Santa Clara Law’s distinguished faculty includes nationally and internationally recognized scholars. For the 2011-2012 academic year, the Law School recognizes the following faculty as “Center Scholars” for their scholarship connected to the Law School Centers of Excellence – the Center for Global Law and Policy, the Center for Social Justice and Public Service, and the High Tech Law Institute.
Colleen Chien will publish a study of patent interest group politics, Patent Amicus Briefs: What the Courts’ Friends Can Teach us about the Patent System, in the University of California at Irvine Law Review and a paper on patent strategy and the rise of the patent marketplace, From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System, in the Hastings Law Journal. Professor Chien spoke at numerous national and regional law conferences on topics including PTO Reform (Stanford), Empirical Patent Law (Northwestern), Patent Cross-Licensing (Berkeley), Clean Technology (UC Davis and Santa Clara University School of Law), and Cross-Border Patent Issues (Paris). She hosted and moderated panels during visits by Federal Circuit judges and the Solicitor of the US Patent and Trademark Office to Santa Clara Law. Finally, Professor Chien participated in a roundtable hosted by the FTC, DOJ and USPTO in late May during which her work on the ITC was featured. The program was held at the PTO and addressed the interaction between patent and competition policies as part of ongoing joint work by the agencies in this area.
Brad Joondeph joined the Santa Clara University law faculty in 2000, specializing in constitutional law and the Supreme Court of the United States. He graduated from Stanford University (B.A.,1990) and Stanford Law School (J.D.,1994). He served as a judicial clerk to the Honorable Deanell Reece Tacha (U.S. Court of Appeals for the Tenth Circuit, 1994–1995) and to the Honorable Sandra Day O’Connor (Supreme Court of the United States, 1999–2000). He has authored several articles about federalism, judicial decision making, and American constitutional development, including The Partisan Dimensions of Federal Preemption in the United States Courts of Appeals, 2011 Utah L. Rev. (forthcoming), Business, the Roberts Court, and the Solicitor General: Why the Supreme Court’s Recent Business Decisions May Not Reveal Very Much, 49 Santa Clara L. Rev. 1103 (2009), The Many Meanings of Politics in Judicial Decisionmaking, 77 U.M.K.C. L. Rev. 349 (2009), Federalism, the Rehnquist Court, and the Modern Republican Party, 87 Or. L. Rev. 117 (2008), and Judging and Self-Presentation: Towards a More Realistic Conception of the Human (Judicial) Animal, 48 Santa Clara L. Rev. 523 (2008). He is currently working on an article entitled Federalism and Health Care Reform: Understanding the States’ Challenges to the Affordable Care Act.
Michelle Oberman continues her work on mothers who kill, increasingly taking an international and comparative perspective on the topic. She was awarded a Fulbright Scholarship to Chile for 2011, where she will study the phenomenon of neonaticide as it occurs in a country in which abortion is completely prohibited. Her recent book, When Mothers Kill (New York University Press, 2008), was awarded the 2008 Outstanding Book of the Year Award from the Academy of Criminal Justice Sciences, the largest international group representing criminal justice scholars and practitioners.
Professor Oberman’s focus on women’s reproductive health and rights has led her to Central America, where she is working with community-based coalitions on issues of norm-clarification and education in El Salvador.
Her current writing passion and focus lies in a genre she has coined: “ethnographic legal scholarship.” She has written two law review articles in this “new” voice: ( Judging Vanessa: Norm Setting & Deviance in the Law of Motherhood, 15 Wm. & Mary J. Women & the Law 337 (2009) and Eva and her Baby (A Story of Adolescent Sex, Pregnancy, Longing, Love, Loneliness and Death), Duke J. Gender Pol’y & the Law (2009) In addition, she wrote an essay reconsidering the notorious Buck v. Bell case in light of contemporary mechanisms by which governments regulate reproduction. The essay is entitled Thirteen Ways of Looking at Buck v. Bell: Thoughts Occasioned by Paul Lombardo’s Three Generations, No Imbeciles, Journal of Legal Education, Volume 59, Number 3 (February 2010).
David Hasen is researching the idea of neutrality in international taxation. A large body of scholarship has attempted to identify and defend appropriate norms for ensuring that tax rules for cross-border arrangements are “neutral” with respect to economic decision making. Most of the scholarship in the area treats taxes as pure costs that do not provide identifiable benefits to those who pay them. In his judgment, this approach fails to appreciate the extent to which higher taxes may improve social welfare, and, conversely, the extent to which tax competition can seriously impair the ability of developing countries to raise their standards of living. In his scholarship, Professor Hasen will develop the idea that it is more helpful to consider taxes as, in part, paying for identifiable goods. From this perspective, rules that encourage higher taxes may actually be welfare-enhancing on a worldwide basis, even though these rules may introduce both rate differentials among countries and higher total tax collections worldwide.
Past Center Scholars
Professor Diamond is completing a study of the structural changes underway in the financial markets with Jennifer Kuan of Stanford’s Institute for Economic Policy Research. Their paper was presented recently at the Sloan Industry Studies Conference in Chicago and will be presented at the International Society for New Institutional Economics meetings this month at U.C. Berkeley. He will be presenting a paper on private equity and “financialization” at the meetings of the Society for the Advancement of Socio-Economics this summer at Science Po in Paris this summer. He served as an expert witness in two cases involving corporate governance in the high technology sector this past year and advised two startup companies founded by SCU students.
Kerry Lynn Macintosh
Professor Macintosh’s scholarship focuses on assisted reproductive technologies and human cloning. During the last year, she completed a law review article entitled Brave New Eugenics: Regulating Assisted Reproductive Technologies in the Name of Better Babies. Critics have demanded increased regulation of assisted reproductive technologies (“ART”) on the ground that children conceived through these technologies have an increased risk of birth defects and other health problems. “Brave New Eugenics” explains that these health problems may be linked to the underlying characteristics of disabled (infertile) parents, rather than ART as such. The only way to make sure that the parents do not have children with health problems would be to prevent them from using ART to conceive children in the first place. Such “safety” regulation would be similar in purpose and effect to the eugenic sterilization laws of the twentieth century. Brave New Eugenics argues that the fertile majority should not enact coercive laws and regulations that undermine reproductive autonomy, oppress the infertile minority, stigmatize children, and weaken our commitment to egalitarianism.
During the next academic year, Professor Macintosh will begin to research a new book entitled Human Cloning in the Stone Age. This book will analyze the politics and law of human cloning in psychological terms. She will explain how essentialism has created strange political bedfellows, distorted the debate over research cloning and stem cells, and led to the enactment of laws that seek to discriminate against human clones.
FREEDOM OF ASSEMBLY AND PETITION: THE FIRST AMENDMENT, ITS CONSTITUTIONAL HISTORY AND THE CONTEMPORARY DEBATE (Bill of Rights Series) (2010).
Abstract for FREEDOM OF ASSEMBLY AND PETITION: THE FIRST AMENDMENT, ITS CONSTITUTIONAL HISTORY AND THE CONTEMPORARY DEBATE:
The First Amendment of the US Constitution’s Bill of Rights provides expressive freedoms through a number of “clauses.” Among these, the least explored clauses are the Assembly and Petition Clauses, which provide that “Congress shall make no law…abridging…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Most scholarly literature about the First Amendment omits consideration of these core concepts, which date back at least as far as the Magna Carta. This omission exists despite the fact that the US Supreme Court has termed these rights “among the most precious of liberties guaranteed by the Bill of Rights” (United Mine Workers v. Illinois Bar Association ).
This is the first anthology of scholarship about the Assembly and Petition Clauses, and as such it is a valuable addition to First Amendment literature. Editor Margaret M. Russell has assembled articles that shed light on the origins, history, scope, and contemporary relevance of the rights of petition and assembly.
The first section treats the meaning of the assembly and petition clauses together and in constitutional context, in response to some scholars who have pointed out that the two rights are linguistically and inextricably linked in the text of the First Amendment. The second section turns separately to the Petition Clause, which only in the past two decades has generated significant legal scholarly attention. The third section focuses on the Assembly Clause, which has sparked considerably less scholarly attention, perhaps because it is often collapsed conceptually with the Free Speech clause.
This lucidly written, well-organized anthology will be of great value to students and scholars of the law, American history, and political science, as well as anyone with an interest in our basic rights.
Exempting High-Level Employees and Small Employers from Legislation Invalidating Predispute Employment Arbitration Agreements, 43 U.C. Davis Law Review __ (forthcoming 2009).
Abstract for Exempting High-Level Employees and Small Employers from Legislation Invalidating Predispute Employment Arbitration Agreements.
On February 12, 2009, lawmakers in the U.S. House of Representatives introduced the “Arbitration Fairness Act of 2009.” That bill, if enacted, would invalidate any predispute arbitration agreement between an employer and its employee. Last year, the 110th Congress considered the narrower “Preservation of Civil Rights Protections Act of 2008,” which would have invalidated “any clause of any [predispute] agreement between an employer and an employee that requires arbitration of a dispute arising under” federal civil rights laws. This Article explores how best to structure any such invalidation of predispute employment arbitration agreements, in light of the rationales for and against regulation of the employment relationship generally, and in light of the rationales for and against regulation of employment arbitration agreements specifically. The Article argues that any legislation invalidating predispute employment arbitration agreements should be complete as to subject matter. More specifically, the legislation should cover both statutory employment discrimination claims as well as state common law employment claims. The Article further argues, however, that any such legislation should exempt from its coverage claims by or against certain high-level employees and claims by or against certain small employers. Finally, the Article goes on to consider how to structure these exemptions in a manner that would maximize the likelihood of identifying the entities most meriting an exemption while minimizing the likelihood of litigation over who qualifies for an exception. The Article proposes an exemption for high-level employees that borrows and modifies concepts from the Age Discrimination in Employment Act, the Family and Medical Leave Act, and the National Labor Relations Act. Further, the Article proposes an exemption for small employers that borrows and modifies concepts from Title VII of the Civil Rights Act and 42 U.S.C. Section 1981a.
Beth Van Schaack
Professor Van Schaack’s article Finding the Tort of Terrorism in International Law is part of a symposium on civil litigation and terrorism. The article focuses on the potential of the Alien Tort Statute (ATS) to serve as a vehicle for asserting civil claims in U.S. courts for acts of terrorism. Although this paper primarily considers terrorism torts under the “law of nations” prong of the ATS (which requires a showing that the relevant prohibition is part of customary international law), terrorism torts may provide a vehicle for activating the ATS’s dormant treaty prong as well, given the strong support for the terrorism treaties exhibited by the United States and the high degree of domestic incorporation of the crimes identified therein. One of the first modern cases to be filed under the Alien Tort Statute, Tel-Oran v. Libyan Arab Republic, immediately called into question the utility of the ATS as a counter-terrorism tool. Ever since, the statute has been relatively underutilized in this context, even while U.S. courts have gradually extended jurisdiction under the ATS over other international crimes. Meanwhile, the U.S. Congress has vastly expanded opportunities for U.S. nationals to pursue civil claims in domestic courts for acts of terrorism. For example, the Antiterrorism Act (ATA) enables U.S. nationals – as well as their estates, survivors, and heirs – to sue individuals responsible for personal, property, or business injuries incurred by reason of acts of international terrorism. U.S. victims and claimants may also sue states and state agents implicated in acts of terrorism under the Foreign Sovereign Immunity Act (FSIA), so long as the state itself has been specifically designated as a “sponsor of terrorism” by the Department of State or where the circumstances otherwise satisfy one of the codified exceptions to foreign sovereign immunity. As compared with these statutory causes of action for U.S. citizen victims and claimants, only the ATS has the potential to provide jurisdiction over civil claims arising out of acts of terrorism brought by non-nationals who have access to U.S. courts. This paper argues that the uncertainty surrounding the availability of the ATS to permit such terrorism claims reveals a lacuna in the United States’ anti-terrorism statutory scheme.
Since the U.S. Supreme Court issued its landmark opinion in Sosa v. Alvarez-Machain and finally set forth a methodology for considering actionable claims under the ATS, a few cases involving terrorism allegations have begun to work their way through the federal court system. Although it is still difficult to draw broad conclusions, the existing cases do demonstrate that the various federal statutes – the ATA, FSIA, and ATS – can work in tandem to provide causes of action to alien and U.S. plaintiffs injured in terrorist incidents. Furthermore, litigants are creatively utilizing multiple causes of action drawn from statutes, the common law, and international law to press their claims. While the federal courts have yet to definitively recognize a standalone cause of action for terrorism stricto sensu, developments in the law of terrorism at the international level reveal the gradual crystallization of a consensus set of elements that comprise a definitive prohibition against terrorism applicable to all but a narrow set of circumstances. What lingering definitional impasse exists highlights an unsettled and highly contentious area of international law: the legal categorization and consequences of attacks by unprivileged combatants against privileged combatants or military targets. In all other situations, the international law governing acts of terrorism is sufficiently precise, robust, and uncontroversial to support the recognition by the federal courts of a cause of action for terrorism under the ATS, assuming the other jurisdictional requirements are satisfied. Recognizing such causes of action will bolster the United States’ counter-terrorism regime by enabling a broader array of victims of acts of terror to pursue the assets of individuals and groups that finance or otherwise support acts of terrorism.
Read the entire article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331021#”