Volume 67
Apple Pay, Bitcoin, and Consumers: The ABCs of Future Public Payments Law
Mark Edwin Burge Volume 67, Issue 6, 1493-550 As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears...
An “Act of God”? Rethinking Contractual Impracticability in an Era of Anthropogenic Climate Change
Myanna Dellinger Volume 67, Issue 6, 1551-620 “Extreme” weather has become the new normal. Previously considered to be inexplicable and unpredictable “acts of God,” such weather can no longer reasonably be said to be so. They are acts of man....
Preventing Opioid Misuse with Prescription Drug Monitoring Programs: A Framework for Evaluating the Success of State Public Health Laws
Rebecca L. Haffajee Volume 67, Issue 6, 1621-94 he United States is in the midst of a prescription opioid overdose and misuse epidemic. Although many factors have contributed to the escalation of prescription painkiller misuse, it parallels...
Miranda Overseas: The Law of Coerced Confessions Abroad
David Keenan Volume 67, Issue 6, 1695-732 In recent years, Article III courts have become the preferred venue for the U.S. government to try terrorism suspects captured abroad. Many liberals have welcomed this development, characterizing it as...
California Charter School Teachers: Flexibility in the Classroom, Vulnerability as an Employee
Jennifer Hom Chen Volume 67, Issue 6, 1733-68 Since the passage of the Charter Schools Act of 1992, charter schools have been hailed for achieving better results for students compared to traditional public schools in California. In particular,...
Simplicity v. Reality in the Workplace: Balancing the Aims of Vance v. Ball State University and the Fair Employment Protection Act
Elizabeth Lee Volume 67, Issue 6, 1769-804 Under Title VII of the Civil Rights Act of 1964, an employer can be held liable for harassment or discrimination by a supervisor. In 2013, in Vance v. Ball State University, the Supreme Court narrowed...
Editing Embryos: Considering Restrictions on Genetically Engineering Humans
Anna Zaret Volume 67, Issue 6, 1805-40 In April 2015, scientists used a new genetic engineering tool known as CRISPR to edit the genes of a human embryo for the first time. CRISPR has made gene editing cheaper, more efficient, and more accurate...
Symposium Keynote: Advancing Equal Access to Justice: Barriers, Dilemmas, and Prospects
Advancing Equal Access to Justice: Barriers, Dilemmas, and Prospects Hon. Tani G. Cantil-Sakauye Volume 67, Issue 5, 1181-90 Keynote Address: University of California Hastings College of the Law, November 12, 2015 Full Article
How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering
Gillian K. Hadfield and Deborah L. Rhode Volume 67, Issue 5, 1191-224 Scholars and critics have for decades advocated change in the professional regulation of legal services markets in order to solve the ever-widening gap in access to justice....
Lifting the “American Exceptionalism” Curtain: Options and Lessons from Abroad
Earl Johnson Jr. Volume 67, Issue 5, 1225-64 Contrary to its public rhetoric promising “justice for all” and “equal justice under law,” access to civil justice in the United States is “exceptional” only in a negative sense. The Rule of Law...
Bridging the Justice Gap in Family Law: Repurposing Federal IV-D Funding to Expand Community-Based Legal and Social Services for Parents
Stacy Brustin and Lisa Martin Volume 67, Issue 5, 1265-98 Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal...
From Victims to Litigants
Elizabeth L. MacDowell Volume 67, Issue 5, 1299-330 This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts...
A Comparison Between the American Markets for Medical and Legal Services
Ben Barton Volume 67, Issue 5, 1331-66 America’s access to justice woes are paradoxical. We have more lawyers than every country except India and more lawyers per capita than every country except for Israel. We spend more on law as an absolute...
Can a Little Representation Be a Dangerous Thing?
Colleen F. Shanahan, Anna E. Carpenter, and Alyx Mark Volume 67, Issue 5, 1367-88 Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be...
Litigants Without Lawyers: Measuring Success in Family Court
Marsha M. Mansfield Volume 67, Issue 5, 1389-426 As thousands of litigants access our court systems without lawyers, the debate whether these litigants receive procedural and substantive justice has intensified. Nationwide, eighty percent of...
Collection Texas-Style: An Analysis of Consumer Collection Practices in and out of the Courts
Mary Spector and Ann Baddour Volume 67, Issue 5, 1427-67 As many as forty-four percent of Texans with credit files have nonmortgage debt in collection; this is more than ten percent above the national average. The Authors provide a snapshot of...
Designing the Competition: A Future of Roles Beyond Lawyers? The Case of the USA
Rebecca L. Sandefur and Thomas M. Clarke Volume 67, Issue 5, 1467-92 Most of the civil justice problems Americans experience never receive service from an attorney. Indeed, daily around the country, thousands of people arrive at court not only...
Legal Indeterminacy in Insanity Cases: Clarifying Wrongfulness and Applying a Triadic Approach to Forensic Evaluations
Kate E. Bloch and Jeffrey Gould Volume 67, Issue 4, 913-56 Insanity law in the United States embodies a convoluted collection of often ill-defined standards. The wrongfulness test, which is used in most U.S. jurisdictions, requires a...
Does Antidiscrimination Law Influence Religious Behavior? An Empirical Examination
Netta Barak-Corren Volume 67, Issue 4, 957-1022 What role should the behavioral reality of conflicts regarding gender, sexuality, and religious convictions play in the theory and doctrine of antidiscrimination law? Although the past several...
Sufficiently Safeguarded?: Competency Evaluations of Mentally Ill Respondents in Removal Proceedings
Sarah Sherman-Stokes Volume 67, Issue 4, 1023-66 In this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration,...
Understanding Validity in Empirical Legal Research: The Case for Methodological Pluralism in Assessing the Impact of Science in Court
Teneille R. Brown, James Tabery, and Lisa G. Aspinwall Volume 67, Issue 4, 1067-86 What makes a study valid or invalid? In 2013, the Hastings Law Journal published a law review article by law professor Deborah Denno entitled What Real-World...
Confronting Williams: The Confrontation Clause and Forensic Witnesses in the Post-Williams Era
Taryn Jones Volume 67, Issue 4, 1087-118 In Williams v. Illinois, the division of the U.S. Supreme Court created substantial confusion as to the proper application of the Confrontation Clause to forensic witnesses. In the decision, the Court...
Coordination or Consolidation? Accountable Care Organizations and Antitrust Policy Under the Medicare Shared Savings Program
Michael J. Montgomery Volume 67, Issue 4, 1119-52 The U.S. health care system is expensive, fragmented, poorly organized, and fails too often to deliver high quality care that is both accessible and cost efficient. In 2014, Americans spent an...
In re A-R-C-G-: A Game-Changer for Children Seeking Asylum on the Basis of Intrafamilial Violence
Sarah M. Winfield Volume 67, Issue 4, 1153-80 After over a decade of advocacy on behalf of women fleeing their home countries because of horrific domestic violence, practitioners and legal scholars obtained a precedential legal victory in...
Weed and Water Law: Regulating Legal Marijuana
Ryan B. Stoa Volume 67, Issue 3, 565-622 Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska,...
Collective Liberty
Josh Blackman Volume 67, Issue 3, 623-86 The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these two is well known. Judicial protection of individual liberty...
Internal Jus ad Bellum
Eliav Lieblich Volume 67, Issue 3, 687-748 In 1945, the United Nations Charter famously set out “to save succeeding generations from the scourge of war.” Having in mind traditional interstate wars, the Charter’s Article 2(4) outlawed, for the...
Hedgehogs and Foxes: The Case for the Common Law Judge
Evelyn Keyes Volume 67, Issue 3, 749-806 With the epigram, “The fox knows many things, but the hedgehog knows one great thing,” Ronald Dworkin, America’s foremost contemporary legal philosopher, summarized his lifelong quest for the objectively...
Smoke and Mirrors: How Current Firearm Relinquishment Laws Fail to Protect Domestic Violence Victims
Laura Lee Gildengorin Volume 67, Issue 3, 807-48 In 2011, two-thirds of murdered women died at the hands of a current or former intimate partner who used a firearm. Thus, it is imperative to remove guns from the control of domestic violence...
Talent for Sale: The Need for Enhanced Scrutiny in Judicial Evaluation of Acqui-Hires
Samantha Nolan Volume 67, Issue 3, 849-80 Large technology corporations are purchasing smaller companies at an increasing rate with one goal in mind—engineers. This practice has recently been given its own name—acqui-hiring. The buying...
Subverting Workers’ Rights: Class Action Waivers and the Arbitral Threat to the NLRA
Nicole Wredberg Volume 67, Issue 3, 881-912 The National Labor Relations Act (“NRLA”) was born out of the industrial strife of the Great Depression and provides for employee collective rights in order to prevent the potentially devastating...
California Constitutional Law: The Right to an Adequate Education
Anne D. Gordon Volume 67, Issue 2, 323-66 Plaintiffs’ victory in Vergara v. State, a case about teacher evaluation and employment regulations, has thrust the issue of educational adequacy into the spotlight in California. Campaign for Quality...
Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals
Harold J. Krent and Scott Morris Volume 67, Issue 2, 367-406 This study of federal court decisionmaking asks whether characteristics of a jurist including age, race, gender, and work experience, can affect results in the context of the nation’s...
Remedial Clauses: The Overprivatization of Private Law
Seana Valentine Shiffrin Volume 67, Issue 2, 407-42 This Article considers the growing trend to enforce liquidated damages agreements or what I think are more felicitously called “remedial clauses.” I criticize this trend on the grounds that a...
Network Equality
Olivier Sylvain Volume 67, Issue 2, 443-98 One of the clear goals of the federal Communications Act is to ensure that all Americans have reasonably comparable access to the Internet without respect to whom or where they are. Yet the main focus...
Beyond Control and Without Fault or Negligence: Why Japan Should Be Excused from Meeting Its Kyoto Protocol Obligations
Regina Durr Volume 67, Issue 2, 499-530 The purpose of this Note is to show how force majeure can excuse Japan from its reduced CO2 emissions target due under the Kyoto Protocol. The Kyoto Protocol is the first and only binding international...
Sex Trafficking Legislation Under the Scope of the Harm Principle and Moral Panic
Lesley Rae Hamilton Volume 67, Issue 2, 531-64 On May 20, 2014 the House of Representatives passed the Stop Advertising Victims of Exploitation Act of 2014 (“SAVE Act”). The SAVE Act would have amended the federal criminal code to prohibit...
A Message from the Editor-in-Chief
Lesley Rae Hamilton Volume 67, Issue 1 It is a dynamic time for the legal profession. Law firms, big and small, are innovating the way they run their businesses and deliver their services, resulting in positive changes for both clients and...
Disruptive Innovation: New Models of Legal Practice
Joan C. Williams, Aaron Platt, and Jessica Lee Volume 67, Issue 1, 1-84 For decades, lawyers have been complaining that they hate working at law firms, and clients have expressed increasing frustration with high legal fees. But complaining is...
Resurrecting Health Care Rate Regulation
Erin C. Fuse Brown Volume 67, Issue 1, 85-142 Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market...
Overcoming the Public-Private Divide in Privacy Analogies
Victoria Schwartz Volume 67, Issue 1, 143-94 When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the...
Databasing Delinquency
Kevin Lapp Volume 67, Issue 1, 195-258 Technological advances in recent decades have enabled an unprecedented level of surveillance by the government and permitted law enforcement to gather, store, and retrieve in real time enormous amounts of...
The Problem of Reverse Payments in the Pharmaceutical Industry Following Actavis
Traci Aoki Volume 67, Issue 1, 259-92 Reverse payments are payments that are made as a component of a patent infringement settlement, between a brand-name pharmaceutical company to a competitor who is attempting to market a generic version of...
Whaling in Circles: The Makahs, the International Whaling Commission, and Aboriginal Subsistence Whaling
Monder Khoury Volume 67, Issue 1, 293-322 In Anderson v. Evans, the Ninth Circuit held that the International Whaling Commission (“IWC”) Schedule’s approval of a quota to hunt whales for the Native American Makah Tribe (“Makahs”) violated the...