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Faculty Scholarship

Law journal articles, and other scholarship by the faculty of California Western School of Law

Publications from 2012 2012

The North American Free Trade Agreement and Its Legacy on the Resolution of Intellectual Property Disputes, James Cooper

A Development Model Meets Piracy in Paraguay, James M. Cooper and Carlos Ruffinelli

The Gendered Aspects of Social Justice Work and Occupational Segregation in the Legal Academy: A Review of 2003, Barbara Cox

Luddite levity and summertime musing, Kathryn Fehrman

Making Lawyers out of Law Students: Shifting the Locus of Authority, Kathryn Fehrman and Tim Casey

Protected by Association? The Supreme Court’s Incomplete Approach to Defining the Scope of the Third-Party Retaliation Doctrine, Jessica Fink

The Coordination Conundrum, Catherine A. Hardee

Website Design and Liability, Nancy Kim

Review of "The Oceans in the Nuclear Age: Legacies and Risks", John E. Noyes

The Common Heritage of Mankind: Past, Present, and Future, John E. Noyes

Application of Default Rules to Address Financial Conflicts of Interest in Academic Medical Centers, Joanna K. Sax

Financial Conflicts of Interest in Science, Joanna K. Sax

A Term to Remember: The Supreme Court and the Future of Healthcare Reform, Steven R. Smith

Financing the Future of Legal Education: "Not What It Used to Be", Steven R. Smith

North American Border Wars: The Role of Canadian and American Scholarship in U.S. Labor Law Reform Debates, Michael J. Zimmer and Susan Bisom-Rapp

Publications from 2011 2011

Cooperation’s Cost, Miriam H. Baer

Decent Work, Older Workers, and Vulnerability in the Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States, Susan Bisom-Rapp, Andrew Frazer, and Malcolm Sargeant

Blood Sugar Sex Magik: A Review of Postconviction DNA Testing Statutes and Legislative Recommendations, Justin Brooks and Alexander Simpson

The Vulnerabilities of the Patient Protection and Affordable Care Act and the Tragedy of Repeal, Susan A. Channick

The Third Rail of U.S. Politics: The Current Immigration Debate in the United States, James Cooper and Yvette Lopez

The Categorical Approach for Crimes Involving Moral Turpitude After Silva-Trevino, Pooja R. Dadhania

The Supreme Court’s Open-Ended Protection Against Third-Party Retaliation Doctrine, Jessica Fink

Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, Andrea Freeman

Contract's Adaptation and the Online Bargain, Nancy Kim

When Enough Is Not Enough: Correcting Market Inefficiencies In The Purchase And Sale Of Residential Property Insurance, Kenneth S. Klein

William Howard Taft and the Taft Arbitration Treaties, John E. Noyes

Evaluation of academic scientists’ responses to situations that pose a conflict of interest, Joanna K. Sax

Protecting Scientific Integrity: The Commercial Speech Doctrine Applied to Industry Publications, Joanna K. Sax

More D (Deliberation) for California’s DD (Direct Democracy): Enhancing Voter Understanding and Promoting Deliberation Through Streamlined Notice-and-Comment Procedures, Glenn Smith

Legislative Reform of California’s Direct Democracy: A Field Guide to Recent Efforts, Glenn C. Smith

Mental Health and Medical Rights: The Supreme Court of the United States in 2010-2011, Steven R. Smith

The Rise of the Corporation, the Birth of Public Relations, and the Foundations of Modern Political Economy, Donald J. Smythe

The Road to Nowhere: Caterpillar v. Usinor and CISG Claims by Downstream Buyers Against Remote Sellers, Donald J. Smythe

A Summary and Analysis of Warrantless Arrest Statutes for Domestic Violence in the United States, April Zeoli, Alexis Norris, and Hannah Brenner

Publications from 2010 2010

Litigating the Arab-Israeli Conflict in U.S. Courts: Critiquing the Lawfare Critique, William J. Aceves

Organizational Liability and the Tension Between Corporate and Criminal Law, Miriam H. Baer

The California Public Defender: Its Origins, Evolution and Decline, Laurence A. Benner

Will Americans Embrace Single-Payer Health Insurance: The Intractable Barriers of Inertia, Free Market and Culture, Susan A. Channick

The Complicated Relationship: A Snapshot of the U.S.-Mexico Border, James Cooper

Why Appellate Courts Have Rejected the Argument that the Defense of Marriage Act Trumps the Parental Kidnapping Prevention Act, Barbara Cox

"And I Don't Know Why it is That You Threw Your Life Away": Abolishing Life Without Parole, The Supreme Court in Graham v. Florida Now Requires States to Give Juveniles Hope for a Second Chance, Leslie Culver

Drug Testing Students in California – Does it Violate the State Constitution?, Floralynn Einesman

A Crumbling Pyramid: How the Evolving Jurisprudence Defining “Employee” Under the ADEA Threatens the Basic Structure of the Modern Large Law Firm, Jessica Fink

Resistance, “Revolution,” and Reassessment 1981 - 1997, Richard J. Finkmoore

Foundations: The Public Domain and Natural Resources Law 1785 - 1960, Richard J. Finkmoore

Transborder Licensing: A New Frontier for Job Creation, Andrea L. Johnson

Arbitration's Summer Soldiers Marching into Fall: Another Look at Eisenberg, Miller, and Sherwin's Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts, Nancy Kim

Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content, Nancy Kim

Reasonable Expectations in Socio-Cultural Context, Nancy Kim

Following the Money – the Chaotic Kerfuffle Over Residential Insurance Proceeds that Simultaneously are the Only Rebuild Funds and the Only Mortgage Collateral, Kenneth S. Klein

In Discretion: The consequences of Twombly and Iqbal, Kenneth S. Klein

Is Ashcroft v. Iqbal the Death (Finally) of the “Historical Test” for Interpreting the Seventh Amendment?, Kenneth S. Klein

Removing the Blindfold and Tipping the Scales: The Unintended Lesson of Ashcroft v. Iqbal is that Frivolous Lawsuits may be Important to Our Nation, Kenneth S. Klein

Addressing Problems of Power and Supervision in Field Placements, Nancy M. Maurer and Robert F. Seibel

Teaching Interdisciplinary Collaboration: Theory, Practice, and Assessment, Linda Morton, Howard Taras, and Vivian Reznik

Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation, Joanna K. Sax

Life, Death, or Miranda: The Supreme Court Term 2009-2010, Steven R. Smith

View from the Trenches: The Struggle to Free William Richards, Jan Stiglitz

Publications from 2009 2009

Roger J. Traynor Professorship: John E. Noyes, William J. Aceves

The Life Cycle of Immigration: A Tale of Two Migrants, William J. Aceves, James M. Cooper, Alejandro Gonzalez, and Pedro Egana Marshall

Evaluating the Consequences of Calibrated Sentencing: A Response to Professor Kolber, Miriam H. Baer

Governing Corporate Compliance, Miriam H. Baer

The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California, Laurence A. Benner

What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy, Susan Bisom-Rapp

Can State Health Reform Initiatives Achieve Universal Coverage: Lessons from California’s Recent Failed Experiment, Susan A. Channick

Clara Shortridge Foltz Professorship Acceptance, Barbara Cox

Bargaining Power and Background Law, Nancy Kim

Website Proprietorship and Online Harassment, Nancy Kim

Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, Kenneth S. Klein

Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf, John E. Noyes

Justice Roger Traynor Professorship Acceptance, John E. Noyes

The United States and the Law of the Sea Convention: U.S. Views Concerning the Settlement of International Law Disputes in International Tribunals and U.S. Courts, John E. Noyes

From Expert Witnesses to ‘Fleeting Expletives’: The Supreme Court 2008-2009, Steven R. Smith

Interactive Group Learning in the Legal Writing Classroom: An International Primer on Student Collaboration and Cooperation in Large Classrooms, Roberta K. Thyfault and Kathryn Fehrman

Publications from 2008 2008

Corporate Policing and Corporate Governance: What Can We Learn from Hewlett-Packard's Pretexting Scandal?, Miriam H. Baer

Insuring Corporate Crime, Miriam H. Baer

Linkage and the Deterrence of Corporate Fraud, Miriam H. Baer

Reach-through claims for drug target patents, Robert A. Bohrer

Competing Legal Cultures and Legal Reform: The Battle of Chile, James Cooper

Proyecto ACCESO: The Use of Popular Culture to Build the Rule of Law in Latin America, James Cooper

“A Painful Process of Waiting”: The New York, Washington, New Jersey, and Maryland Dissenting Justices Understand that “Same-Sex Marriage” is Not What Same-Sex Couples Are Seeking, Barbara Cox

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants, Jessica Fink

Imposing Tort Liability on Websites for Cyber Harassment, Nancy Kim

Internet Challenges to Business Innovation, Nancy Kim

Mistakes, Changed Circumstances and Intent, Nancy Kim

The Software Licensing Dilemma, Nancy Kim

Encouraging Physician-Attorney Collaboration through More Explicit Professional Standards, Linda Morton, Howard Taras, and Vivian Reznik

Louis B. Sohn and the Law of the Sea, John E. Noyes

Places of Refuge for Ships, John E. Noyes

Rabenmutter and the Glass Ceiling: An Analysis of Role Conflict Experienced by Women Lawyers in Germany as Compared with Women Lawyers in the United States, Jacquelyn H. Slotkin

Gresham’s Law in Legal Education, Steven R. Smith

The Supreme Court 2007-2008: Competency, Gun Control, and Capital Punishment, Steven R. Smith

Deductions in a Proposed Calculation and Allocation of Distributable Net Income to the Separate Shares of a Trust or Estate, Michael T. Yu

Publications from 2007 2007

Three Modes of Legal Problem Solving–and What to Do About Them in Legal Education, Thomas D. Barton

Drug Testing of Students: A Legal and Public Health Perspective, Floralynn Einesman

Clicking and Cringing, Nancy Kim

Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability, Nancy C. Marcus

U.S. Policy and the United Nations Convention on the Law of the Sea, John E. Noyes

A Gendered Update on Women Law Deans: Who, Where, Why, and Why Not?, Laura M. Padilla

Reforming FDA Policy for Pediatric Testing: Challenges and Changes in the Wake of Studies Using Antidepressant Drugs, Joanna K. Sax