Category: Past Issues

Sabrina Safrin. This article helps lay the foundation for a new field of international law—International Law and Technology—and opens novel avenues of inquiry in law and technology and intellectual property more broadly. It analyzes as a starting point why some technologies generate global conflicts while others do not. Technologies that face international resistance can trigger a barrage of international legal responses, ranging from trade bans and WTO disputes to international regulatory regimes and barriers to patenting. Agricultural biotechnology triggered all of these legal flashpoints, while the cellphone, a technology that grew up alongside it, triggered none. Why? Understanding when a new technology will provoke an international legal firestorm is important to policymakers, business leaders, and lawyers. International controls on a new technology constrain state sovereignty and may impede or catalyze…

Agnieszka McPeak. Social media has entered the mainstream as a go-to source for personal information about others, and many litigators have taken notice. Yet, despite the increased use of social media in informal civil discovery, little guidance exists as to the ethical duties—and limitations—that govern social media snooping. Even further, the peculiar challenges created by social media amplify ambiguities in the existing framework of ethics rules and highlight the need for additional guidance for the bench and bar. This article offers an in-depth analysis of the soundness and shortcomings of the existing legal ethics framework, including the 2013 revisions to the American Bar Association’s model rules, when dealing with novel issues surrounding informal social media discovery. It analyzes three predominant ethics issues that arise: (1) the duty to investigate facts…

Carrie A. Laliberte. This Comment examines the relationship between the National Oceanic and Atmospheric Administration’s (NOAA) newly proposed shark finning rule and existing state shark finning legislation. Specifically, the analysis concludes that the NOAA rule should not be adopted as proposed because it would effectively weaken existing state laws, which are essential to protect the environment as well as sharks. In the alternative, this Comment maintains that cooperative federalism should be employed, as it has been for environmental laws in the past, to allow for a coexistence of federal and state law. Full Article

Matthew L.M. Fletcher. Two theories of tribal government authority under federal Indian law—territory-based authority and consent-based authority—are at war. No theory is acceptable to either tribal governance advocates or their opponents. The war plays out most dramatically in conflicts over tribal authority over nonmembers. The Supreme Court’s own precedents on whether tribes may exercise civil jurisdiction over nonmembers on tribal lands are in deep conflict. Ironically, while the Court has expressed serious concerns about the ability of tribes to guarantee fundamental fairness to nonmembers in general, the Court’s common law procedure for analyzing tribal jurisdiction makes irrelevant any evidence regarding the success or failure of tribal procedural guarantees. I propose a two-part common law test that first acknowledges a presumption in favor of tribal jurisdiction on tribal lands, where tribal…

Trisha Farrow. On September 29, 2013, over ten million people viewed the series finale of AMC’s Emmy Award winning hit, Breaking Bad.1 The series followed Walter White, a high school chemistry teacher in New Mexico, and his family.2 When Walter is diagnosed with stage III lung cancer and is given less than two years to live, his desire to provide for his family after his death drives him to use his chemistry background to produce methamphetamine. By the end of the series he and his partner, Jesse Pinkman, are the largest methamphetamine producers in the southwestern United States. In the series finale, both the cancer and the police are closing in on Walter, and he is struggling to find a way to leave his methamphetamine fortune to his family without…

Reid Peyton Chambers. I want to begin by thanking my longtime friend and colleague Bob Clinton for his too generous introduction, and to Bob and the faculty at the Law School for inviting me to give this lecture in honor of Judge Canby. I also want to thank my many friends and colleagues in the audience who have sat through water rights negotiations in Arizona with me over the past two decades for coming to listen to me once again, particularly in this context where I get to talk uninterrupted for an hour and they can only speak during the question period. Lastly, I want to thank Judge Canby for several things. First, for your continuing scholarship in Indian law during your busy and long tenure on the Ninth Circuit.…

Annemarie Bridy. This article explores the evolution of the federal government’s civil asset forfeiture practices from the war on drugs in the 1980s and 1990s to the currently escalating war on intellectual property piracy. I argue that recent developments in the war on piracy provide strong proof that legislative reform of the federal civil forfeiture system in 2000, which was intended to make the system fairer to property owners and less prone to abuse by law enforcement agents, did not substantially succeed in achieving either goal. The constitutional problems that remain in the federal civil forfeiture system are most acute with respect to the ex parte seizure of property alleged to facilitate crime—so-called facilitation property. Within that category, Internet domain names allegedly tainted by copyright crime present unique problems. “Property”…

Debra Pogrund Stark, Dr. Jessica M. Choplin, Dr. Joseph A. Mikels & Amber Schonbrun McDonnell. It was the best of loans, it was the worst of loans. For many seniors who are living on an inadequate fixed income with a home value that far exceeds any mortgage debt on it, a “reverse mortgage” might be a good method to address chronic cash shortages. Under this type of mortgage, the lender makes payments to the borrower that are not generally due until the senior passes away or moves from the home. Many seniors have expressed interest in this unique type of financing, and this number has grown exponentially in recent years, as there were ten times the number of seniors entering into reverse mortgages in 2007 as there were in 2001. But,…

Omari Scott Simmons. Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K–12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the…

Arden Rowell & Jessica Bregant. This Article presents an empirical study of how numeracy—or math skill—relates to legal decision making. We describe three findings. First, the study shows a surprisingly high level of math skill among law students, especially given the common folk wisdom that lawyers are bad at math. Second, although prior research in non-legal contexts has shown that people with low numeracy are particularly susceptible to cognitive bias, we detect no significant relationship between law students’ math skills and their susceptibility to bias or framing effects. Finally, and perhaps most strikingly, our findings show that the substance of legal analysis varies with math skill for at least some subset of cases. In particular, we find that law students with lower numeracy make decisions that are less consistent with…