal   (Followers: 168)
European Public Law     Full-text available via subscription   (Followers: 38)
European Review of Contract Law     Hybrid Journal   (Followers: 25)
European Review of Private Law     Full-text available via subscription   (Followers: 33)

        1 2 3 4 5 | Last

Journal Cover
California Law Review
Journal Prestige (SJR): 1.725
Citation Impact (citeScore): 1
Number of Followers: 20  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0008-1221
Published by U of California, Berkeley Homepage  [4 journals]
  • Are Women’s Spaces Transgender Spaces' Single-Sex Domestic Violence
           Shelters, Transgender Inclusion, and the Equal Protection Clause

    • Authors: Rishita Apsani
      Abstract: Transgender survivors of intimate partner violence (IPV) face unique struggles in finding safe and inclusive housing as they seek reprieve from violence. Domestic violence shelters are often marked “women-only” with the goal of creating spaces for female empowerment, wherein women learn feminist principles of liberation and find a “sisterhood” of support by forging healthy female relationships. However, as a result, shelters frequently deny transgender women access because staff perceive them to be a threat to survivor comfort and to be disruptive to shelters’ female-empowerment model. Consequently, though transgender women face similar gender-based oppression and a relatively higher risk of violence as compared to cisgender women, shelters commonly deny transgender women equal protection. This Note conceptualizes how a Fourteenth Amendment equal protection challenge by transgender litigants to women-only shelters might proceed in federal courts. By situating transgender identity within the Supreme Court’s broader equal protection jurisprudence, it outlines three ways that the Court could analyze a transgender equal protection challenge: as an issue of first impression, as a sex-based discrimination claim, or as a sexual orientation claim.
      PubDate: Fri, 09 Nov 2018 14:16:09 PST
       
  • All Disputes Must Be Brought Here: Atlantic Marine and the Future of
           Multidistrict Litigation

    • Authors: Jordan F. Bock
      Abstract: Multidistrict litigation (“MDL”) is an immensely powerful tool. In an MDL, cases that share a common question of fact are consolidated in a single district for pretrial proceedings. MDLs abide by the general principle that governs all transfers within the federal system: because transfer is no more than a “housekeeping measure,” an action retains the choice-of-law rules of the state in which it was filed. If a case filed in California is transferred to an MDL pending in Iowa, the transferee court in Iowa applies California’s choice-of-law rules. As a result, the cases maintain their identities through the retention of their individual home state’s choice-of-law rules. It is thus a critical feature of MDLs—which have far fewer procedural protections than class actions—that transfer to an MDL does not change the applicable law for any individual action. In non-aggregate litigation, this general transfer rule no longer applies, however, when a case is transferred pursuant to a forum-selection clause. Under the Supreme Court’s 2013 decision in Atlantic Marine Construction Co. v. U.S. District Court, the transferee court applies its own choice-of-law rules instead. Thus, if a case filed in California is transferred to Iowa in accordance with a forum-selection clause, the transferee court in Iowa applies Iowa’s choice-of-law rules. Although Atlantic Marine involved a non-aggregate proceeding, courts have begun to consider whether this principle should control choice of law in complex litigation governed by a forum-selection clause. This Note argues that it should not. To begin, extending Atlantic Marine to the MDL context might allow the fact of consolidation to change the outcome in a case. Doing so would also expand due process concerns already inherent in aggregate proceedings, and MDL is not an appropriate forum in which to allow parties discretion to craft their own rules of dispute resolution. Accordingly, to preserve the integrity of the MDL process, MDL courts should consistently apply the choice-of-law rules of the transferor court, even when an action is governed by a valid forum-selection clause.
      PubDate: Fri, 09 Nov 2018 14:16:02 PST
       
  • Redefining the Legality of Undocumented Work

    • Authors: Jennifer J. Lee
      Abstract: Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft, dangerous working conditions, or human trafficking. Given the current climate, this Essay explores how states and localities can resist the federal prohibition by legalizing undocumented work. We live in times of resistance, with “sanctuary cities” that refuse to cooperate with federal immigration enforcement. Seizing on this moment, state and local resistance can offer more immediate accountability for addressing the plight of undocumented workers while disrupting the ways in which the federal immigration framework defines the illegality of undocumented work. To start, this Essay reviews how the incongruence between the lived experiences of undocumented workers and the federal immigration framework creates an underclass of workers. Next, it develops a typology of state and local resistance measures that recognize, protect, or promote undocumented work and considers whether these measures can succeed given concerns about federalism and governmental retaliation.This Essay concludes by discussing why state and local resistance is worthwhile. Beyond the palpable benefits of addressing exploitation, state and local resistance can help undocumented workers overcome exclusion by increasing their sense of belonging. Community members also benefit from the strengthening of workers’ rights and the contributions to the local economy. At the same time, such resistance changes social norms and provides a powerful critique of the federal prohibition on undocumented work. Ultimately, this Essay is the first to examine how state and local resistance focused on undocumented work can lend itself to building social movements that promote immigrant inclusion by redefining the legality of undocumented work.
      PubDate: Fri, 09 Nov 2018 14:15:56 PST
       
  • Legislating for Litigation: Delegation, Public Policy, and Democracy

    • Authors: Sean Farhang
      Abstract: When Congress enacts command-and-control regulation, it chooses between implementation through litigation and courts, through bureaucracy, or through a hybrid regime. Since the late 1960s, the frequency with which Congress has relied on civil litigation for frontline enforcement of statutes grew dramatically, and with it grew rates of federal statutory litigation and the role of courts in federal regulatory policy. By the late 1970s, and with increasing intensity over the decades, a critique of these developments emerged that included two core themes. Relative to administrative implementation, direct enforcement through civil litigation (1) weakens democratic control over public policy because litigants and federal judges are harder for the elected branches to control than bureaucracy, and (2) degrades the quality of public policy because the judiciary is a less capable policy-making infrastructure than bureaucracy.This Article argues that Congress’s reliance on frontline enforcement through civil litigation is associated with how specifically it articulates substantive policy in the statute, versus how much policy-making discretion it delegates to implementing agents. When legislative coalitions rely heavily on civil litigation for implementation, they have incentives to focus more attention and effort on developing and articulating policy substance in the statute, and to leverage more mandatory and specific administrative rulemaking power. The institutional attributes of litigation and courts that make them more challenging to supervise and influence during postenactment implementation, and that render them a less capable policy-making apparatus, create these incentives. This theoretical account contradicts existing arguments offered by the relatively few scholars to consider the relationship between the legislative choice of enforcement through civil litigation, and how much policy substance Congress lays down in the statute.This Article deploys original data to investigate this theory and its rivals. The data contain granular information about the policy content of significant federal regulatory legislation passed between 1947 and 2008, and about the level of attention and effort legislators and witnesses in committee hearings focused on it. Empirical analysis demonstrates that Congress focused more than twice as much attention in legislative hearings on parts of regulatory statutes relying heavily on civil litigation for implementation, and elaborated policy in those parts of statutes in about twice as much detail. When relying substantially on civil actions, Congress was also much more likely to delegate administrative rulemaking authority, thereby leveraging more administrative expertise and enlarging congressional capacity to influence substantive elaboration of the statute via agency oversight powers.Ultimately, this Article argues that meaningful assessment of the democratic and public policy consequences of legislative reliance on civil litigation for enforcement must reckon with the fact that—in addition to dislocating some power from bureaucracy to litigants and courts—reliance is associated with a materially enlarged policy-making role for Congress.
      PubDate: Fri, 09 Nov 2018 14:15:49 PST
       
  • Remedial Convergence and Collapse

    • Authors: Leah Litman
      Abstract: This Article describes and interrogates a phenomenon of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this Article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed.
      PubDate: Fri, 09 Nov 2018 14:15:42 PST
       
  • A Theory of Corporate Joint Ventures

    • Authors: Sarath Sanga
      Abstract: In a corporate joint venture, two corporations—often competitors—collaborate on a project. But how can corporations be partners and competitors at the same time' Though it sounds like a contradiction, such collaborations are commonplace. Many of the most familiar products come from corporate joint ventures, from high-technology like solid-state drives for laptops or rocket boosters for NASA’s Discovery program, to everyday items like Star Wars action figures and even Shredded Wheat cereal. Indeed, Meinhard v. Salmon, arguably the most celebrated case in all of business law, arose out of a dispute within a joint venture. Yet unlike more familiar business forms such as corporations or LLCs, neither case law nor statute provides a clear statement of what a joint venture is or even which laws apply. Given this confusion, it is not surprising that the literature has not produced a unified theory of the corporate joint venture: a coherent statement of both what it is as a matter of law and how it functions.This Article offers a theory of the corporate joint venture. It traces the development of joint venture law and practice from its origins in 19th-century American case law to the present. The central claim is that at the heart of joint venture law and practice, there is a singular legal problem: the foundational fiduciary duty that applies to all business forms—the duty of loyalty—is inherently contradictory within the context of a joint venture. The contradiction arises because the law has effectively treated joint ventures as partnerships whose members happen to be corporations. This formulation is contradictory because partnership law requires each corporation to be loyal to the other, while corporate law requires each agent to be loyal only to her own corporation. Thus, joint venture law both requires and prohibits a division of loyalty.The Article first shows how this inherent conflict was a latent motivation behind the path of early case law, as well as how case law subsequently obfuscated the conflict and left a legacy of confusion. It then uses economic theories of business organization and contract law to explain how the joint venture forms we observe today resolve this conflict through a hybrid corporate-contract form. Finally, it demonstrates empirically how the modern contractual solution has engendered a new set of fiduciary problems via networks of joint venture connections across corporations in an industry. The Article concludes by offering policy prescriptions to tackle these problems and clarify the law of joint ventures.
      PubDate: Fri, 09 Nov 2018 14:15:36 PST
       
  • Consumer Protection for Criminal Defendants: Regulating Commercial Bail in
           California

    • Authors: Mel Gonzales
      Abstract: ail bond companies act as gatekeepers to freedom for thousands of people in California every day. Yet despite their ubiquitous role in our criminal justice system, the current framework regulating the commercial bail industry almost exclusively monitors the relationship between bail companies and the state; it fails to mitigate the wide variety of harms that bail agents can and often do inflict on their customers. Existing policies frame defendants simply as criminals, erasing their simultaneous position as consumers soliciting a commercial service. As a consequence, defendant-consumers, often poor individuals of color, and their families, remain vulnerable to an often-predatory commercial bail bond system.This Note proposes a novel way to frame the interaction between a bail bond company and a criminal defendant or arrestee: as that between a merchant and a consumer. As a consequence, this relationship can and should be governed by a framework of consumer protection laws. This framework, properly crafted and enforced, would protect consumers of commercial bail bonds from abuse and generally encourage a well-functioning commercial bail industry.In an effort to encourage a less predatory and more beneficial commercial bail industry, the Note describes an avenue for pursuing claims against abusive bail bond companies and policy changes that could lay the groundwork for systemic improvement. In doing so, the Note argues (1) that commercial bail companies should be regulated by existing consumer protection law; (2) that consumers of these bail services can and should bring suit against bail companies for violations of state and federal consumer protection laws; and (3) that new legislation tailored to the industry is urgently needed to ensure a properly functioning industry free of exploitation and abuse.Part I of the Note summarizes the process of pretrial detention and bail in California, illuminating the context in which consumers of bail services find themselves. Part I also summarizes qualitative research in order to help describe the variety of harms consumers of bail services often endure. Part II surveys existing consumer protection legislation available to consumers seeking relief, focusing primarily on the California Unfair Competition Law, the California Legal Remedies Act, and the California Fair Debt Collection Practices Act. Part II then analyzes their applicability to the commercial bail context. In Part III, the Note addresses the broader legal framework regulating the commercial bail industry, focusing on the areas that existing protections may not be able to reach and describing the possibility of enacting new legislation tailored to these deficiencies.
      PubDate: Thu, 18 Oct 2018 08:16:20 PDT
       
  • The Changemaker Lawyer: Innovating the Legal Profession for Social Change

    • Authors: David Nahmias
      Abstract: As lawyers today confront existential challenges to their profession, from globalization to technological change, they face demands to innovate. In a world of rapid change, individuals must have certain skills to succeed; they must be “changemakers.” Changemakers are individuals who harness innovation to solve social challenges, a notion arising from the global movement of social entrepreneurship that has captured the attention of sectors spanning international development and the business world. This Note argues that through their innovative work, “changemaker lawyers” present a new set of skills and concepts to support a struggling legal profession. They can serve as exemplars and guides for lawyers in an evolving profession, and the principles that undergird their work can provide significant advantages to the profession as a whole. Starting from the proposition that these changemaker lawyers exist, I conducted interviews with ten attorneys whose unconventional work or expertise embodies changemaker lawyering. Drawing on my interviews, I identify three key themes that changemaker lawyers appear to have in common: (1) they seek to overcome long-standing norms in the legal profession; (2) they design novel organizational structures that reflect their values, and (3) they create trans-disciplinary practices that bridge legal fields and sectors. I then suggest challenges that handicap changemaker lawyers. By proposing the idea of changemaker lawyers, this Note seeks to help create a new identity, unite a diverse community of advocates, and trigger a new movement in the legal profession.
      PubDate: Thu, 18 Oct 2018 08:16:14 PDT
       
  • Presidential Obstruction of Justice

    • Authors: Daniel J. Hemel et al.
      Abstract: Federal obstruction of justice statutes bar anyone from interfering with official legal proceedings based on a “corrupt” motive. But what about the president of the United States' The president is vested with “executive power,” which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the president because if they did they would violate the president’s constitutional power. However, we argue that the obstruction of justice statutes are best interpreted to apply to the president, and that the president obstructs justice when his motive for intervening in an investigation is to further personal, pecuniary, or narrowly partisan interests, rather than to advance the public good. A brief tour of presidential scandals indicates that, without anyone noticing it, the law of obstruction of justice has evolved into a major check on presidential power.
      PubDate: Thu, 18 Oct 2018 08:16:08 PDT
       
  • Trademark’s Judicial De-Evolution: Why Courts Get Trademark Cases
           Wrong Repeatedly

    • Authors: Glynn S. Lunney; Jr.
      Abstract: In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating interlocutory review, and deciding cases in an incremental and dynamic fashion. Illuminating this procedural experimentation, this Article contends that courts can address secrecy in national security adjudication in a tailored, pragmatic fashion, rather than deferring to the executive at the threshold. But this account also shows the limits of such strategies: where misapplied, some procedures may fall short of due process, undermine norms of public access and transparency in the courts, reduce pluralism in the adjudication of disputes, or import bias into judicial decision-making. Together, this suggests that courts should adopt these procedures cautiously and with case-specific assessment of their costs and benefits. Panning out from national security litigation, the Article also offers a set of secondary insights for civil procedure more generally: it highlights the role of the executive branch in making procedural law, the costs of certain transsubstantive procedures, and distorted perceptions across the civil–criminal procedure divide.
      PubDate: Thu, 18 Oct 2018 08:16:02 PDT
       
  • Patriotic Philanthropy' Financing the State with Gifts to Government

    • Authors: Margaret H. Lemos et al.
      Abstract: This Article offers a positive and normative account of an important and growing trend: wealthy individuals are increasingly giving their money to the government to encourage the government to fund particular projects that these individuals want the government to pursue. Such gifts—dubbed “patriotic philanthropy” by one prominent donor—raise fundamental questions about the role that private money plays and ought to play in public policy-making. Legal academics have addressed these types of questions in other contexts, such as campaign financing, privatization of government, and private philanthropy. However, patriotic philanthropy, which presents a new and perhaps more effective way for wealthy individuals to influence the government, has generally escaped the attention of the legal literature. We aim to remedy that lacuna with this Article. Although we do not question the enormous good that patriotic philanthropy can do, this Article argues that gifts to government raise significant concerns about democratic process, equality, and state capacity.
      PubDate: Thu, 18 Oct 2018 08:15:56 PDT
       
  • Debunking Pre-Arrest Incident Searches

    • Authors: Joshua Deahl
      Abstract: The “search incident to arrest” exception to the Fourth Amendment’s warrant requirement permits officers to search a suspect upon making an arrest. It is the most commonly invoked justification for unconsented-to searches; indeed, incident searches far exceed searches conducted with a warrant. This seemingly straightforward exception has wilted in recent years as courts have done away with the prerequisite of an arrest, permitting incident searches so long as there is pre-search probable cause to arrest. The result has been to grant authority to search any person engaged in the most minor of offenses—e.g., speeding, littering, jaywalking—even absent an arrest, injecting routine warrantless searches into this most common form of police-citizen encounter.This Article takes aim at pre-arrest incident searches and diagnoses two doctrinal missteps courts make in permitting them. The first is ignoring that Fourth Amendment intrusions must be judged “at their inception,” a maxim that dictates any post-search arrest is irrelevant to the constitutional calculus (except as evidence of some pre-search fact). The second is that they interpret Whren v. United States—in which the Supreme Court held that a seizure supported by probable cause was valid without regard to whether it was pretextual—as an evidentiary bar to considering officer intentions in Fourth Amendment inquiries. That is wrong too: Whren is not an evidentiary bar at all. While officer intentions are irrelevant to certain objective questions (like probable cause), they matter when discerning whether a custodial arrest is under way. Once these two mistakes are corrected, a straightforward rule emerges: incident searches are permitted only if there is a custodial arrest (be it completed or in-progress) at a search’s inception.Correcting the two missteps above has broad implications. Reinvigorating the principle that intrusions must be judged at their inception has reverberations in all manner of Fourth Amendment analyses. Likewise, treating Whren as a broad evidentiary bar to considering officer intentions is a pervasive yet ultimately mistaken approach. This Article offers a course correction on an issue that has deeply divided appellate courts and is likely to soon receive Supreme Court consideration.
      PubDate: Thu, 18 Oct 2018 08:15:50 PDT
       
  • Procedural Experimentation and National Security in the Courts

    • Authors: Shirin Sinnar
      Abstract: In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating interlocutory review, and deciding cases in an incremental and dynamic fashion. Illuminating this procedural experimentation, this Article contends that courts can address secrecy in national security adjudication in a tailored, pragmatic fashion, rather than deferring to the executive at the threshold. But this account also shows the limits of such strategies: where misapplied, some procedures may fall short of due process, undermine norms of public access and transparency in the courts, reduce pluralism in the adjudication of disputes, or import bias into judicial decision-making. Together, this suggests that courts should adopt these procedures cautiously and with case-specific assessment of their costs and benefits. Panning out from national security litigation, the Article also offers a set of secondary insights for civil procedure more generally: it highlights the role of the executive branch in making procedural law, the costs of certain transsubstantive procedures, and distorted perceptions across the civil–criminal procedure divide.
      PubDate: Thu, 18 Oct 2018 08:15:44 PDT
       
  • An Analysis of the Lack of Protection for Intangible Tribal Cultural
           Property in the Digital Age

    • Authors: Chante Westmoreland
      Abstract: This Note analyzes how the current push for digitization of library and museum collections exacerbates the infringement and appropriation of intangible tribal cultural property and how current statutory schemes fail to adequately protect such property. Cultural property includes any sacred traditional knowledge essential to tribal ways of life and is often privileged information. Intangible cultural property is easily likened to intellectual property in import but does not share the same policy rationale. Because intellectual property laws are justified using “incentive-creation” and other utilitarian theories, these laws inadequately protect tribal images, sacred songs, and other types of traditional knowledge. Meanwhile, statutory schemes specific to cultural property focus solely on tangible sacred objects, such as ceremonial and funerary regalia. This leaves items such as photographs, notes, and recordings, which contain culturally sensitive information, exposed to outsiders and ripe for infringement. In order to remedy this harm, Congress should fulfill its fiduciary obligation to tribes by enacting laws that incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.
      PubDate: Fri, 13 Jul 2018 06:25:05 PDT
       
  • Global South Empowerment or Business as Usual: The Challenges Presented by
           the New Development Bank’s and the Asian Infrastructure Investment
           Bank’s Accountability Mechanisms

    • Authors: Sarah I. Mirza
      Abstract: This Note discusses two new multilateral development banks (MDBs), the New Development Bank (NDB) and the Asian Infrastructure Investment Bank (AIIB), which are rising to challenge the hegemony of the World Bank and other Western-led development finance institutions. Supporters have argued that these new banks will be sources of empowerment and reclamation, allowing the Global South to have a more powerful voice in the development projects that affect it most. I argue that this is only possible if the NDB and AIIB install strong accountability mechanisms and safeguard frameworks to relieve vulnerable Global South communities of further burdens and to ensure these communities have adequate systems of redress for their grievances and human rights concerns. I analyze the current landscape of MDB accountability mechanisms and the ongoing race to the bottom in multilateral financial institutions, looking particularly at the World Bank and its Inspection Panel. I also provide recommendations for both banks’ accountability offices based on implementing best practices and increasing community involvement in project consultation and in grievance mechanisms.
      PubDate: Fri, 13 Jul 2018 06:24:59 PDT
       
  • Stays

    • Authors: Portia Pedro
      Abstract: After judges issue final orders and judgments, losing defendants often ask courts to make a determination that may seem to be a mere procedural technicality, but is, instead, a new battleground for injunctive litigation. These judges are deciding whether to grant a stay pending appeal—whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Because litigating and deciding an appeal can take years and because the issues at the heart of much of civil injunctive litigation are extremely time-sensitive, determining whether to grant or deny a stay is a momentous decision. By deciding requests for stays pending appeal, federal judges have decided if Texas could enforce health and safety regulations, or if clinics could provide abortions in the state; if 300,000 registered voters in Wisconsin would be able to vote, or if the state could enforce its duly-enacted provisions to regulate elections and prevent voter fraud; if states could determine requirements for marriage, or if samesex couples could marry; if the President could enforce an Executive Order regarding national security, or if Muslims could enter the country regardless of religion; and, arguably, if the forty-third US President would be Al Gore or George W. Bush.The standard for stay determinations ostensibly includes four factors: (1) the likelihood of success on appeal; (2) the likelihood of irreparable harm pending appeal; (3) the balance of the hardships; and (4) the public interest. However, there is more idiosyncrasy than standard because courts vary so widely regarding what constitutes each prong and the manner in which courts should weigh each prong, if at all. Compounding the absence of a uniform stays standard, courts frequently give no reasoning or opinion for stay determinations. With life changing (and potentially world-changing) issues on the line pending appeal, stays are a nearly law-free zone. The immense consequences of stay determinations, due to lengthy appeals and the time-bound nature of the underlying injunctions or orders, mean that courts need to make an effort to get stay decisions right.The author argues that the purpose of a stay pending appeal is to protect a meaningful opportunity to appeal where guaranteed. The Article suggests different standards for stays, turning on whether review is guaranteed or discretionary. The author also asserts that courts should write reasoned opinions for stay decisions.
      PubDate: Fri, 13 Jul 2018 06:24:52 PDT
       
  • Detaining Families: A Study of Asylum Adjudication in Family Detention

    • Authors: Ingrid Eagly et al.
      Abstract: The United States currently detains more families seeking asylum than any nation in the world, but little is known about how these families fare in the immigration court process. In this Article, we analyze government data from all immigration court cases initiated between 2001 and 2016 to provide the first empirical analysis of asylum adjudication in family detention. We find that families have been detained in remote locations, have faced language barriers in accessing the courts, and, despite valiant pro bono efforts to assist them, have routinely gone to court without legal representation. Only half of the family members who remained detained found counsel, fewer than 2% spoke English, and 93% had their hearings in detention adjudicated remotely over video conference, rather than in a traditional face-to-face courtroom setting.In addition, the evidence we uncover documents the important, and underappreciated, role that immigration courts have played in limiting the overdetention of migrant families by immigration authorities at the border. During the period studied, immigration judges reversed half of the negative credible fear decisions of asylum officers and systematically lowered the bond amount set by detention officers. We also find high compliance rates among family members who were released from detention: family members seeking asylum attended their immigration court hearings in 96% of cases since 2001. Finally, we document significant regional variation in case outcomes among family members who were released from detention, including whether family members obtained attorneys and won their asylum cases. These and other findings are meaningful to current policy debates regarding the role of immigration courts in maintaining due process in asylum proceedings and the appropriate use of detention to manage the migration of families fleeing violence in their home countries.
      PubDate: Fri, 13 Jul 2018 06:24:47 PDT
       
  • Saving Governance-By-Design

    • Authors: Deirdre K. Mulligan et al.
      Abstract: Governing through technology has proven irresistibly seductive. Everything from the Internet backbone to consumer devices employs technological design to regulate behavior purposefully by promoting values such as privacy, security, intellectual property protection, innovation, and freedom of expression. Legal and policy scholarship has discussed individual skirmishes over the political impact of technical choices—from whether intelligence and police agencies can gain access to privately encrypted data to debates over digital rights management. But it has failed to come to terms with the reality that “governance-by-design”—the purposeful effort to use technology to embed values—is becoming a central mode of policymaking, and that our existing regulatory system is fundamentally ill-equipped to prevent that phenomenon from subverting public governance.
      PubDate: Fri, 13 Jul 2018 06:24:42 PDT
       
  • The Rise of Federal Title

    • Authors: Gregory Ablavsky
      Abstract: Why did, and does, the federal government own most of the public domain within the United States' The standard historical answers—that states ceded their lands to the federal government and that the Property Clause confirmed this authority—turn out to be incomplete, masking a neglected process in the 1780s and ‘90s in which legitimate ownership came to derive primarily from the federal government.This transformation, which I call the rise of federal title, involved two intertwined controversies. The first was a federalist struggle over whether the federal government could retain land in former territories admitted as states notwithstanding the promise of equal footing. The second concerned the nature of ownership: as states’ unregulated land grants created endless litigation, claimants turned to the federal government to resolve conflicting rights and to create a land system that offered certain title. Both processes vindicated federal ownership, with the consequence that the federal government enjoyed a monopoly on one of the nation’s most important sources of wealth.This history proves highly relevant. The rise of federal title is under threat, as many western states, and the Republican Party platform, have spun a theory based on erroneous history that argues federal landholding is unconstitutional. Simultaneously, in constructing a principle of equal state sovereignty, the Supreme Court’s recent Shelby County decision relied on equal footing cases that ignored this early history. But the implications transcend immediate doctrinal concerns. For property scholars, this Article posits a greater role for the state and its regulation of property than current accounts emphasize. For those focused on public law, this history suggests a more expansive early federal government and a more modest court role in policing federalism—than most scholarship on the early United States acknowledges.
      PubDate: Fri, 13 Jul 2018 06:24:36 PDT
       
  • Wrong Turn on the Ex Post Facto Clause

    • Authors: Paul D. Reingold et al.
      Abstract: The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause. Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.Parole is an integral part of punishment: it determines how much time people will serve on their sentences. Until the twenty-first century, black-letter law forbade even modest parole changes that were adverse to prisoners. If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only. Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole ex post facto doctrine by 180 degrees. Prisoners can no longer prevail, even when the change in the state parole regime is almost certain to lead to significantly longer sentences.In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause. In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.
      PubDate: Fri, 13 Jul 2018 06:24:29 PDT
       
 
 
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