Pepperdine law review最新文献

{"title":"Worshiping Separation: Worship in Limited Public Forums and the Establishment Clause","authors":"W. Glaser","doi":"10.2139/SSRN.2039738","DOIUrl":"https://doi.org/10.2139/SSRN.2039738","url":null,"abstract":"This student comment examines the circuit split regarding whether \"worship\" can be permissibly excluded from limited public forums. It argues that singling out worship for exclusion conflicts with Supreme Court precedent and the historical tradition of using public buildings for public worship services.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"38 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2011-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67875378","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":"A Fatal Loss of Balance: Dred Scott Revisited","authors":"D. Farber","doi":"10.2139/SSRN.1782963","DOIUrl":"https://doi.org/10.2139/SSRN.1782963","url":null,"abstract":"This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a \"limited government\" argument for a narrow interpretation of Congress's enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in fair procedure within the Court itself.Taney's exercise in originalism highlights some pitfalls that present-day originalists would do well to avoid. His effort to read all of the Constitution through a states' rights, pro-slavery lense also dramatizes the risks of foundationalism. Taney's opinion lacks any sense of balance - a failing at any time for a judge, but particularly dangerous when the nation is poised over a historic abyss.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"39 1","pages":"13"},"PeriodicalIF":0.0,"publicationDate":"2011-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67743130","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":"Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should be Treated Like Criminal Defendants Under the Felony Impeachment Rule","authors":"Colin Miller","doi":"10.2139/SSRN.1260390","DOIUrl":"https://doi.org/10.2139/SSRN.1260390","url":null,"abstract":"With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The \"mercy rule\" falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended the \"mercy rule\" to civil parties in quasi-criminal cases because they were in most respects similar to criminal cases. Congress finally shut the door to this practice based upon the serious risks of prejudice, confusion, and delay that propensity character evidence engenders.These same risks, however, support treating civil parties in quasi-criminal cases the same as criminal defendants under the felony impeachment rule. That rule, Rule 609(a)(1), makes it much more difficult for courts to exclude the felony convictions of civil parties than it is for them to exclude the felony convictions of testifying criminal defendants. It is thus the only Federal Rule of Evidence which makes it easier to admit evidence which can be misused as propensity character evidence in civil trials than it is in criminal trials. Courts should correct this anomaly by treating civil parties in quasi-criminal cases the same as criminal defendant under the Rule.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"36 1","pages":"997"},"PeriodicalIF":0.0,"publicationDate":"2008-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1260390","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68153223","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":"For Whom the Little Bells Toll: Recent Judgments by International Tribunals on the Legality of Cluster Munitions","authors":"Virgil Wiebe","doi":"10.2139/SSRN.1008990","DOIUrl":"https://doi.org/10.2139/SSRN.1008990","url":null,"abstract":"\"Little bells\" refer to cluster bomblets in Serbo-Croatian. Two international tribunals recently have found defendants liable for civilian deaths caused by cluster munitions. These decisions may herald a turning point in the regulation of these weapons. In 2004, the Eritrea-Ethiopia Claims Commission held Eritrea liable for civilians killed in cluster munition strikes on Mekele, Ethiopia. On June 12, 2007, the International Criminal Tribunal for the Former Yugoslavia held the former president of the now defunct Serbian Republic of Krajina criminally liable for deaths and injuries resulting from cluster munition rocket attacks on Zagreb. Cluster bombs came back onto the world stage during the 2006 war between Israel and Hezbollah, with both sides of the conflict deploying the weapon in irresponsible ways. By early 2007, momentum had gathered for a treaty banning cluster bombs. Efforts are also underway at the national level to regulate their use. The two judgments have much to contribute to the current debate over how to eliminate or limit the humanitarian impact of cluster munitions. These cases are the only ones to date to address several humanitarian law issues in the debate over cluster munition regulation. Adjudicators grappled with whether the characteristics of cluster munitions can be used as evidence of intent to attack civilians or of indiscriminate and disproportionate attacks; what precautions users of these weapons must take in advance; and what role does foreknowledge about the wide area nature as well as landmine-like effects of cluster munitions have on culpability. This article analyzes the two judgments in detail and presents lessons to be learned: A. Advance Awareness of Cluster Weapon Characteristics Can Lead to Criminal Liability B. The Use of Unguided Cluster Munitions With Wide Area Effects May Lead to Criminal Liability C. Cluster Munition Use Against Military Targets in Civilian Areas Should Be Presumptively Off-Limits D. Restricting Cluster Munition Use Should Not Be Seen as a Green Light to Use Even More Destructive Weapons Indiscriminately E. Duds Matter: Probable Harm in the Immediate and Longer Term Aftermath Must Be a Part of the Proportionality Equation F. Magic Bullets? Why Trying to Build Better Cluster Bombs Does Not Resolve All the Indiscriminate Effects Associated with Their Use","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"35 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2007-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68123282","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":"Stem cell research and conditional federal funding: do state laws allowing more extensive research pose a problem for federalism?","authors":"Charity Schiller","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"31 4","pages":"1017-54"},"PeriodicalIF":0.0,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25886870","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":"Forgotten Supreme Court abortion cases: Drs. Hawker and Hurwitz in the deck and defrocked.","authors":"Roy Lucas","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"30 4","pages":"641-70"},"PeriodicalIF":0.0,"publicationDate":"2003-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24599842","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":"Fetal pain legislation: is it viable?","authors":"Teresa Stanton Collett","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"30 2","pages":"161-84"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24599841","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":"Interpreting Nonshareholder Constituency Statutes","authors":"Stephen M. Bainbridge","doi":"10.2139/SSRN.310261","DOIUrl":"https://doi.org/10.2139/SSRN.310261","url":null,"abstract":"Nonshareholder constituency statutes permit directors to consider the effects of their decisions on a variety of nonshareholder interests, such as employees, customers, suppliers, and local communities. Although highly controversial within the corporate law academy, such statutes are on the books in well over half the states and are likely to remain so for the foreseeable future. Because the statutes offer surprisingly little guidance to directors faced with corporate decisions or to courts faced with reviewing those decisions, however, courts urgently need a coherent interpretation of the statutes. But coherence alone is not enough; courts must also be faithful to the legislative intent behind the statutes. Courts cannot ignore the statutes, wish them away, or fairly interpret them as having no meaning or impact. This article therefore proposes an interpretation of nonshareholder constituency statutes that is faithful to the apparent legislative intent while also maintaining continuity with well-established principles of director fiduciary duties. The proposed approach distinguishes between two basic categories of director decisions: (i) operational issues, such as plant closings; and (ii) structural decisions, such as takeovers. The latter pose a much more serious conflict of interest for directors than do the former and therefore demand closer scrutiny. Accordingly, while arguing that director decisions with respect to operational matters should be conducted under the business judgment rule, the article argues that director decisions in the structural setting should be reviewed under a variant of the conditional business judgment rule developed by the Delaware supreme court in Unocal Corp. v. Mesa Petroleum Co.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"19 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2002-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.310261","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68561435","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":"Two kinds of statistics, the kind you look up and the kind you make up: a critical analysis of comparative provider statistics and the doctrine of informed consent.","authors":"Jennifer Wolfberg","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"29 3","pages":"585-608"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25859247","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":"International Dispute Settlement at the Trademark-Domain Name Interface","authors":"L. Helfer","doi":"10.2139/SSRN.265922","DOIUrl":"https://doi.org/10.2139/SSRN.265922","url":null,"abstract":"This essay identifies some of the emerging legal issues relating to the Uniform Domain Name Dispute Resolution Policy (\"UDRP\"), a new anational online dispute settlement system established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers in late 1999. The UDRP creates a fast and inexpensive mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks.The UDRP is worthy of serious study for at least two reasons. First and foremost, the process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international dispute settlement, not only for intellectual property rights but also for international law generally. These differences in creation and structure raise questions about the UDRP's legitimacy and thus the legitimacy of the case law it is producing.Second, UDRP is already being heralded by national and international lawmakers as a model for resolving a much broader set of transborder legal problems. Although certain aspects of the UDRP may be worthy of emulation, this essay asks some hard questions about how anational dispute settlement systems ought to be structured. It focuses in particular on the mechanisms used to control the limited powers granted to dispute settlement decisionmakers such as UDRP panels. And it proposes several steps that ICANN should take to bolster the legitimacy of this new dispute settlement system.","PeriodicalId":82287,"journal":{"name":"Pepperdine law review","volume":"29 1","pages":"87"},"PeriodicalIF":0.0,"publicationDate":"2001-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.265922","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68241756","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}