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LAW (774 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 23)
Acta Juridica     Full-text available via subscription   (Followers: 7)
Acta Politica     Hybrid Journal   (Followers: 14)
Acta Universitatis Danubius. Juridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 1)
Adelaide Law Review     Full-text available via subscription   (Followers: 20)
Administrative Law Review     Open Access   (Followers: 42)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 6)
African Journal of Legal Studies     Hybrid Journal   (Followers: 8)
African Journal on Conflict Resolution     Open Access   (Followers: 19)
Afrilex     Open Access   (Followers: 5)
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: 5)
Alberta Law Review     Full-text available via subscription   (Followers: 13)
Alternative Law Journal     Hybrid Journal   (Followers: 8)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 4)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 56)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 18)
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: 10)
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)
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: 3)
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: 2)
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  
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: 5)
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: 8)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 11)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 20)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 14)
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: 24)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 5)
Berkeley Technology Law Journal     Free   (Followers: 12)
Bioethics Research Notes     Full-text available via subscription   (Followers: 13)
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 et Technologies     Open Access  
California Law Review     Open Access   (Followers: 19)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 164)
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: 10)
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)
China : An International Journal     Full-text available via subscription   (Followers: 19)
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: 8)
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: 9)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 15)
Columbia Law Review (Sidebar)     Open Access   (Followers: 17)
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: 38)
Comparative Legal History     Full-text available via subscription   (Followers: 7)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 29)
Conflict Trends     Full-text available via subscription   (Followers: 12)
Cornell Law Review     Open Access   (Followers: 11)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 5)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 27)
Danube : The Journal of European Association Comenius - EACO     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  
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     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  
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: 15)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 25)
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)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 19)
Education and the Law     Hybrid Journal   (Followers: 12)
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: 10)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
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: 7)
European Journal of Law and Technology     Open Access   (Followers: 16)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 5)
European Law Journal     Hybrid Journal   (Followers: 164)
European Public Law     Full-text available via subscription   (Followers: 36)
European Review of Contract Law     Hybrid Journal   (Followers: 24)
European Review of Private Law     Full-text available via subscription   (Followers: 32)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 5)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 12)
Faulkner Law Review     Full-text available via subscription   (Followers: 1)
Federal Communication Law Journal     Full-text available via subscription   (Followers: 2)
Federal Law Review     Full-text available via subscription   (Followers: 21)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 14)
feminists@law     Open Access   (Followers: 4)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  

        1 2 3 4 | Last

Journal Cover
California Law Review
Journal Prestige (SJR): 1.725
Citation Impact (citeScore): 1
Number of Followers: 19  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0008-1221
Published by U of California, Berkeley Homepage  [4 journals]
  • The Aérospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes and
           What Foreign States Can Do About It

    • Authors: M.J. Hoda
      Abstract: “Blocking statutes” are foreign laws that prohibit the transfer of information to the United States for purposes of litigation. Though many countries have adopted blocking statutes in recent decades, these statutes have met an ignoble fate in the U.S. courts. Today, U.S. judges routinely order foreign litigants to produce discovery in violation of blocking statutes, thereby subjecting them to a Hobson’s choice: flout a U.S. court order and face sanctions, or violate foreign law and risk civil and criminal penalties. In the past decade, U.S. court-ordered blocking-statute violations have increased by 2,500 percent.This Note presents an empirical analysis of the blocking-statute conflict and provides fresh guidance for foreign states. My study of fifty-six relevant cases reveals that, in determining whether to order litigants to violate blocking statutes, U.S. courts often consider whether foreign states actively enforce them. In at least twenty-three opinions, U.S. courts have found that, because the blocking statute lacked an “enforcement history,” the prospect of prosecution for violating the relevant statute was “slight and speculative.” In all twenty-three opinions, the courts went on to order violations of foreign law. By contrast, in the three opinions where courts found that foreign states actively enforced blocking statutes, courts refused to order their violation.U.S. courts have been sending a message: blocking statutes will not receive deference unless foreign states enforce them. Foreign states could respond by signaling renewed interest in their blocking statutes and penalizing parties that violate those statutes in response to U.S. court orders. If past decisions are any guide, just a few highly publicized prosecutions would have an appreciable effect on U.S. judges’ reasoning. Blocking statutes might thereby be transformed, in short order, from “paper tigers” to blockbusters.
      PubDate: Thu, 19 Apr 2018 20:12:09 PDT
       
  • “Nothing Less Than the Dignity of Man”: Women Prisoners, Reproductive
           Health, and Unequal Access to Justice Under the Eighth Amendment

    • Authors: Estalyn Marquis
      Abstract: Much of the literature on women prisoners’ inadequate access to healthcare has focused on the relative rarity of women in prison before the age of mass incarceration. This may explain why prisons initially were poorly equipped to provide healthcare to women, but the gendered nature of Eighth Amendment jurisprudence has allowed prisons to remain so. This Note argues the Supreme Court’s standard for prisoners’ claims of inadequate medical care under the Eighth Amendment denies women equal access to justice in the wake of inadequate reproductive healthcare. By implicitly requiring that women prisoners compare their medical needs to those of men, the current standard for evaluating prisoners’ claims of inadequate medical care, though gender-neutral on its face, creates barriers for women that do not exist for men. In the context of reproductive healthcare, this requirement presents an often-insurmountable obstacle for women prisoners seeking justice under the Eighth Amendment.
      PubDate: Thu, 19 Apr 2018 20:12:07 PDT
       
  • The Attorneys Are Bound and The Witnesses Are Gagged: State Limits on
           Post-Conviction Investigation in Criminal Cases

    • Authors: Kathryn E. Miller
      Abstract: This Article is the first to take a comprehensive look at the ways in which State actors restrict post-conviction investigations in criminal cases, especially capital cases. By examining these restrictions in the context of interviews with jurors, victims, and State witnesses, this Article reveals that they harm criminal defendants and fail to achieve stated policy goals. The Article then examines why traditional legal arguments against these restrictions have failed, and ultimately makes the case for a constitutional right to investigate state post-conviction proceedings, grounded in the fundamental fairness prong of the Due Process Clause.
      PubDate: Thu, 19 Apr 2018 20:12:04 PDT
       
  • Favoring the Press

    • Authors: Sonja R. West
      Abstract: In the 2010 case Citizens United v. Federal Election Commission, the US Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to spend unlimited amounts of money independently in political campaigns. The Court rested its five-to-four decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction—the treatment of news media corporations. The Court began by asserting that allowing regulation of corporate speakers but not of non-corporate speakers would permit the government to limit the speech of media corporations—a thought that the majority called “dangerous, and unacceptable.” The campaign finance law in question, however, included an exemption for the news media, thus protecting the rights of the press. But the Court found the media exemption to be problematic because it treated some corporations differently than others. This favoritism of media corporations, in the Court’s view, would also amount to unconstitutional speaker discrimination. To the Citizens United majority, therefore, the news media corporation example settled the question on corporate speech rights. Under this example, a campaign finance law restricting corporate spending that exempted the news media would be unconstitutional speaker-based discrimination, but a law lacking such an exemption would open the door to regulation of the news media.But was the Citizens United Court correct about the media corporation dilemma' Is the government no more able to regulate the expressive activities of Exxon Mobil Corporation than those of the New York Times Company' Must all speakers be treated uniformly whether or not they are members of the press' And does the First Amendment’s Press Clause (and not just the Speech Clause) play a role in this analysis'In this Article, I challenge the claim that the First Amendment prohibits the government from treating the press differently than other speakers. Rather than banning such distinctions, the Press Clause traditionally has supported differential treatment of the press. History, court precedent, and legislative practice, moreover, demonstrate how favoritism of press speakers has been condoned and often encouraged.This debate over the meaning of the Press Clause could have significant ramifications for the future of our free press. A jurisprudential drift of press rights away from protecting core press functions and toward constraining the government’s ability to recognize the unique role press speakers play in our democracy could significantly threaten the vital structural safeguards of the Fourth Estate.
      PubDate: Thu, 19 Apr 2018 20:12:01 PDT
       
  • Is Qualified Immunity Unlawful'

    • Authors: William Baude
      Abstract: The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. Furthermore, even if these things were otherwise, the doctrine of qualified immunity would not be the best response.
      PubDate: Thu, 19 Apr 2018 20:11:58 PDT
       
  • Reclaiming the Constitutional Text from Originalism: The Case of Executive
           Power

    • Authors: Victoria Nourse
      Abstract: There are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power)—but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language—principles that apply to all communication—I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis—a word, a clause, a paragraph—that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone—particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution.
      PubDate: Thu, 19 Apr 2018 20:11:54 PDT
       
  • “locked together / in this small hated space”: Recognizing and
           Addressing Intimate Partner Violence Between Incarcerated Women

    • Authors: Emma Mclean-Riggs
      Abstract: Intimate partner violence between incarcerated women has been largely invisible in legal scholarship and advocacy work. This Note attempts to assess the incidence and quality of intimate partner violence between incarcerated women from the incomplete and occasionally biased available data and then examines potential methods for reducing such violence. Considering several of the legal strategies that address intimate partner violence, this Note concludes that while facilitating women’s escape from their abusive partners and civil protection orders may be effective strategies for intervening in violence between incarcerated women, mandatory reporting structures and no-drop prosecution policies are ill-suited to the prison context.
      PubDate: Wed, 24 Jan 2018 17:50:23 PST
       
  • The Multiracial Option: A Step in the White Direction

    • Authors: Alynia Phillips
      Abstract: It is estimated that within fifty years, the white race will lose its stronghold as the majority racial group in the United States. In recent years, this prediction has induced anxiety in everyone from lay citizens to conservative politicians. But this prediction may not come to fruition if the definition of whiteness expands as needed. Parallel to this mounting racial anxiety runs a social movement aimed at promoting the classification of mixed race individuals as “multiracial.” Though on its face this classification appears harmless, the reliance on “multiracial” indicates an implicit deracialization of mixed race individuals, and a tacit devaluation of minority heritage. This Note argues that based on the history of racial classifications in the United States and existing motivations to maintain the white majority, the push for a multiracial category functions as a means by which mixed race individuals can join the ranks of whiteness. With mixed race individuals comprising the fastest growing population in the United States, their acceptance into the white race could secure the white majority for decades to come
      PubDate: Wed, 24 Jan 2018 17:50:20 PST
       
  • A Right To Rational Juries' How Jury Instructions Create The “Bionic
           Juror” In Criminal Proceedings Involving DNA Match Evidence

    • Authors: Pooja Chaudhuri
      Abstract: This Note explores the intersections of science and the law in trials involving DNA evidence. The DNA match process is a forensic technique used to identify unknown individuals by the characteristics of their DNA. This procedure is extremely useful in criminal cases where the identity of the perpetrator is in question. While use of DNA match evidence in criminal trials is on the rise, jurors are not equipped to understand complex and manipulable DNA probabilities. Specifically, there exist three impediments to juror comprehension. First, match statistics are incredibly difficult to understand unless jurors have a background in mathematics or statistics. Second, jurors are unaware of inherent biases, including the risk of false positive matches in DNA typing. Third, jurors are at a high risk of being carried away by the significance of a match because DNA has been touted as the gold standard of biometric evidence. Nevertheless, while DNA evidence does have drawbacks, prosecutors, defense attorneys, and judges agree that it has improved accuracy in criminal trials.Given these barriers, many scholars have grappled with the issue of how to increase juror comprehension, but few have been able to provide practical solutions. In that respect, this Note aims to bridge the gap between a normative and practical answer to the problem. Normatively, the ideal juror in DNA cases ought to be “bionic,” meaning that they will have ordinary cognitive powers enhanced by the help of electromechanical DNA typing devices. Because DNA trials are unique in their melding of science and law, the bionic juror represents a new, important standard of rationality. As a way to practically create the bionic juror, this Note proposes a set of cautionary DNA jury instructions to ensure that criminal defendants receive fair trials by rational jurors.
      PubDate: Wed, 24 Jan 2018 17:50:17 PST
       
  • American Colonialism and Constitutional Redemption

    • Authors: Seth Davis
      Abstract: Americans are debating what it would take to redeem the Constitution’s promise of a “more Perfect Union” in a time of deep and stark disagreements about the nation’s future. Despite the partisan rancor, most Americans share a faith in the Constitution’s redemptive potential. Constitutional faith is the civic religion that shapes our constitutional law, theory, and politics and binds Americans as one nation, indivisible.This Essay is about something our faith forgets: The promise of a “more Perfect Union” of “We the People” is not redemptive for colonized peoples who did not consent to the Constitution but are subject to American plenary power. This Essay makes three contributions to constitutional law and theory by focusing upon the United States’ colonial relationships with American Indians and Alaska Natives. First, this Essay makes the case that American colonialism poses a fundamental challenge to our constitutional faith. It traces the convergence of American constitutionalism and American colonialism in the conception of government power as a public trust, which is the foundation of federal plenary power over American Indians and Alaska Natives. Second, this Essay argues that the trust conception of constitutional law cannot solve the problem of redeeming American colonialism. Instead, the constitutional trust has reinforced the very power relations and ideology that Indian Nations challenge when they claim a right to national self-determination. Third, this Essay offers a viable alternative for redressing the wrongs of American colonialism by revisiting the problem of redemption from a relational perspective, one that does not focus on the trust that “We the People” place in the Constitution. In comparing trust with contract to develop this relational perspective, this Essay contributes to the emerging literature that reimagines constitutional law by reference to rules and norms from the common law.
      PubDate: Wed, 24 Jan 2018 17:50:14 PST
       
  • Federalism All the Way Up: State Standing and “The New Process
           Federalism”

    • Authors: Jessica Bulman-Pozen
      PubDate: Wed, 24 Jan 2018 17:50:11 PST
       
  • Gerken’s Federalism 3.0: Better or Worse Than It Sounds'

    • Authors: Robert Cooter
      PubDate: Wed, 24 Jan 2018 17:50:08 PST
       
  • Federalism 3.0

    • Authors: Heather K. Gerken
      Abstract: Presented at the Brennan Center Jorde Symposium on October 20, 2016 (University of California, Berkeley) and March 1, 2017 (New York University).
      PubDate: Wed, 24 Jan 2018 17:50:05 PST
       
  • A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile
           Insurance, and Federal Safety Regulation

    • Authors: Mark A. Geistfeld
      Abstract: Driver error currently causes the vast majority of motor vehicle crashes. By eliminating the human driver, autonomous vehicles will prevent thousands of fatalities and serious bodily injuries, which makes a compelling safety case for policies that foster the rapid development of this technology. Major technological advances have occurred over the past decade, but there is widespread concern that the rate of development is hampered by uncertainty about manufacturer liabilities for a crash. Apparent variations in the requirements of state tort law across the country make it difficult for manufacturers to assess their liability exposure in the national market. The patchwork of state laws and the resultant uncertainty have prompted calls for the federal safety regulation of autonomous vehicles.The uncertainty seems to be the inevitable result of trying to predict how tort rules governing old technologies will apply to the new technology of automated driving. As I will attempt to demonstrate, however, well-established tort doctrines widely adopted by most states, if supplemented by two new federal safety regulations, would provide a comprehensive regulatory approach that would largely dissipate the costly legal uncertainty now looming over this emerging technology. The technology itself largely solves the most vexing tort problems for reasons that prior analyses have missed. Autonomous vehicles will transform the individualized behavior of human drivers into a collective, systemized form of driving. In effect, a single driver—the operating system—will guide an entire fleet of these vehicles, determining how each vehicle executes the dynamic driving task. When the fully functioning operating system causes a crash, the vehicle was engaged in systemized driving that should be evaluated through performance data for the fleet, regardless of the particular circumstances of the crash. Aggregate driving data can resolve otherwise difficult tort questions.Most importantly, the manufacturer would necessarily satisfy its tort obligation regarding the reasonably safe programming or design of the operating system if the aggregate, premarket testing data sufficiently show that the fleet of fully functioning autonomous vehicles performs at least twice as safely as conventional vehicles. To avoid liability for the crash of such a vehicle, the manufacturer must also adequately warn consumers about this inherent risk. Once again, the risk involves systemized driving performance, and so aggregate driving data provide the appropriate measure. Based on these data, auto insurers can establish the risk-adjusted annual premium for insuring the vehicle. By disclosing such a premium to consumers, the manufacturer would satisfy its obligation to warn about the inherent risk of crash, eliminating this final source of manufacturer liability for crashes caused by a fully functioning autonomous vehicle.The collective learning of state tort law can then inform federal regulations governing the reasonable safety of automated driving technologies. The foregoing analysis is based on tort rules that have been widely adopted across the country. States that do not follow the majority approach might reach different conclusions. To ensure that manufacturers face uniform obligations across the national market, the National Highway Transit Safety Administration could adopt two federal regulations that clearly fit within its proposed regulatory approach. Each derives from the associated tort obligations concerning adequate premarket testing and disclosure of the inherent risk of crash, respectively. These regulations would largely retain the role of tort law, because regulatory compliance would also satisfy the associated tort obligations in most states, while impliedly preempting these claims in the remaining states. The regulations would promote the federal interest in uniformity in a manner that minimizes the displacement of state tort law, thereby optimally solving the federalism problem.State tort law can then supplement the federal regulations in important instances, yielding a comprehensive regulatory approach. Within this legal framework, a regulatory-compliant autonomous vehicle would subject the manufacturer to tort liability only for crashes caused by malfunctioning physical hardware (strict products liability); malfunctions of the operating system due to either programming error (same) or third-party hacking (strict liability again, with an important caveat); the manufacturer’s failure to adopt a reasonably safe design or to provide adequate warnings for ensuring safe deployment of the vehicle (an ordinary products liability claim); or the manufacturer’s failure to treat consumers and bystanders equally when designing the vehicle and its operating system (an ordinary negligence claim). A manufacturer would also be subject to tort liability for not complying with the federal regulations (negligence per se). The potential liabilities would not be overly uncertain. Autonomous vehicles can be regulated in a manner that ensures reasonable safety without impeding the development of this life-saving technology.
      PubDate: Wed, 24 Jan 2018 17:50:02 PST
       
  • Foxes at the Henhouse: Occupational Licensing Boards Up Close

    • Authors: Rebecca Haw Allensworth
      Abstract: The dark side of occupational licensing—its tendency to raise prices to consumers with dubious effects on service quality, its enormous payout to licensees, and its ability to shut many willing workers out of the workforce—has begun to receive significant attention. But little has been said about the legal institutions that create and administer this web of professional entry and practice rules. State-level licensing boards regulate nearly one-third of American workers, yet, until now, there has been no systematic attempt to understand who serves on these boards and how they operate. This Article undertakes an ambitious and comprehensive study of all 1,790 licensing boards in the U.S. and identifies their statutory membership. The results are clear: nearly all of them are controlled by professionals holding a license issued by the board itself.This self-regulation is disturbing enough if one expects at least some governmental involvement in decisions that are known to redistribute income, block labor entry, and harm consumers. But now the practitioner-dominated licensing board is not just an urgent policy problem, but a legal one. A recent Supreme Court case has placed these boards and their members in the crosshairs of federal antitrust liability, precipitating a legal crisis for the states. This Article identifies the enormous scope of the Court’s opinion in North Carolina State Board of Dental Examiners v. FTC, opines on the meaning of its somewhat cryptic holding, and suggests steps that states can take to reform their boards with an eye to both antitrust immunity and more reasonable occupational regulation.
      PubDate: Wed, 24 Jan 2018 17:49:59 PST
       
  • A Crime at Any Age: Intimate Partner Abuse in Later Life

    • Authors: Taylor Jillian Altman
      Abstract: Intimate partner abuse (IPA) is a problem that affects millions of women across the United States every year. Traditionally, strategies designed to help victims and reduce IPA have tended to focus on women of childbearing age. However, older women who experience abuse at the hands of male partners are often left out of the conversation. Usually grouped with family violence (which may involve abuse by adult children or other caregivers), elder IPA has received short shrift in the social science and legal literature. This Note explores in depth the unique problem of IPA among older women, which is often a continuation of the cycle of abuse begun much earlier in the couples’ lives, and proposes solutions that include restorative justice, elder-ready domestic violence shelters, and expanded protection under California’s Welfare and Institutions Code.
      PubDate: Thu, 16 Nov 2017 14:35:30 PST
       
  • Transborder Data Privacy as Trade

    • Authors: Margaret Byrne Sedgewick
      Abstract: Data flows continuously across national boundaries. The current model of regulation for data privacy, an essential component for safe data flow, relies impractically on jurisdiction-specific rules. This practice impedes the benefits of data, which are increasingly a necessary and integral part of day-to-day life. A look at the history of data privacy reveals that this practice is rooted in an ill-fitting adoption of privacy standards set in the period after World War II. Europe was reeling from the Nazi regime and intent on keeping the government out of the home and personal communication. Analogies between these traditional protected areas and the contemporary transmissions and use of personal data are unsatisfying—and lead to unsatisfying policy. Traditional privacy jurisprudence must be better reconciled with rapidly advancing technology and globalization.This Note proposes reframing transborder data privacy as trade. This step would transition the regulatory model away from a jurisdiction-specific set of rules to an internationally shared set of standards that better reflects the immediate mobility of data in the cloud. The U.S. and European systems, while formally divergent enough to cause these problems, are in fact grounded in common principles that would serve as a base for an international agreement on transborder data privacy. Though political opposition to shared standards may be currently insurmountable, this Note nonetheless concludes that an international trade framework would more effectively harness the benefits and mitigate the risks of transborder data flow.
      PubDate: Thu, 16 Nov 2017 14:35:26 PST
       
  • Aquifers and Democracy: Enforcing Voter Equal Protection to Save
           California’s Imperiled Groundwater and Redeem Local Government

    • Authors: Louise Nelson Dyble
      Abstract: California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies, rather than the public, to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, under SGMA these entities are governed and controlled in ways that violate the one person, one vote requirement of the Equal Protection Clause, and even the rational basis requirement for local government representational structures. By establishing the state’s first comprehensive requirements for monitoring and managing groundwater, SGMA attempts to fill a critical gap in California water regulation, the consequences of which have culminated in a statewide crisis. This Note examines the ways in which SGMA implicates the Fourteenth Amendment, and, specifically, the requirements for proportional representation in local government that Avery v. Midland County and Board of Estimate v. Morris established. It argues that voter accountability and proportional representation in groundwater governance are important to actually achieving the ultimate goal of the legislation: effective management and regulation of imperiled common pool resources in California. It also contributes to solving a bigger problem. Special districts are the most numerous type of local government in the United States, with policy-making and administrative responsibility for vital environmental resources, infrastructure, and services. Enforcement of the one person, one vote requirement for the special districts responsible for California groundwater under SGMA would provide a powerful legal precedent for citizens seeking to promote democracy and equality in local government throughout the United States.
      PubDate: Thu, 16 Nov 2017 14:35:22 PST
       
  • Agencies as Adversaries

    • Authors: Daniel A. Farber et al.
      Abstract: Conflict between agencies and outsiders—whether private stakeholders, state governments, or Congress—is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s administration, there was the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernardino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Secretary Hillary Clinton’s emails, and the sharp division between the Republican and Democratic members of the Federal Communications Commission on net neutrality. President Trump’s administration has begun with intense internal conflict. After President Trump issued his first immigration executive order, fights started—largely between holdover appointees (as well as career bureaucrats) and the new boss. Battles have also erupted among President Trump’s chosen lieutenants in the White House and in the cabinet. While the President has denounced his opponents, he is also fostering conflict by choosing cabinet secretaries with whom he knows he has policy disagreements, placing loyalists in key agency staff positions as monitors, and selecting adversaries for top White House slots.This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflicts and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design, as well as constitutional theory, we aim to explain the creation of such conflict––largely by Congress and the White House but sometimes by the courts––and to evaluate its desirability. We assess the characteristics of conflict against economic, political, and philosophical criteria to suggest lessons for institutional design in the modern administrative state. In contrast to much of the existing literature, we focus on the potentially positive contribution of agency conflict to effective democratic governance.Finally, we use our descriptive, positive, and normative work on agency conflict to contribute to longstanding legal debates and to flag important legal issues that have generated little attention. For instance, we investigate the constitutional limits of congressionally or judicially created conflict within the executive branch, the application of deference doctrines in the face of agency disagreement, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.
      PubDate: Thu, 16 Nov 2017 14:35:18 PST
       
  • Abandoning the Federal Role in Education: The Every Student Succeeds Act

    • Authors: Derek W. Black
      Abstract: In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government lacks the ability to prompt improvements in student achievement and to demand equal resources for low-income students. Thus, the ESSA boldly presumes that states will voluntarily improve educational opportunities for low-income students despite their historical tendency to do the contrary.This Article is the first to offer a comprehensive analysis and critique of the ESSA. It demonstrates that although the ESSA commits to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Broad state discretion opens the door to fifty disparate state systems, none of which ensure equality. Second, the ESSA directly weakens two existing equity standards and ignores a loophole that exempts 80 percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education.Although Congress is unlikely to repeal the ESSA, the Act is set to expire by its own terms in an unusually short time period. Thus, preparations to either reauthorize or alter the Act will start soon. By then, the inequalities that the ESSA permits will be evident. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: (1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; (2) meet the outstanding needs of low-income students; and (3) expand preschool education, which would close achievement gaps and, through cost savings, make state compliance with equity provisions more feasible.
      PubDate: Thu, 16 Nov 2017 14:35:14 PST
       
 
 
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