Pepperdine law review最新文献

{"title":"Democracy and Diversity","authors":"J. Payton","doi":"10.4324/9781351246866","DOIUrl":"https://doi.org/10.4324/9781351246866","url":null,"abstract":"","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"35 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2018-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47377618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts","authors":"Bruce N. Cameron, Blaine Hutchison","doi":"10.2139/SSRN.3216741","DOIUrl":"https://doi.org/10.2139/SSRN.3216741","url":null,"abstract":"In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This paper analyzes Abercrombie, explains how the Court eliminated religious accommodation as a freestanding cause of action, and suggests an altered proof framework for plaintiffs seeking an accommodation. The paper also explores the conflict between employee privacy rights and classic proof requirements for religious sincerity. The lower courts have largely failed to apprehend the change mandated by Abercrombie, with the result that their opinions are in disarray. The paper includes a chart organizing the diverse lower court opinions.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"46 1","pages":"471-510"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47608221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Holding U.S. Corporations Accountable: Toward a Convergence of U.S. International Tax Policy and International Human Rights","authors":"Jacqueline Lainez Flanagan","doi":"10.2139/ssrn.2926700","DOIUrl":"https://doi.org/10.2139/ssrn.2926700","url":null,"abstract":"International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. The article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease taxation while simultaneously shielding corporate parents from responsibility for violations of international law. Moreover, it is largely anticipated that the Trump administration, together with Republican control of both houses of Congress, will amplify the recent trend of Supreme Court jurisprudence and heighten the need for alternative methods to encourage fiscal and social responsibility by corporations. Ultimately, without organized public resistance and calls for improved corporate accountability, the political climate favoring corporations at the expense of individual human rights is likely to expand to unconscionable levels.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2926700","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68435022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Duty and Disobedience: The Conflict of Conscience and Compliance in the Trump Era","authors":"Keith A. Petty","doi":"10.2139/SSRN.2870548","DOIUrl":"https://doi.org/10.2139/SSRN.2870548","url":null,"abstract":"In an era of perpetual war, service members are required to follow orders with significant legal and moral consequences. Several high-profile cases, however, call into question the limits of the soldier’s duty. In 2006, First Lieutenant Ehren Watada refused to deploy to Iraq because of legal and moral objections to the underlying conflict. More recently, Captain Nathan Smith sued President Obama in federal court, claiming the conflict against the Islamic State terrorist organization was not properly authorized by Congress. Since early 2016, then Republican Presidential candidate Donald Trump made multiple proposals to combat terrorism by targeting civilians and committing torture. If confronted with such orders, under what circumstances do service members have a duty to disobey? This article examines the obligations of service members, focusing on Lieutenant Watada, Captain Smith, and others like them who objected to specific armed conflicts on legal and moral grounds. Specifically, this article seeks to answer whether state adherence to the jus ad bellum and jus in bello is condition precedent for soldiers’ obedience to orders. A preliminary examination of these issues reveals that soldiers have a legal obligation to disobey unlawful orders during armed conflict (e.g., targeting civilians, torture), but there is no equivalent legal obligation to disobey orders to deploy in support of a war that is—from the soldier’s perspective — unlawful. The state is also interested in avoiding widespread disobedience. A behavioral studies approach suggests that compliance can best be achieved through internalization of norms, opportunities for constructive dissent, and stricter adherence to the jus ad bellum. This article will appeal to national security practitioners, decision makers, and scholars. The relevance to national security is evident by seeking methods to gain greater compliance from soldiers and more prudent strategic level decisions regarding armed conflict. More broadly, the examination of compliance theory to individual behavior is applicable to multiple disciplines and any large organization. The examination of the soldier’s obedience is particularly timely when the United States is engaged in what some describe as a \"forever war.\"","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"45 1","pages":"55-148"},"PeriodicalIF":0.0,"publicationDate":"2017-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47559354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justice as Fair Division","authors":"Ian C. Bartrum, Kathryn L. Nyman, Peter Otto","doi":"10.2139/SSRN.2947342","DOIUrl":"https://doi.org/10.2139/SSRN.2947342","url":null,"abstract":"We start from the assumption that any realistic reform proposal must not require a constitutional amendment. We then suggest that hyperpoliticization arises out of a feedback loop between appointments and decision-making: Politicized decisions beget politicized appointments, and vice-vernal. We thus propose a change to the Court's decision-making process, which we believe will incentivize useful changes in the appointments process. Our proposal involves an application of what mathematicians and game-theorists call \"fair division theory.\" \u0000To begin, we suggest a new decision-making process in which a three-Justice panel--not the entire Court--would hear and decide each case. Appeal to an en banc sitting owed be available only upon the unanimous vote of the remaining six Justices. The parties themselves would engage in a fair division process to select the decisive panel: (1) Petitioner partitions 3 possible panels, using each Justice once; (2) Respondent eliminates 1 panel, then repartitions the remaining Justices into two new panels; (3) Petitioner chooses one panel. \u0000We offer a mathematical proof that this will result in a panel close to the parties perception of the Court's ideological center relative to their case. We offer reasons to think that this would (1) produce less politicized opinions and more stable doctrine; and (2) discourage outlier appointments, as such Justices would serve on fewer decisive panels. Over time this would lead to a more moderate, centrist Court.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"45 1","pages":"531-545"},"PeriodicalIF":0.0,"publicationDate":"2017-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41346038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hearing the States","authors":"A. Johnstone","doi":"10.2139/SSRN.2945405","DOIUrl":"https://doi.org/10.2139/SSRN.2945405","url":null,"abstract":"The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a bias toward federal power is hard-wired into the modern judicial appointment process. Once on the bench, Justices see an increasingly elite bar of Washington D.C. specialists steeped in federal practice, even when hearing cases concerning state sovereignty. These are problems for the Court, despite its likely sympathy for federalism arguments in years to come. This article suggests one solution: help the Court hear the states. Relatively minor reforms to the Court’s approach in cases impacting state sovereignty could harness the politics of state attorneys general to help the Court hear all states more clearly, facilitate a more principled federalism, and depoliticize the Court itself. States cannot help protect the Court from politicization, however, if their attorneys general fall victim to the same national polarizing forces that threaten the Court. Any reforms to help the Court hear the states better, therefore, must also help the states keep their voices strong and independent.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"45 1","pages":"575-622"},"PeriodicalIF":0.0,"publicationDate":"2017-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44891476","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eight Justices are Enough: A Proposal to Improve the United States Supreme Court","authors":"E. Segall","doi":"10.2139/SSRN.2900555","DOIUrl":"https://doi.org/10.2139/SSRN.2900555","url":null,"abstract":"Ever since Justice Scalia passed away last February, the Supreme Court has been composed of eight Justices equally divided among Republicans and Democrats. This paper argues that Congress should permanently set the number of Justices at eight and require that at all times there are four Republicans and four Democrats on the Court. A permanent, evenly-divided Court will work harder to reach narrower decisions in its hardest cases and will be less able to impose its ideological agendas on the American people while at the same still have the tools necessary to maintain the supremacy and uniformity of federal law. To the extent the Justices do deadlock on a case, the issues will be resolved by court of appeals judges who are much more politically, educationally, and geographically diverse than the Justices.This proposal to limit the Court's power, unlike abolishing term limits or requiring a super-majority of Justices to strike down laws, does not require a constitutional amendment (the original number of Justices was six). Although the President could nominate any person he desires, even if it disrupts the Court's balance, the Senate could refuse to confirm any nominee who would lead to one of the political parties having a majority of Justices on the Court. This paper spells out the details of this proposal and explains both how it could be easily implemented and why it benefits both political parties, the Congress, the President, and the American people.Preexisting intellectual commitments or interpretative theories have not and cannot limit the Court's power. It is well past time to experiment with structural changes that will make it more difficult for the Justices to strike down state and federal laws based on ideological disagreement instead of a demonstration of clear inconsistency with the Constitution.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"45 1","pages":"547-574"},"PeriodicalIF":0.0,"publicationDate":"2017-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2900555","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44969589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Victimhood and Agency: How Taking Charge Takes its Toll","authors":"Pam Mueller","doi":"10.2139/SSRN.2804124","DOIUrl":"https://doi.org/10.2139/SSRN.2804124","url":null,"abstract":"This project addresses an unexplored tension in the civil justice system with regard to victims. The civil justice process generally depends on victims taking action – but “active” victims may face unanticipated consequences. I find that victims who play an active role in the justice process are blamed more, and recover less in damages. These findings are mediated by perceptions of victim agency.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"44 1","pages":"691-730"},"PeriodicalIF":0.0,"publicationDate":"2016-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2804124","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68338730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gateway-Schmateway: An Exchange between George Bermann and Alan Rau","authors":"G. Bermann, Alan Scott Rau","doi":"10.15781/T2J09W55V","DOIUrl":"https://doi.org/10.15781/T2J09W55V","url":null,"abstract":"What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and internatonal arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium on International Arbitration and the Courts.The issue begins with a transcript of a moderated exchange between Professor Bermann, the Reporter for the American Law Institute’s (ALI) ongoing Restatement (Third) of the U.S. Law of International Arbitration project, and Professor Rau, an ALI-appointed Advisor on the project. Professor Coe poses questions to both scholars that focus on selected issues that are characteristic of matters discussed during the ALI drafting and consultative process, especially so-called “gateway” matters like competence-competence. This exchange revealed several questions on which Professors Bermann and Rau diverged – namely, arbitrability of scope issues, the concept of delegation, and whether an express remedy limitation in a contract should be treated as a limit on a tribunal’s authority. For those interested in the iterative process that creates an ALI Restatement, this is a must read.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"43 1","pages":"469-492"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67097099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Impact of Marijuana Legalization on Youth and The Need for State Legislation on Marijuana-Specific Instruction in K-12 Schools","authors":"Amanda Harmon Cooley","doi":"10.2139/SSRN.2710124","DOIUrl":"https://doi.org/10.2139/SSRN.2710124","url":null,"abstract":"State legalization of marijuana is a divisive and polarizing issue that has resulted in fragmentation between governments and citizens. In contravention of federal law, voters in Colorado and Washington in 2012 and voters in Alaska and Oregon in 2014 approved ballot initiatives that legalized the state-regulated sale of marijuana to adults for their recreational use and possession. All of these measures continue to make marijuana unlawful for anyone under twenty-one, which is reflective of the shared understanding of the myriad harms that occur when non-adults access marijuana. Based on this understanding, this Article argues that any state that fully legalizes marijuana has a concomitant duty to amend its K-12 public school drug and alcohol instructional statutes to explicitly include marijuana education. Although none of these four states has enacted such legislation, this Article provides two, straightforward and necessary statutory alternatives to do so. These statutes would provide the predicate for the development of correlative marijuana-specific educational regulations and academic content standards in these states. This legislation is necessary as alternative current attempts to educate about marijuana in these states do not provide sufficient safeguards for their youth. Additionally, this legislation will help to ease the fracturing between federal and state governments as it would expressly comply with the federal funding conditions of the recent 2015 reauthorization of the Elementary and Secondary Education Act of 1965. Due to the Rawlsian overlapping consensus about the need to prohibit non-adult access to marijuana, this statutory amendment would not require a herculean political effort and could be a bridge between the partisan opponents on the issue of marijuana reforms. These legislative actions could also provide a model for future states that may legalize marijuana in the future. Finally, by enacting these statutes, these states will take strides to cure a significant legal deficiency that has the potential to cause irreparable harm to their children and greater populaces.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"44 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}