California Law Review最新文献_第10页

Procedural Retrenchment and the States 程序性重审与各州

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-24 DOI: 10.15779/Z38QV3C40V

Z. Clopton

{"title":"Procedural Retrenchment and the States","authors":"Z. Clopton","doi":"10.15779/Z38QV3C40V","DOIUrl":"https://doi.org/10.15779/Z38QV3C40V","url":null,"abstract":"Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, arbitration, standing, personal jurisdiction, and international law. While I have much sympathy for many of these normative criticisms, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access, we could read these decisions instead as openings for state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow them. This Article documents state courts departing from Twombly and Iqbal on pleading, the Celotex trilogy on summary judgment, Wal-Mart v. Dukes on class actions, and Supreme Court decisions on standing and international law. Similarly, many of the highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions where class actions could not be certified, where individual claims would be sent to arbitration, where private plaintiffs would lack Article III standing, and where personal jurisdiction could not be secured. In sum, this Article evaluates state-court and state-enforcement responses to the Roberts Court’s procedural decisions, and suggests further interventions by state courts and public enforcers that could offset a regression in federal-court access. At the same time, this analysis also points up serious challenges for those efforts, and it offers reasons to be cautious about the politics of state procedure and enforcement.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"411-480"},"PeriodicalIF":2.4,"publicationDate":"2017-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45322568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s Article III Shortcomings 另类:对联邦仲裁法第三条缺陷的比较批判

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-23 DOI: 10.15779/Z38GH9B835

Matt Stanford

{"title":"Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s Article III Shortcomings","authors":"Matt Stanford","doi":"10.15779/Z38GH9B835","DOIUrl":"https://doi.org/10.15779/Z38GH9B835","url":null,"abstract":"Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive toward the delegation of judicial power to non-Article III tribunals. Meanwhile, the justices responsible for the FAA’s modern metastasis continue to question, quite vociferously, other congressional delegations of judicial power to non-Article III bodies. But those same justices have yet to address the potential Article III shortcomings of the Court’s FAA jurisprudence. Such analytical incoherence is the focus of this Note.Part I describes the historical judicial disposition toward arbitration in the United States both before the FAA’s passage and in the decades following its enactment. Part II gives an overview of the FAA’s statutory framework, including key decisions that have come to shape it. Part III discusses the failures of past challenges to the FAA, namely Seventh Amendment and unconscionability arguments that litigants have used to avoid arbitration. Part IV develops the heart of this Note with a comparative analysis of the Supreme Court’s scrutiny of statutes and international treaties conferring adjudicatory power upon non-Article III bodies relative to the FAA’s currently untested scheme of delegation. Part V then examines one scholar’s attempt to rescue the FAA from constitutional ruin and argues that such attempts are futile given the institutional interest that Article III serves. Part VI concludes.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"929"},"PeriodicalIF":2.4,"publicationDate":"2017-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46240978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Best Lesson: A Tribute to Eleanor Swift 最佳经验:向埃莉诺·斯威夫特致敬

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z38NP1WH94

M. Kline

引用次数: 0

Eleanor Swift as Consummate Colleague 埃莉诺·斯威夫特《完美同事

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z38SF2MB35

A. O'Connell

引用次数: 0

“locked together / in this small hated space”: Recognizing and Addressing Intimate Partner Violence Between Incarcerated Women “锁在一起/在这个讨厌的小空间里”:认识和解决被监禁妇女之间的亲密伴侣暴力

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z388S4JP42

Emma Mclean-Riggs

引用次数: 1

Agencies as Adversaries 作为对手的机构

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z38H12V721

D. Farber, A. O'Connell

{"title":"Agencies as Adversaries","authors":"D. Farber, A. O'Connell","doi":"10.15779/Z38H12V721","DOIUrl":"https://doi.org/10.15779/Z38H12V721","url":null,"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, such as the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernandino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Hillary Clinton’s emails, and the sharp conflict between the Republican and Democratic members of the Federal Communications Commission on net neutrality. This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflict 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 also 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 long-standing 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 when agencies disagree in the administrative record, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1375-1470"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67479220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 17

Gerken’s Federalism 3.0: Better or Worse Than It Sounds? 格肯的联邦制3.0:比听起来更好还是更糟?

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z38513TW0P

R. Cooter

引用次数: 0

An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age 数字时代部落非物质文化财产保护缺失分析

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.2139/SSRN.3053295

C. Westmoreland

{"title":"An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age","authors":"C. Westmoreland","doi":"10.2139/SSRN.3053295","DOIUrl":"https://doi.org/10.2139/SSRN.3053295","url":null,"abstract":"This Note analyzes how current statutory schemes omit protection of intangible Tribal cultural property, and how the current push for digitization of library and museum collections exacerbates infringement and appropriation. Cultural property includes any sacred traditional knowledge essential to tribal way of life, and is often privileged information. Thus, intangible cultural property is easily likened to intellectual property in import, but dos 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 would incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"959"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68518050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

The Multiracial Option: A Step in the White Direction 多种族选择:向白人方向迈进一步

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z38H98ZD1S

A. Phillips

引用次数: 2

Foxes at the Henhouse: Occupational Licensing Boards Up Close 鸡舍里的狐狸:近距离的职业许可委员会

IF 2.4 2区社会学

California Law Review Pub Date : 2017-01-01 DOI: 10.15779/Z38CJ87K75

R. Allensworth

引用次数: 6